An email from Virgin Wines, sent 8 April 2019, included a subject heading which stated “you missed out on your VIP offer, here’s an exclusive voucher code for today only”. The main body of the email stated “The finale of this week of deals was the opportunity to get a handsome £10 off your order, but it looks as though you didn’t get a chance to use this discount before it expired last night!” and “Whilst I realise an extra £10 discount won’t change your world, I don’t want you to miss out! Therefore, I’d like to offer you an exclusive, one-day-only £10 Voucher Code that you can use towards anything you like before midnight tonight”.
The complainant, who received an email regarding a £10 voucher promotion which was to have ended on 7 April, challenged whether the ad was misleading because the promotion’s closing date was extended.
Virgin Wine Online Ltd t/a Virgin Wines said the two emails referred to two separate promotions. The first was part of a week of offers for those customers who were members of their ‘WineBank’ club, which ended with a £10 discount off a case of wine. They said that after clicking on the email the discount was automatically applied to any order that was placed. Virgin Wines said the second £10 offer was a one-day only voucher. They said that in order to claim the voucher the customer had to redeem the voucher onto their account, then find a case of wine they wanted to buy and place their order. Virgin Wines therefore believed the mechanics of the two promotions were different and they did not believe they ran a £10 off voucher on consecutive days. Virgin Wines said that the second email did refer back to the WineBank week of offers. However, they said that they often referred back to previous offers or promotions that a customer would have been sent as it formed part of the conversation they had with the customer. Virgin Wines said that did not mean the two emails were the same promotion or that a promotion was extended.
The first email received on 7 April 2019 stated “WineBank VIP Week – FINALE”, “£10 OFF YOUR ORDER” and “Don’t miss out … ENDS MIDNIGHT TONIGHT!”. The promotion offered recipients the opportunity to receive a £10 discount on an order for any case of wine with a minimum of 12 bottles and with a minimum spend of £95.88. The ASA considered consumers were likely to understand that they would need to make a purchase before midnight on the day of the email’s receipt in order to benefit from that promotion. The ad was then sent on 8 April and included the subject “you missed out on your VIP offer, here’s an exclusive voucher code for today only” and which stated “Whilst I realise an extra £10 discount won’t change your world, I don't want you to miss out! Therefore, I'd like to offer you an exclusive, one-day-only £10 Voucher Code that you can use towards anything you like before midnight tonight”. The email stated that the £10 discount could also only be applied to an order with a minimum of 12 bottles and a minimum spend of £95.88. The CAP Code stated that closing dates must not be changed unless unavoidable circumstances beyond the promoters’ control made it necessary and either not to change the date would be unfair to those who sought to participate within the original terms, or those who sought to participate within the original terms would not be disadvantaged by the change.
We acknowledged that the mechanics of how to apply the £10 discount referred to in the 7 and 8 April emails were different. However, the ad sent on 8 April presented the same discount value of £10, on the same minimum number of bottles, with the same minimum spend, to the promotion that ended on 7 April. We therefore considered consumers were likely to consider that the offer presented in the two emails constituted the same promotion. We were not aware of any unavoidable circumstances beyond Virgin Wine’s control that made it necessary to change the closing date and we were not aware of any reason why not changing the date would be unfair to those who sought to participate within the original terms. Furthermore, we considered that because the closing date was extended, consumers who had hurried to take advantage of the offer before the original end date could have taken more time to decide whether or not to participate, and were therefore disadvantaged as a result.
We therefore concluded the promotion was in breach of the CAP Code. The promotion breached CAP Code (Edition 12) rules 3.1 (Misleading advertising) and 8.17.4e (Significant conditions for promotions).
The ad must not appear again in its current form. We told Virgin Wine Online Ltd to ensure that, in future, closing dates of promotions were not extended unless unavoidable circumstances beyond their control made it necessary and either not to change the date would be unfair to those who sought to participate within the original terms, or those who sought to participate within the original terms would not be disadvantaged by the change. That included, for example, that they should not extend the closing date of a promotion by continuing to offer the same discount under the same terms, but through a different redemption mechanic.