Background

Summary of Council decision:

Three issues were investigated, of which two were Upheld and one Not upheld.

Ad description

An advertorial for an eye cream from the Perfect Cosmetic Company, appearing in the national press on 7 August 2018, included the quotes ”’The miracle eye cream that has become a global best seller’ - The Sun”; and “‘Really does smooth out wrinkles around the eyes’ - The Daily Mail”. The ad further stated that the product was “‘The No.1 Eye Cream to banish dark circles and fine lines!’ - AS VOTED BY - Marie Claire”. The ad listed the product as “YOURS TODAY AT HALF PRICE… WAS £59.99 NOW ONLY £29.99”.

Issue

The complainant challenged whether the following claims were misleading and could be substantiated:

1. the quotes in the ad from the Sun and the Daily Mail, because they believed that those quotes did not represent genuine editorial quotes from those newspapers,

2. “‘The No.1 Eye Cream to banish dark circles and fine lines’ - AS VOTED BY - Marie Claire”; and

3. “HALF PRICE … WAS £59.99 NOW ONLY £29.99”.

Response

1. The Perfect Cosmetics Company Ltd responded that both “The miracle eye cream that has become a global best seller” and “Really does smooth out wrinkles around the eyes” were from genuine articles printed in the Sun and Daily Mail respectively. They said they did not have any editorial control over those articles and provided a copy of both articles.

2. The Perfect Cosmetics Company provided an article that appeared on the Marie Claire website that was headlined “The best eye cream to banish dark circles and fine lines”. The article detailed ten products including “1/10 My Perfect Eyes”. The Perfect Cosmetics Company provided a copy of an email chain between themselves and Marie Claire to show that they had obtained permission to use the claim “The No.1 Eye Cream to banish dark circles and fine lines’ - AS VOTED BY - Marie Claire”.

3. The Perfect Cosmetics Company stated that My Perfect Eyes was sold through three online retailers at the price of £59.99 including their Amazon account and two websites controlled by them.

The two websites had also offered the product for the discounted rate of £29.99 on two separate days. The Perfect Cosmetics Company provided a comparison of sales on the days across other websites where the Half Price offer was available which took place over two dates, on 21 April and 16 June.

Assessment

1. Not upheld

The ASA considered that consumers would interpret the claims, “‘The miracle eye cream that has become a global best seller’ - The Sun” and “‘Really does smooth out wrinkles around the eyes’ - The Daily Mail” to be genuine quotes from editorial content in those newspapers.

We had seen evidence that both the quotes included in the ad were taken from editorial content in the Sun and Daily Mail newspapers; we understood that the Perfect Cosmetics Company did not have any control over the content of the articles and that the comments quoted in the ad were representative of the content of the articles. We therefore concluded that the evidence provided was adequate to demonstrate that the testimonials were genuine.

On this point, we investigated the ad under CAP Code (Edition 12) rule3.45 (Endorsements and testimonials), but did not find it in breach.

2. Upheld

We considered that consumers would understand the claim “‘The No.1 Eye Cream to banish dark circles and fine lines’ - AS VOTED BY - Marie Claire” to mean that My Perfect Eyes had been voted to be the best product from a range of products. We further considered that consumers would interpret the claim to mean that Marie Claire endorsed the products above other products.

The claim was taken from an article that had appeared on the Marie Claire website. The article was a list of eye creams “to banish dark circles and fine lines” and amongst other products included My Perfect Eyes. The article then listed the products that it recommended and the first product featured was My Perfect Eyes. However, there was no indication from the article that My Perfect Eyes’ position in the list conferred any particular ranking over and above the other products or that consumers or Marie Claire had voted for My Perfect Eyes over other products. The article appeared to be a list of recommended products. We acknowledged that Marie Claire had given the Perfect Cosmetics Company permission to use the claim in their advertising, but considered that the advertising implied a level and type of endorsement of the product by Marie Claire which was not in line with the content of the article. We therefore concluded that on this point the ad was misleading.

On this point, 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),  3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are 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.  (Substantiation),  3.45 3.45 Marketers must hold documentary evidence that a testimonial or endorsement used in a marketing communication is genuine, unless it is obviously fictitious, and hold contact details for the person who, or organisation that, gives it.  and  3.47 3.47 Claims that are likely to be interpreted as factual and appear in a testimonial must not mislead or be likely to mislead the consumer.  (Endorsements and testimonials).

3. Upheld

We considered that consumers would understand the claim “HALF PRICE … WAS £59.99 NOW ONLY £29.99” to mean that they would be able to make a genuine saving of 50% against the usual selling price of £59.99 at the time the ad appeared.

We further considered that consumers would understand that the price of £59.99 to be the price that the product was usually available for on the My Perfect Eyes website. The ad directed consumers to place their orders either using the website myperfecteyes.co.uk or by the telephone. We understood that the product had been available through the My Perfect Cosmetics website for £29.99. However, because we were not provided with the pricing history of the product through that channel, we were not able to establish the price that it had been sold for in the months prior to the ad.

We understood that My Perfect Eyes had also sold the product through three separate online retailers at the price of £59.99 since April and it had remained at that price on their Amazon page at the time the ad was published. Those channels had also sold the product on two separate days at the reduced price. However, we considered that those channels were less relevant to what we considered consumers would understand the usual sale price to be because the ad directed consumers to the My Perfect Eyes website. In any case, the channels where the product was sold at the price of £59.99 sold considerably fewer than the channels that sold the product at £29.99.

Because we did not have a full pricing history of the product, including sales figures for all channels, we considered that advertiser had not shown that £59.99 was the usual selling price of the product.

We therefore concluded that the savings claim was misleading.

On this point, we investigated the ad under CAP Code (Edition 12) rules  3.1 3.1 Marketing communications must not materially mislead or be likely to do so.  (Misleading advertising),  3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are 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.  (Substantiation) and  3.17 3.17 Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication.  (Prices).

Action

The ad must not appear again in its current form. We told the Perfect Cosmetics Company Ltd not to make implied claims of endorsement for their products unless they held evidence to support that endorsement. We also told the Perfect Cosmetics Company Ltd to ensure that their future savings claims did not mislead by ensuring that they did not base savings claims on promotional prices where they could not provide evidence of the usual selling price of the product, and where significantly more units had been sold at the promotional price than the “was” price.

CAP Code (Edition 12)

3.1     3.17     3.45     3.47     3.7    


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