Ad description
Two e-mails, for surveys and promotions:
a. The first e-mail, sent 12 March 2011, stated "OfferX has 300 pounds for Sainsburys [sic] to give away" in the ‘Subject’ field, and the ‘From’ field stated "Sainsburys [sic] Coupons", followed by an e-mail address. The body of the e-mail used Sainsbury's branding and stated "WIN £300 Sainsburys [sic] Vouchers Splash out at the Nation's favourite Supermarket Sainsbury's offers a fantastic range of food and drink as well as products for the home and garden, toys and games, electrical appliances, sports and leisure and much, much more. We're giving away £300 worth of Sainsbury's Vouchers so that you can splash out on what you fancy. Time for a spree? Enter today". Small print stated "This e-mail was sent to you by an independent marketing company, not by Sainsbury's".
b. The second e-mail, sent 13 March 2011, stated "Get hold of 300 pounds to spend at Marks and Spencers [sic]" in the ‘Subject’ field, and the ‘From’ field stated "PrizesToday", followed by an e-mail address. The body of the e-mail used Marks & Spencer branding, and stated "This isn't just any offer ... WIN £300 of Marks and Spencers [sic] Vouchers". Further text stated “Marks & Spencers [sic] is one of the UK's favourite places to shop for food, clothing and household goods. With summer just around the corner it's a great time to treat yourself to a new outfit, summer clothes for the kids and maybe some goodies for the barbecue season. We're giving away an amazing £300 voucher to spend at your leisure in Marks & Spencers [sic], so dont [sic] delay and click on the button below to enter your chance to win". Under a linked button which stated "ENTER NOW!" small print stated "This e-mail was sent to you by an independent marketing company, not by Marks & Spencer".
Issue
The complainant challenged whether:
1. the prizes offered in the ads were genuine and as described;
2. the ads misleadingly implied that they were from Sainsbury's and Marks & Spencer; and
3. the ads breached the Code, because they did not make clear the identity of the marketer.
Response
OfferX said that, whilst they contested the complaint, they were always happy to review their processes and procedures, and they had asked the promotional verification service PromoVeritas to assist them in looking at their template Terms and Conditions, e-mailing policies and draw processes.
1. OfferX said the prizes they offered were genuine and awarded in a fair and appropriate manner. They described the process by which prize winners were selected and confirmed the names of the winners of the prizes referred to in the ads. They said the winner of the Sainsbury's draw had received their prize, and they had been in contact with the winner of the Marks & Spencer (M&S) draw but they had not claimed their prize. They offered to provide the details of all previous winners if required.
2. OfferX said they did not think a reasonable person would believe the e-mails were sent from the retailers concerned. They said ad (a) clearly stated "OfferX has 300 pounds for Sainsbury's to give away" in the e-mail 'Subject' field, and that neither ad at any point stated or implied it was from the retailer concerned. They added that both ads also stated "This e-mail was sent to you by an independent marketing company, not by Sainsbury's/M&S".
OfferX said that anyone entering the draw via the "Enter Now" button was taken to the OfferX website which bore no relation to the websites of either retailer. They said they accepted the ads featured images which might be associated with the retailers concerned, and text describing their products/services, but that was to be expected given that the prizes were vouchers for those specific retailers. They said it would be more misleading not to refer to the retailers at all given that the prizes were vouchers for those retailers.
3. OfferX said they used the services of affiliate companies who had databases of consumers, and the e-mails were sent not by them but by an affiliate. They said they supplied a template graphic design to their affiliates and, whilst they accepted responsibility for the content of messages, it was not always possible for them to be responsible for the manner in which they were sent and all affiliates had their own policies regarding 'From' fields. They said they had more control over the 'Subject' field and reiterated that ad (a) stated OfferX's name in the e-mail 'Subject' field, but said that affiliates often wanted to use their own wording. They also reiterated that both ads stated that the e-mails were sent from an independent marketing company rather than the retailers themselves. They added that both ads included appropriate opt-out information and consumers who followed the link would be taken to the OfferX website. They said they fully understood that recipients needed to be aware that the prize draw was legitimate and be aware of the company it was being run by - but that was evident from the main body of the e-mails.
