ASA Adjudication on BHH Technologies Pty Ltd

Ad

A national press ad, for a cosmetic product, included the text "Consumers are fast becoming aware that ordinary makeup could be a toxic chemical cocktail. But is mineral makeup always the answer? We tracked down the expert Sonia Figueria and the mineral makeup brand she believes is so superior she is letting you trial it for free". The ad went on to show a mock interview with Sonia, which included the statement "I know that once you try Nude you will agree it is the best so I am happy to let you try it for free. We take all the risk and don't ask for money up front other than the p&p of £5.95. We'd be crazy to do that unless we were positive our customers were not just satisfied, but become raving fans". Small print at the bottom of the ad said "Free trial available to credit and debit card holders only".

Issue

1. The complainant challenged whether the reference to a "free trial" was misleading because she understood that recipients were charged £79.95 for the product if it was not returned within 16 days.

2. The ASA challenged whether the reference to a "free trial" was misleading because there was a compulsory charge of £5.99 for postage and packing.

CAP Code

Response

1. BHH Technologies Pty t/a Nude by Nature (BHH Technologies) said that other than the cost of postage and packing, no charge was made during the 16-day trial period.  They said that customers could cancel any time during that trial period and that if they did not want to keep the product, no charge would be made.  They argued that the ad, their website and their call centre operatives made these conditions clear and said that the description of the trial as being "free" was therefore accurate.

2.  They said it was their understanding that a trial could be referred to as being free if actual cost of postage was charged. They said they also understood the word "free" could be used in instances where customers were charged for handling and posting but where customers could also collect directly, without such charges, from retail outlets. They argued that because customers were able to collect the items directly from their fulfilment centre without incurring postage or packing costs, the word free had been used correctly in reference to delivery of the product.

Assessment

1. Upheld

The ASA noted the ad did not state that participants would be sent the product to use for a limited period and that money would be deducted from their account if they did not return it within 16 days.  We concluded that, because customers were automatically charged £79.95 if they did not return the sample, the trial was not "free" and the ad was likely to mislead.

The ad breached CAP Code clauses 7.1, 7.2 (Truthfulness) and 32.5 (Free offers and free trials).

2. Upheld

The ASA noted the ad stated that a £5.95 charge applied to cover "P&P" (postage and packing). However, we considered that customers should not be charged for packing or handling of a "free" product.  We also noted the minimum unavoidable cost of delivery was £2.14 with first class stamps and that, although BHH said customers could collect the sample product from their fulfilment centre, the ad only gave customers the option to order by telephone or over the internet and made no reference to arrangements by collection.  We concluded, that because the £5.99 charge exceeded the minimum rate of postage, the description of the trial product as free was likely to mislead.

The ad breached CAP Code clauses 7.1, 7.2 (Truthfulness) and 32.5 (Free offers and free trials).

Action

The ad should not appear again in its current form.

Adjudication of the ASA Council (Non-broadcast)