Ad description

An instagram account and two websites for OfferX, a marketing company, seen on 24 September 2018:

a. The instagram account “primarkprdct” included as its profile picture an image of the Primark logo. The instagram profile included in its profile description “© Primark … Welcome to the official Primark Beauty & Fashion Products Testing. We’re looking for Primark Testers For Our Highly Anticipated 2019 Set. Apply now … primark.offermarket.gq”. The instagram account included posts with pictures of clothing products which included text stating “CONSUMER TESTERS WANTED FOR PRIMARK … APPLY NOW”. The word PRIMARK appeared in a similar font to that used by Primark. Each post linked through to ad (b).

b. The website, primark.offermarket.gq, stated “Do you wanna test out products for Primark ? we are looking for testers !!”. The ad included three images of women holding Primark branded bags with the text “CONSUMER TESTERS WANTED FOR PRIMARK … HURRY! LIMITED SEATS ONLY” and a box with linked text that stated “APPLY NOW”. Clicking on the linked text took website users to ad (c).

c. The landing page on the website www.offerx.co.uk, titled “TESTERS WANTED! SECRET SHOP AT PRIMARK WITH £1000”, included the text “GetTestKeep are looking for people to review £1000 worth of Primark Items and if chosen you’ll get to KEEP all the products selected …”, “Why should I become a Primark Tester?” and “How do I become a Primark Tester”. Smaller text at the bottom of the page stated “*Marketing Punch has no relationship whatsoever, including, but not limited to, affiliation, sponsorship or endorsement with the manufacturers of any of the listed products, or any of the identified retailers”.

Issue

The complainant challenged whether the ads misleadingly implied that the advertiser was affiliated with Primark.

Response

Marketing Punch t/a OfferX and GetTestKeep (Marketing Punch) replied that the Instagram account and ad (b) were not owned or operated by them and were created by an affiliate. They said that they had strict terms and conditions that did not allow affiliates to misuse third-party brands and that they had now stopped working with that affiliate.

In relation to ad (c), Marketing Punch stated that it aimed to make it clear to consumers that their brand GetTestKeep were running the promotion. They said that they avoided using any Primark intellectual property and clearly stated that “Marketing Punch has no relationship with the manufacturers of any of the listed products”.

Assessment

Upheld in relation to ads (a) and (b) only

The ASA considered that OfferX were responsible for the contents of ads created by affiliates including ads (a) and (b). We considered that consumers would understand from ad (a) that the advertiser was, or was affiliated with, Primark because it made use of Primark’s branding and imagery related to Primark. Additionally the Instagram profile’s logo was the Primark logo, the profile title was titled “primarkprdct” and the description stated that it was “the official Primark Beauty & Fashion Products Testing”.

Ad (b) made use of Primark’s branding and imagery related to Primark. The ad stated “Do you wanna test out products from Primark? we are looking for testers” and we considered that consumers would interpret the claim “we” to refer to Primark. We noted that the ad included text at the bottom of the page stating “Get Test Keep” but there was no indication that GetTestKeep was the advertiser, and the text was less prominent than the Primark imagery. On that basis, and in the context that consumers arrived at ad (b) from ad (a), we considered consumers would also understand from ad (b) that the advertiser was Primark, or was affiliated with Primark.

We considered that both ads (a) and (b) should have made clear that the advertiser was Marketing Punch trading as OfferX and/or GetTestKeep. Because that was not the case, we concluded that ads (a) and (b) were misleading.

Ad (c) stated “GetTestKeep are looking for people to review £1000 worth of Primark Items and if chosen you’ll get to KEEP all the products selected …” and included smaller text at the bottom of the page that stated that there was no relationship between Marketing Punch and the “identified retailers”, and further small text that stated “OfferX is owned and operated by Marketing Punch”. The ad did not contain any images that consumers would associate with Primark or Primark branding. Although some consumers would arrive at ad (c) through ads (a) and (b), some would also reach ad (c) in other ways and we considered ad (c) separately in that context. We considered that consumers would understand from ad (c) that the advertiser was GetTestKeep and was not affiliated with Primark. We therefore concluded that ad (c) was not misleading.

Ads (a) and (b) breached CAP Code (Edition 12) 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.
 and  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.  (Promotional Marketing).

We also investigated ad (c) under CAP Code (Edition 12) 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.
 and  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.  (Promotional Marketing), but did not find it in breach.

Action

Ads (a) and (b) must not appear again in their current form. We told Marketing Punch Ltd t/a OfferX and GetTestKeep to ensure that all ads for their promotions, including ads prepared by affiliates, included their identity and contact details and must not imply that the promotion was run by any other company.

CAP Code (Edition 12)

3.1     3.3     3.5     8.1    


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