COMPLAINT NUMBER
12/351
COMPLAINANT
A. Stone
ADVERTISER
Magnamail
ADVERTISEMENT
Magnamail Direct Mail
DATE OF MEETING
11 September 2012
OUTCOME
Not Upheld
SUMMARY
The direct mail advertisement for Magnamail guaranteed that every customer who
purchased a product from the catalogue would win one of the prizes shown.
The Complainant said the advertisement was misleading as it gave the consumer an
unrealistic expectation that they would win a major prize. The Complainant also
questioned the use of the scratch panels to show if you were a winner.
In the Complaints Board view, there was nothing in the advertisement that suggested
that customers had already won a major prize and the Advertiser had clearly and
repeatedly emphasised the requirement to purchase an item from the catalogue to be
eligible for one of the prizes listed.
When considering the Complainant’s concern about the scratch panels, the
Complaints Board said the Advertiser was entitled to use such a device to generate
interest from consumers. The Complaints Board found the advertisement had not
breached Rule 2 or Basic Principle 3 of the Code of Ethics and ruled to Not Uphold
the Complaint.
[No further action required]
Please note this headnote does not form part of the Decision.
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COMPLAINTS BOARD DECISION
The Chairman directed the Complaints Board to consider the advertisement with
reference to Basic Principle 4 and Rule 2 of the Code of Ethics. This required the
Complaints Board to consider whether or not the advertisement contained anything
which, either directly or by implication, was likely to deceive or mislead the consumer
and if it had been prepared with a due sense of social responsibility to consumers
and to society.
Turning to the Complainant’s concern that customers were given an unrealistic
expectation in relation to a major prize, the Complaints Board referred to a previous
Decision (08/400) where the Complaints Board had Upheld a complaint about a
similar advertisement by the same Advertiser. That Decision stated, in part:
“By way of introduction, the Complaints Board reiterated its long-held stance
that where a condition significantly reduced the value of an offer, that
condition was required to be brought to the attention of the consumer in an
obvious way. This required the condition to be in reasonable proximity to the
main offer and to be of sufficient clarity and print size to be clear and obvious
to the consumer.
In the instance before it where repeated messages in the nature of definite
and absolute statements advised consumers that they had “won a prize”, the
Complaints Board said it was of major importance that a consumer was
aware of the fact that “winning” was totally conditional on submitting an order
for a product from the catalogue.
To include this requirement in very small print on the last page of the flyer
was, in the Complaints Board’s view, totally inadequate.”
The Complaints Board then turned to the Advertiser’s response and noted where it
stated: “The premise of this promotion, is that every customer does win a prize,
however, as stated on every piece of the promotion - the cover of the wrap, the
catalogue front cover, page 2 of the wrap, and on the prize claim form - the customer
is required to place an order to be eligible to claim his/her prize …”
Turning to the advertisement in front of them, the Complaints Board said there was
nothing in the advertisement that suggested that customers had already won a major
prize and noted that, unlike the above precedent Decision (08/400), the Advertiser
had clearly - and repeatedly – emphasised the requirement that a customer must
purchase an item from the catalogue to be eligible to win one of the prizes listed.
When considering the Complainant’s concern about the use of the scratch panels,
the Advertiser continued: “… the scratching of the silver panels is significant to the
workings of the promotion in that it encourages the customer to become involved with
the promotion and creates excitement around the prizes. However, since the
competition is based on the premise of a preselected draw, the scratching of the
silver panels does not impact the outcome of the prize received by the entrant
although we point out that a customer cannot claim their prize unless they scratch off
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the panel. Scratching the panel is therefore an essential prerequisite to receiving and
identifying the prize for the customer.”
The Complaints Board accepted the Advertiser was entitled to use the scratch
panels as a device to generate consumer interest in the prize draw. It noted that the
available prize pool is clearly notified in the advertisement, along with the need to
purchase from the catalogue to be eligible.
The Complaints Board said that the advertisement did not reach the threshold to be
likely to deceive or mislead the consumer and, as such, had been prepared with the
required sense of social responsibility. Therefore, the Complaints Board found that
the advertisement was not in breach of Basic Principle 4 or Rule 2 of the Code of
Ethics.
Accordingly, the Complaints Board ruled to Not Uphold the complaint.
DESCRIPTION OF ADVERTISEMENT
The direct mail advertisement for Magnamail stated
“$287,857
Total prize pool
YOU HAVE WON
OUR computer has allocated ONE of the prizes below to this catalogue!
Scratch off ALL the silver panels - when your lucky number appears more
than once, you have definitely won ONE of these prizes.
...
“Yes you have definitely WON!
Prize delivery guaranteed on receipt of your order ACT NOW!
