A promotion, seen on www.groupon.co.uk, was titled "Paintballing With Paintballs and Burger Lunch for Two (£5), Five (£7) or Ten (£10) at Skirmish Scotland". Further text stated "The Deal • Day of paintballing for two, five or ten people • Pot of paint each (approx 100 balls) • Safety training and all equipment provided • Burger lunch provided". Under the title "The Fine Print", text stated "Valid 9am-4.30pm ... Extra paintballs available on site for £10 per pot of paint (approx 100 balls), or pre-booked for £160 per 20 pots of paint (approx 2,000 balls). Must arrive by 9am for full safety briefing ...".
The complainant challenged whether the offer was misleading, because it omitted to state that the advertised lunch would only be provided at 2 pm, and was conditional on consumers committing to a "full day" of paintballing, starting at 9 am.
MyCityDeal Ltd t/a Groupon (Groupon) said they understood that the complainant had wanted to leave the venue at 11 am and take their lunch with them. They believed that the average consumer would understand that lunch was generally served around the middle of the day, which they considered was the timing usually applied to the definition of lunch. Groupon therefore did not believe that the exact timing of lunch was a material condition which needed to be included in the ad. They highlighted that the deal was for a day of paintballing which included a "burger lunch". Whilst they acknowledged that there were differing opinions over what exact time people chose to take their lunch, they considered the average consumer would expect lunch to fall anytime between 12 pm and 2 pm. They stated that Skirmish Scotland had confirmed that they started serving lunch from around 1.30 pm for all-day paintballing events, which Groupon believed the average consumer would consider a reasonable time for lunch to be taken. They asserted that the ad stated that there was a "lunch provided" which suggested a pre-organised activity and they did not believe it could be inferred from the ad that lunch was available on demand at any time. Groupon did not consider that a customer had the right to expect lunch to be served when they wanted it.
They asserted that the ad clearly stated that the deal was for a "day of Paintballing". "The Fine Print" stipulated that the deal was "valid 9am-4.30pm", which gave a precise indication of how long the experience would be expected to last. They said "The Fine Print" explained that customers "Must arrive by 9am for a full safety briefing", clearly setting out to customers that 9 am was the start time of the experience. They said the offer did not suggest that customers were able to choose when to take their lunch. In addition, they thought that the average consumer would understand that any company offering a full day of paintballing would have to set a time for lunch in order to aid with the practical running of the day, and that it was reasonable that a customer would need to be at the site at lunchtime, in order to receive the lunch. They also stated that customers not wishing to stay for the entire day, but wanting to claim their lunch, were also within their rights to leave after lunch had been served, without needing to stay until 4.30 pm. In addition, Groupon stated that there was no suggestion from the partner that customers would not be able to claim their free lunch were they to stop playing paintball during the course of the day, or if they wanted to leave the site and come back. Customers would, however, need to be on site at lunchtime in order to claim their lunch.
The ASA noted that the partner had informed Groupon that the complainant's party had requested their lunch at 11 am, and after being refused, had left. In addition, we understood that the merchant had told Groupon that they normally served lunch around 1.30 pm. We noted, however, that the complainant had reported that the party had left around noon after requesting their lunch and being told that it would only be served from 2 pm. He provided correspondence between himself and the merchant that confirmed the party had left around noon. In addition, we noted that two e-mails from the merchant stated "Yes is [sic] food is provided at 2 o'clock to stop people taking advantage of a genuine offer", and "they (the party) left before 2pm when lunch is provided". We therefore considered that those e-mails confirmed that the merchant normally provided lunch from 2 pm.
The ASA noted that the ad stated "Day of paintballing ...", "Valid 9am-4.30pm" and "Must arrive by 9am for full safety briefing". We considered that the average consumer would understand that if they wanted to take advantage of the offer, they would need to arrive for their session at 9 am. We did not consider, however, that they would believe that the offer would only be valid if they stayed for a whole day, and instead thought that consumers would expect that, while they could legitimately paintball for seven and a half hours, they were free to leave the session whenever they chose to.
We noted that the ad simply stated "Burger lunch provided", and did not suggest that the provision of lunch was conditional on consumers staying onsite for a particular length of time, or purchasing a specific number of additional paintballs. We considered that a consumer who purchased the offer would believe that by paying £5, £7 or £10, they were entitled to a full day of paintballing and lunch, regardless of whether they made additional purchases or not. We recognised that there were differing judgements of what constituted "lunchtime" but we understood that the partner always served lunch from 2 pm. While we acknowledged that it could be unreasonable for a consumer to expect lunch at a time not generally understood to be "lunchtime", such as 10 am or 11 am, we considered that most consumers would consider the provision of lunch at 2 pm to be later than what was generally understood as being "lunchtime", and unless stated in the ad, would expect lunch to be provided at an earlier time.
We understood that a deal partner might wish to enforce particular timescales and conditions to an offer to try and encourage consumers to stay onsite for longer, or make additional purchases, but considered that if those restrictions were necessary for the deal to be viable for the partner, they should be included in the offer's terms and conditions.
Because we considered most consumers would believe that, unless specified in the ad, the burger lunch would be provided earlier than 2 pm, we concluded that the ad was misleading and in breach of the Code.
The ad breached CAP Code (Edition 12) rules
Marketing communications must not materially mislead or be likely to do so.
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 3.4.1 3.4.1 the main characteristics of the product (Misleading advertising), 8.1 8.1 Promoters are responsible for all aspects and all stages of their promotions. 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), 8.14 8.14 Promoters must ensure that their promotions are conducted under proper supervision and make adequate resources available to administer them. Promoters, agencies and intermediaries should not give consumers justifiable grounds for complaint. (Administration) and 8.17.1 8.17.1 How to participate
How to participate, including significant conditions and costs, and other major factors reasonably likely to influence consumers' decision or understanding about the promotion (Significant Conditions for Promotions).
The ad must not appear again in its current form. We told Groupon to ensure that the significant terms and conditions which applied to their offers were clearly stated in their ads.