On the 30 October 2019, the Advertising Standards Agency ("ASA"), published its ruling on an Amazon Prime advertising campaign run by Amazon Europe Core Sarl ("Amazon"). The ASA being the body responsible for ensuring non-broadcast advertising complies with the UK Code of non-broadcast Advertising, Sales Promotion and Direct Marketing (the "CAP Code").
The ASA considered complaints about an Amazon ad which stated as part of the checkout process "... we're giving you a 30-day free trial of Amazon Prime! Starting with this order ..." The ad appeared during the checkout process throughout May and June 2019 and, in short, presented a number of options for accepting or rejecting the free trial on offer.
The ASA described the ad, as follows: a gold box included text which stated, "Order Now with Prime". That box was contained within a larger grey box. Text underneath the gold box, but within the grey one, stated, "Continue with FREE One-Day Delivery Pay later". An option to the left in blue text stated, "Continue and don't gain Amazon Prime benefits". Small print at the bottom of the page stated, "By signing up you acknowledge that you have read and agree to the Amazon Prime Terms and Conditions and authorise us to charge your credit card ... after your 30-day free trial ..."
So far, so unclear? A number of consumers asserted that the presentation of the options as set out above was indeed unclear and challenged whether the ad was misleading.
Defending itself to the ASA, Amazon explained the ad was part of its efforts to improve the signup experience for customers and ensure those customers who joined Amazon Prime did so intentionally and became active members who would make the most of their Amazon Prime benefits. Amazon also provided confidential data which it asserted demonstrated customers were clear on the options provided and, in particular, were clear that the "Continue and don't gain Amazon Prime benefits" allowed them to continue without signing up to Amazon Prime.
The ASA found the ad breached rules 3.1 and 3.9 of the CAP Code, as follows:
- The presentation of the options was likely to mislead the average consumer about the exact options available. This is contrary to rule 3.1 of the CAP Code which requires "marketing communications must not materially mislead or be likely to do so."
- The presentation of the options was also likely to mislead the average consumer into signing up for Amazon Prime without being fully aware that after the expiry of the initial 30-day free trial, they would be charged for the membership. This is contrary to rule 3.9 of the CAP Code which requires "marketing communications must state significant limitations and qualifications..."
As part of the ruling Amazon were advised to stop using the ad and to ensure that going forward options relating to signing up to, or electing not to sign up to, Amazon Prime were presented clearly and prominently.
This case highlights that the presentation of an ad is equally as important as the text of the ad itself. It is worth noting that the Amazon ad contained the wording required under the CAP Code (i.e. the qualification re the membership payments becoming due on the expiry of the 30-day free trial) but the confusing presentation of such wording resulted in the ad falling foul of the CAP Code nevertheless.
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