An email for myprotein.com, dated 21 July 2015, stated “BUY 1 GET 1 HALF PRICE ON EVERYTHING! ... Mix and Match across ALL categories, from our best selling protein powders to aminos & snacks”. Small print at the bottom of the email included “Buy one get one half price excludes bundles and gift vouchers”.
The complainant challenged whether the claims “ON EVERYTHING” and “Mix and Match across ALL categories” were misleading, because exclusions applied.
The Hut.com Ltd t/a myprotein.com said the only exclusions which applied to the offer were the purchase of gift vouchers and bundles, which was stated in the email. They considered the email was therefore not likely to mislead consumers because the exclusions were stated in the email, recipients were likely to consider that gift vouchers would not be included in such an offer, and because, out of a total range of around 2000 products, only around 40 bundles were excluded from the offer. They said the vast majority of products sold by myprotein.com were therefore included in the offer.
On looking into the specific circumstances experienced by the complainant, myprotein.com said that due to a technical issue one of the products he had chosen was incorrectly excluded from the offer, and as a result the discount was not correctly applied to his order. When the complainant raised this with a customer services representative, they had not identified that the issue related to a technical error and incorrectly told the complainant that the offer applied only to certain product ranges. Myprotein.com said they would contact the small number of customers who had ordered the same product using the discount code and for whom the offer had therefore not been correctly applied and provide them with an additional 25%-off discount code as a gesture of goodwill.
The ASA considered consumers would understand the headline claim “BUY 1 GET 1 HALF PRICE ON EVERYTHING! Mix and Match across ALL categories …” to mean that all products sold by myprotein.com, across all categories, were included in the offer. While we noted the complainants’ experience of the offer not being applied to a specific product, we understood that was due to a technical error and that the offer in fact did apply to all products across all categories, with the exception of gift vouchers and bundles. We welcomed the goodwill gesture myprotein.com had proposed to take with regard to those customers affected by the technical error.
Notwithstanding that, we noted that gift vouchers and bundles were excluded from the offer; those exclusions were stated in small print at the bottom of the ad. We considered that recipients were likely to expect that gift voucher purchases would not be included in such an offer, and therefore considered the small print did not contradict but clarified the headline claims in that regard. However, we considered recipients were unlikely to expect that bundles, which consisted of several products ‘bundled’ together around a specific theme, would be excluded from such an offer. We therefore considered that, in relation to bundles, the small print contradicted the headline claim that “EVERYTHING”, “across ALL categories”, was included in the offer. We concluded the ad was therefore 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).
The ad must not appear again in its current form. We told The Hut.com Ltd t/a myprotein.com not to imply that all products were included in an offer if products were excluded which consumers would expect to be included. We told them to ensure that qualifications did not contradict the claims presented.