Ad description
An email from PayPal, received on 29 September 2020, featured the subject line “[Name] long time no see. Here’s a £10 reward for you!”. The headline claim in the body of the email stated “We’re giving you £10 to use online with PayPal” followed by a clickable “Save Offer” button. Small text below stated “Limited to first 28,527 to save offer. Expires 30/09/2020. Terms apply.* ” A graphic of a shopping bag with the text “get £10” was featured underneath. Further text below stated “Hi [Name] How would you like £10 off the next time you use PayPal to spend on the things you love?”. Larger text stated “Here’s how to get your £10 offer”, followed by three graphics, which included a PayPal logo, a shopping trolley and a £10 coin. Text underneath each graphic, in the same order, stated “Be the first 28,527 customers to save this offer to your account. Save now”, “Checkout anywhere PayPal is accepted by 30/09/2020” and “Your £10 offer will be applied automatically to your next PayPal purchase”.
Issue
One complainant, who was unable to claim the £10 reward, challenged whether the subject line and headline claims were misleading because they did not make sufficiently clear that the offer was available only to the first 28,527 customers.Response
PayPal (Europe) Sarl et Cie said that the email was designed to inform customers about the availability of the offer and included all significant qualifications and conditions. The messaging was prepared so that major factors reasonably likely to influence consumers’ decisions or understanding about the promotion were displayed. They said that the text “Limited to first 28,527 to save offer. Expires 30/09/2020. Terms apply” appeared after the “Save Offer” button which drew the customer’s attention to the significant conditions associated with the offer. The text had been intentionally placed in close proximity to the “Save Offer” button in order to make the conditions attached to the offer prominent. They therefore did not believe that it would be possible for a customer to click on the “Save Offer” button without being aware of the limitation of availability. They said that the “How it works” section set out the key aspects of the offer, including the cap, closing date and instructions on how to apply it and the use of the graphics drew the consumer’s attention to the three key messages and reinforced the significant conditions. This section had been designed to include significant conditions in the main body of the email rather than in the extended terms and conditions. PayPal felt the format clearly explained how consumers could participate and had displayed the significant conditions transparently. The “Save Offer” Button directed consumers to PayPal’s online landing page which included the Extended Terms and Conditions, which stated “The Offer is limited to 28,527 respondents, on a first-come, first-served basis”. PayPal believed that they had complied with the CAP Code which stated that where the medium of a marketing communication was constrained by time and space, appropriate care should be taken to ensure that any material information is made available to the consumer by other means. As the subject line and heading were constrained by space, they felt that they had communicated the limited availability of the offer in the body of the email clearly and that the ad did not create the impression that the offer was unlimited.Assessment
Upheld The ASA considered consumers would understand from the subject line “long time no see. Here’s a £10 reward for you!” that they were eligible to receive a reward worth £10 from PayPal, and that anyone who received the email was being given a reward, or would receive one if they chose to claim it. The headline of the body of the email stated “We’re giving you £10 to use online with PayPal” which we considered would be understood by consumers in a similar way as the subject line. We did not consider that a cap on the number of consumers who would receive the reward would be in line with consumer expectations of those claims. While we acknowledged that further text below the “Save Offer” button stated “Limited to first 28,527 to save offer”, we considered that the qualification was not sufficient to counter the overriding impression given by the headline claims, regardless of its size and prominence in relation to them. Because we considered that consumers were likely to understand from the subject line and headline claim that they would receive credit worth £10 from PayPal, and the subsequent qualification was insufficient to counter that impression, we concluded that the ad was misleading and breached the Code. The ad breached CAP Code (Edition 12) rules 3.1 3.1 The standards objectives, insofar as they relate to advertising, include:a) that persons under the age of 18 are protected;
b) that material likely to encourage or incite the commission of crime or lead to disorder is not included in television and radio services;
c) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;
d) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from inclusion in such services of offensive and harmful material;
e) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;
f) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with [in particular in respect of television those obligations set out in Articles 3b, 3e,10, 14, 15, 19, 20 and 22 of Directive 89/552/EEC (the Audi Visual Media Services Directive)];
g) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred"
Section 3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is 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. 2). 3.3 3.3 For advertisements that quote prices for an advertised product or service, material information [for the purposes of rule 3.2] includes: (Misleading Advertising), and 3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is 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. (Qualification).
Action
The ad must not appear again in the form complained of. We told PayPal (Europe) Sarl et Cie not to imply that all recipients of emails promoting customer rewards would receive those rewards, if that was not the case.
