Ad description

An e-mail, from Photobox, sent on 22 December 2011, was headed "Winter Sale - up to 50% off Everything*". Further text stated "UP TO 50% OFF EVERYTHING* THE MORE YOU BUY, THE MORE YOU SAVE". Small print at the bottom of the e-mail stated "*Exclusions apply: Standard Prints, Enlargement Prints, Gift Vouchers, products from private sellers or third parties and postage. Full terms and conditions apply".

Issue

The complainant challenged whether the claim "UP TO 50% OFF EVERYTHING" was misleading, because the promotion excluded various products.

Response

Photobox said that in their opinion the ad did not, nor was it likely to, materially mislead consumers as to the nature or extent of the promotion. They said the word "everything" should be taken in context. In this case the context was the Winter Sale, and consumers would be entitled to assume that everything in that sale was discounted by up to 50%. They said the e-mail directed consumers to a specific landing page on their website which displayed all products included in the sale. They considered that gave consumers additional clarity as to which items were included as part of the "everything" claim. They added that, of their own product range, only standard prints and enlargement prints were excluded from the promotion, which meant that over 97% of their own product range was included in the sale. They said gift vouchers were excluded from the sale because they were not products as such, and products from private sellers or third parties were excluded because they did not form part of Photobox's product range. They said that the excluded items were minimal and did not comprise significant restrictions to the offer in question.

Photobox said that clear efforts were made to alert consumers to the fact that certain items were excluded from the promotion. They said the qualification at the bottom of the e-mail gave unambiguous clarification to consumers as to which products were excluded from the promotion, and was clearly referenced by the asterisk in the headline claim. They said the qualification was headed by the text "Winter Sale 50% off Everything" in red, bold text. The text "*Exclusions apply" was also in bold, and the text was the same size as that used in the main body of the e-mail.

Photobox said they believed the word "everything" could be, and often was, qualified without obscuring the meaning of the word, for example in the phrase "everything but (the kitchen sink)", which was a common and well-known expression recognised by the public as providing an exception to the definition of "everything". They added that, if the ad had stated that there was "up to 50% off nothing but [X]", it would be unlikely that any consumer would be materially misled into believing that absolutely nothing was on sale.

Assessment

Upheld

The ASA considered consumers would understand the headline claim "Winter Sale - up to 50% off Everything" to mean that all items sold on Photobox's website were included in the Winter Sale and were available at up to 50% off their usual purchase price. We noted the ad included a qualification which detailed the exclusions to the offer, and that that qualification was presented clearly. However, we considered that excluding standard prints, enlargement prints and products from private sellers or third parties from the promotion was a significant restriction to the offer, and therefore contradicted rather than clarified the offer. Because the qualification contradicted rather than clarified the offer, we concluded the ad was misleading.

The ad breached CAP Code (Edition 12) rules  3.1 3.1 Marketing communications must not materially mislead or be likely to do so.  (Misleading advertising) and  3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.  (Qualification).

Action

The ad must not appear again in its current form. We told Photobox not to imply that everything on their website was included in an offer if exclusions applied.

CAP Code (Edition 12)

3.1     3.9    


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