…
Make a selection from this catalogue today to claim your prize”
Underneath this wording was a scratch panel with the catalogue number and pictures
of prizes which included jewellery and cash prizes of $25,000 and $5000.
COMPLAINT FROM A. STONE
Please find enclosed for your determination a brochure I recently received in an
edition of "The Press". Whilst the offer does not appear to be as blatantly deceiving
as the one put out by Health Pride Ltd it still does, in my opinion, give the consumer
an unreal expectation in relation to a major prize.
Again the consumer is required to make a purchase from the brochure in order to
claim a prize that, and I quote "Yes! You Have Definitely Won!". The highlight being
the $25,000.00 cash prize.
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It is easy to identify that the scratch boxes contain the required "appears more than
once" so I wonder how many of these brochures have scratch boxes where the lucky
number does not appear more than once?? I would suspect very few if any.
I will look forward to hearing from you once you have had the opportunity to consider
whether this offer is also misleading and bordering on deceptive
Code of Ethics
Basic Principle 4: All advertisements should be prepared with a due sense
of social responsibility to consumers and to society.
Rule 2: Truthful Presentation - Advertisements should not contain any
statement or visual presentation or create an overall impression which directly
or by implication, omission, ambiguity or exaggerated claim is misleading or
deceptive, is likely to deceive or mislead the consumer, makes false and
misleading representation, abuses the trust of the consumer or exploits
his/her lack of experience or knowledge. (Obvious hyperbole, identifiable as
such, is not considered to be misleading).
RESPONSE FROM ADVERTISER, MAGNAMAIL
We understand from A. Stone's letter that he feels the promotion is deceiving but we
firmly believe that is not the case. The promotion is certainly designed to provide the
customer with an incentive to order, but we do not believe it can be construed as
deceiving or misleading.
The premise of this promotion, is that every customer does win a prize, however, as
stated on every piece of the promotion - the cover of the wrap, the catalogue front
cover, page 2 of the wrap, and on the prize claim form - the customer is required to
place an order to be eligible to claim his/her prize. Furthermore, the terms and
conditions which are advertised on page 31 of the catalogue clearly outlines this
requirement - please refer to clause 2 which states Entries can only be made by
ordering from the accompanying Magnamail catalogue. (Please refer to the
attachment which is a copy of page 31 of the catalogue in question, where the terms
and conditions can be found).
In response to A. Stones concern about the scratch panels, the scratching of the
silver panels is significant to the workings of the promotion in that it encourages the
customer to become involved with the promotion and creates excitement around the
prizes. However, since the competition is based on the premise of a preselected
draw, the scratching of the silver panels does not impact the outcome of the prize
received by the entrant although we point out that a customer cannot claim their prize
unless they scratch off the panel. Scratching the panel is therefore an essential
prerequisite to receiving and identifying the prize for the customer.
Most importantly, Magnamail has been operating for over 30 years and we believe
strongly in building relationships with our customers and repeat patronage through
customer satisfaction at a product and service level. We have absolutely no intention
of deceiving or misleading customers as that would simply be detrimental to the
longevity of the business. We have a policy of a 12 month unconditional money back
guarantee whereby customers can return their items and receive a refund, without
question, anytime within 12 months of the purchase.
12/351
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COMPLAINT NUMBER
12/351
APPEAL NUMBER
12/030
APPLICANT
A. Stone
ADVERTISER
Magnamail
ADVERTISEMENT
Magnamail Direct Mail
DATE OF MEETING
30 October 2012
OUTCOME
Declined
SUMMARY
The Advertising Standards Authority Complaints Board ruled on 11 September 2012
that the complaint was Not Upheld. That Decision summarised the following points:
“The direct mail advertisement for Magnamail guaranteed that every customer
who purchased a product from the catalogue would win one of the prizes
shown.
The Complainant said the advertisement was misleading as it gave the
consumer an unrealistic expectation that they would win a major prize. The
Complainant also questioned the use of the scratch panels to show if you
were a winner.
In the Complaints Board view, there was nothing in the advertisement that
suggested that customers had already won a major prize and the Advertiser
had clearly and repeatedly emphasised the requirement to purchase an item
from the catalogue to be eligible for one of the prizes listed.
When considering the Complainant’s concern about the scratch panels, the
Complaints Board said the Advertiser was entitled to use such a device to
generate interest from consumers.
The Complaints Board found the
advertisement had not breached Rule 2 or Basic Principle 3 of the Code of
Ethics and ruled to Not Uphold the Complaint.”
The Chairman stated that all issues raised by the Complainant in the original
complaint were thoroughly canvassed by the Complaints Board. The Chairman
considered the appeal application to have more detail than the original complaint,
however the emphasis was placed on a different issue. She was also of the view that
the appeal application did not contain sufficient grounds to allow an appeal. The
Chairman ruled not to allow the appeal.
