An email from Virgin Wines sent on 14 May 2018 in which the headline text stated, “Specially EXTENDED ends midnight tonight £10 wine voucher CLICK HERE TO CLAIM”. The body of the email stated “Hi … Right, this is a little bit naughty because I specifically said that your £10 VOUCHER should expire last night, but what can I say- rules are made to be broken! The truth is, we’ve been inundated with calls and emails this morning from customers that don’t get to check their emails until Monday morning and were a bit put out to see that it had already expired before they’d had a chance to take advantage of the offer. So we’ve added 1 more day to your £10 VOUCHER, but at Midnight tonight that REALLY is it!” The email was signed off by the CEO of Virgin Wines. Smaller text in the qualification stated “Voucher Terms and Conditions: Your £10 Voucher is valid against order with a sale price of £89.88 or more … placed by midnight on Monday 14th May 2018”.
The complainant, who received several emails regarding the promotion which was to have ended on 13 May, but which was extended until 14 May, challenged whether the ad was misleading.
Virgin Wine Online Ltd t/a Virgin Wines said they did not believe that they had broken the advertising Codes. They said that the text of the email was slightly tongue-in-cheek when it said “this is a little bit naughty” and “rules are made to be broken”, but they were not referring to any advertising rules; they chose to use a friendly and informal style in their marketing copy. Virgin Wines said they understood that extending a sale was a very common marketing technique and they did not think it was detrimental to consumers. They said that extending a promotion helped customers because it gave them more time, which meant that fewer would be disappointed by missing out on the opportunity to participate.
The ASA considered that consumers were likely to understand that the offer was time limited and that in order to claim the £10 voucher they would have to place an order by midnight on 13 May and that if they placed an order after that date the voucher could not be claimed. We noted that the day after the promotion should have ended an email was sent which extended the offer for another day.
The CAP Code stated that closing dates must not be changed unless unavoidable circumstances beyond the promoters control made it necessary and participants were not disadvantaged. We understood that the complainant received emails about the promotion on 8, 10, 11, 12 and 13 May which highlighted the closing date of midnight 13 May.
We noted that the ad said the offer was extended to allow more consumers to take part, who had not had an opportunity to check their emails earlier. When setting the original closing date Virgin Wines was able to consider the time consumers would typically need to check their emails and respond to the offer and throughout the offer period they then sent frequent reminders of the closing date. We were not aware of any unavoidable circumstances beyond Virgin Wine’s control that prevented recipients of the email from responding by the original end date, which had been very clearly communicated. We also considered that because the date was subsequently 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.
Because of those reasons we concluded the promotion was misleading and in breach of the CAP Code.
The promotion 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 8.17.4.e 8.17.4.e Closing dates must not be changed unless unavoidable circumstances beyond the control of the promoter make 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 will not be disadvantaged by the change. (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 participants were not disadvantaged.