OfferX said they would include their name in the main body of e-mails and would also include small print which stated "This prize draw is operated by OfferX". They said it was up to their affiliates to ensure they were clearly identified in the e-mails as well as complying with all relevant SPAM and data protection laws.
Assessment
1. Not upheld
The ASA noted OfferX's detailed explanation of their prize draw process and noted the names of the winners of the two prize draws referred to in the ads, and that that information was also detailed on their website. We considered they had provided adequate substantiation that the prize draws were genuine and as advertised and therefore concluded the ads were not misleading in that regard.
On this point, we investigated ads (a) and (b) under CAP Code rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation) and 8.2 8.2 Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment. (Sales promotions) but did not find them in breach.
2. Upheld
We acknowledged that the 'Subject' field of ad (a) stated "OfferX has 300 pounds for Sainsbury's to give away" but considered that because OfferX was not named in the main body of the e-mail the overall impression of the ad was that it had been sent by, or on behalf of, Sainsbury's. We noted that ad (b) did not state OfferX's name at all. Furthermore, we considered that whilst the statement "This e-mail was sent to you by an independent marketing company, not by Sainsbury's/M&S" in both ads made clear that the e-mails were not sent directly from those companies, it did not preclude the possibility that the e-mails had been sent by an independent marketing company on behalf of those retailers. We therefore considered the overall impression of the ads were that they had been sent on behalf of the named retailers. We concluded the ads were misleading.
On this point, ads (a) and (b) breached CAP Code rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
3.5
3.5
Marketing communications must not materially mislead by omitting the identity of the marketer.
Some marketing communications must include the marketer's identity and contact details. Marketing communications that fall under the Database Practice or Employment sections of the Code must comply with the more detailed rules in those sections.
Marketers should note the law requires marketers to identify themselves in some marketing communications. Marketers should take legal advice.
(Misleading advertising) and
8.1
8.1
Promoters are responsible for all aspects and all stages of their promotions.
(Sales promotions).
3. Upheld
We noted the CAP Code stated that promoters were responsible for all aspects and all stages of their promotions. We considered that, because OfferX benefited from the e-mails regardless of who sent them, they were the main promoter and were therefore also responsible for the contents of the e-mails. We considered that, in order to make clear that the prize promotions were run by OfferX, it should have been clear in either the 'Subject' or 'From' fields, as well as in the main body of the e-mails, that the e-mail had been sent on behalf of OfferX.
We noted ad (a) included OfferX's name in the 'Subject' field but considered that the body copy of the ad did not make clear that it was from OfferX, and, overall, the e-mail could mislead consumers. We therefore concluded ad (a) breached the Code in that regard. We welcomed OfferX's offer to include small print in the body of the e-mail that would state "This prize draw is operated by OfferX".
We noted ad (b) did not state OfferX's name at any point and therefore concluded that, because it did not make clear the identity of the marketer, the ad breached the Code.
On this point, ads (a) and (b) breached CAP Codes
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
3.5
3.5
Marketing communications must not materially mislead by omitting the identity of the marketer.
Some marketing communications must include the marketer's identity and contact details. Marketing communications that fall under the Database Practice or Employment sections of the Code must comply with the more detailed rules in those sections.
Marketers should note the law requires marketers to identify themselves in some marketing communications. Marketers should take legal advice.
(Misleading advertising),
8.1
8.1
Promoters are responsible for all aspects and all stages of their promotions.
(Sales promotions) and
10.6
10.6
Marketing communications sent by electronic mail (but not those sent by Bluetooth technology) must contain the marketer's full name (or, in the case of SMS messages, a recognisable abbreviation) and a valid address; for example, an e-mail address or a SMS short code to which recipients can send opt-out requests.
(Database practice).
Action
Ads (a) and (b) must not appear again in their current form. We told OfferX their ads should make clear that the prize promotions were run by OfferX, and that OfferX should be named in either the 'Subject' or 'From' fields as well as the main body of the e-mails.