[No action required]
Please note this headnote does not form part of the Decision.
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CHAIRMAN’S RULING
The Chairman viewed the application for appeal. She noted that there were five
grounds upon which an appeal was able to proceed. These were listed at Clause 6(c)
of the Second Schedule of the Advertising Standards Complaints Board Complaints
Procedures and were as follows:
(i)
The proper procedures have not been followed.
(ii)
There is new evidence of sufficient substance to affect the decision.
(iii)
Evidence provided to the Complaints Board has been misinterpreted
to the extent that it has affected the decision.
(iv)
The decision is against the weight of evidence.
(v)
It is in the interests of natural justice that the matter be reheard.
Turning to the appeal application, the Chairman carefully read the Complainant’s
appeal application and the relevant documentation regarding the original complaint.
The Chairman noted that the Applicant considered that the matter be appealed as a
matter of natural justice.
The Chairman stated that all issues raised by the Complainant in the original
complaint were thoroughly canvassed by the Complaints Board. The Chairman
considered the appeal application to have more detail than the original complaint,
however the emphasis was placed on a different issue. She was also of the view
that the appeal application did not contain sufficient grounds to allow an appeal.
While acknowledging the concerns of the Complainant, the Chairman said
disagreement with the Decision of the Complaints Board was not in itself grounds
upon which an appeal could proceed. She said that in her view the proper
procedures had been followed, no new evidence of sufficient substance had been
provided, the evidence provided had not been misinterpreted, the Decision was not
against the weight of evidence and there were no grounds under natural justice to
allow the appeal.
Accordingly, the Chairman ruled that there were no grounds on which the appeal
should proceed and as such the application for appeal be declined.
Chairman’s Ruling: Appeal application Declined
DESCRIPTION OF ADVERTISEMENT
The direct mail advertisement for Magnamail stated
“$287,857
Total prize pool
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YOU HAVE WON
OUR computer has allocated ONE of the prizes below to this catalogue!
Scratch off ALL the silver panels - when your lucky number appears more
than once, you have definitely won ONE of these prizes.
...
“Yes you have definitely WON!
Prize delivery guaranteed on receipt of your order ACT NOW!
…
Make a selection from this catalogue today to claim your prize”
Underneath this wording was a scratch panel with the catalogue number and pictures
of prizes which included jewellery and cash prizes of $25,000 and $5000.
APPEAL APPLICATION FROM A. STONE
I guess the only one that would apply is e) It is in the interests of natural justice that
the matter be reheard.
My reasoning is as follows:
1. On the “Prize Claim Form” the emphasis is on “Yes, I want to claim my prize”
and a choice of how the claimant would like the $25,000.00 paid.
2. Under the $287,857.00 Total Prize Pool the cards with the cash prizes by
their very positioning are given more prominence.
3. On the page headed “YES! YOU HAVE DEFINITELY WON!” prominence is
again given to $25,000.00
4. On the page headed “We all won BIG from Magnamail!” prominence is again
given to winners of $25,000.00 and it is not clear whether the names without
photographs were also winners of $25,000.00 or a lesser prize but, in my
opinion, by inference they are also winners of $25,000.00
5. On the page headed “YES YOU HAVE DEFINITELY WON! — Prize delivery
guaranteed on receipt of your order” at the bottom the emphasis is again on
the $25,000.00
6. To be fair and consistent each prize and its value should be given equal
prominence
In my opinion there is clear evidence that the sole purpose of the brochure is to focus
the reader’s mind on “Yes you have definitely won” and the $25,000.00 thereby
giving an unreal expectation that by making an order the prize won is $25,000.00.
This tactic is, in my opinion, inclined to mislead and give undue encouragement for a
person to make an order and that the brochure has not been prepared with a due
sense of social responsibility to consumers and society. Quite the contrary it has, in
my opinion, quite clearly been prepared to unreasonably induce people to make an
order believing that they wifi be the winner of a major prize.
Yes I agree that the use of the scratch panels is designed to promote and create
excitement but since it does not impact on the outcome it can only be construed to
unnecessarily enhance a person’s feeling of being a winner of the prize that is
blatantly highlighted - $25,000.00.
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I wonder what are the odds of a person winning a major cash prize against a lesser
prize and how many people would, in fact, place an order if they were aware of those
odds. There is also no mention of the value of the minor prizes thereby again giving
prominence to the major cash prizes and not allowing the consumer to fairly assess
the difference in value of the four prizes.
Contrary to the Complaint Board Decision it is my opinion that there is clear evidence
that a consumer is lead to believe that they are the winner of a major prize as the
emphasis in the brochure is on the major prize. This brochure is, in my opinion, a
ruse to do nothing more than induce people to place an order.
I would hope that, in the interests of consumer protection, the Complaints Board
would see fit to reverse its decision.