Background
Summary of Council decision:
Four issues were investigated, of which two were Upheld and two were Not upheld.
Ad description
An e-mail ad from Moneysavingexpert.com, which described various promotions offered by third parties, included a section headed "THE ONES NOT TO MISS". Underneath, text stated "B'band & phone equiv £15.25/mth + £75 Love2Shop (if line rent paid upfront) ... Check what you pay now - many on c.£16/mth for line rent ONLY ... Ends Thurs. £75 high street shops voucher on hot deal ... Until Thurs, TalkTalk newbies (ie, not had it for 12+ mths) can get this Simply Broadband* deal on a 1yr contract: - Compulsory line rent: You pay £15.95/mth. But we suggest, if you can afford it, you opt to pay £141 upfront for the year (equiv to £11.75/mth), during the online sign-up. - Unlimited broadband: Currently £3.50/mth, so £42 for the year ... - Included calls: None, but you can add 'boosts' for anytime to landlines. - £75 Love2Shop voucher, spendable at Boots, Argos & over 80 other stores. ... Analysis: Excluding calls, if you pay line rent upfront + broadband, the year's cost's[sic] £183, equiv to £15.25/mth (pay line rent monthly, it's £233 - £19.45/mth), plus you get the £75 Love2Shop voucher. If you'd spend that at, say, Boots anyway, factor it in too & it's effectively £108 over the year, equiv just £9/mth (£158 a year or equiv £13/mth). Need a new line? If you don't have a line (or only have a cable one or, in a few circumstances, Sky customers) installation's £50. You'll get that back on your first bill but WON'T get the voucher".
Issue
A journalist with an interest in consumer affairs challenged whether the following claims were misleading and could be substantiated:
1. "B'band & phone equiv £15.25/mth + £75 Love2Shop (if line rent paid upfront)", because they understood the package was for broadband and line rental only, with no calls included; and
2. "Included calls: None, but you can add 'boosts' for anytime to landlines", because they understood the package did not allow 'boosts' for anytime to landlines.
The complainant also challenged whether the ad was misleading, because:
3. it did not make significant conditions clear, including that there was a £20 per month unbilled call limit and there was no information with regard to call charges; and
4. the claim "... it's effectively £108 over the year, equiv just £9/mth (£158 a year or equiv £13/mth)" had been calculated by subtracting the value of a £75 voucher from the actual cash price.
Response
1. Moneysavingexpert.com Ltd said it was standard practice in the telecoms market to offer packages that were not all-inclusive, and therefore the average consumer would not conclude from the ad as a whole that the reference to "phone" in the headline claim related to line rental with calls included. In addition, text below the headline clearly stated "Included calls: None". They said that, as with many online publications, the space available for headline text was limited, which was why they included a comprehensive explanation of the offer's key terms below the headline. They said that consumers could not sign up for the offer on their website; rather, they were redirected to a landing page on TalkTalk's website where all the details of the offer were available. Moneysavingexpert said they had conducted a poll on Facebook in which only 9% of respondents said they thought the headline claim "phone & broadband deal £12/mth" meant that calls would be included; 21% said they thought calls would not be included. The majority of respondents said they would not be sure from the headline claim as to whether calls were included so they would look more to find that out.
2. Moneysavingexpert confirmed that 'boosts' applied to TalkTalk's Simply Broadband offer.
3. Moneysavingexpert confirmed that the £20 unbilled call limit barred users from making further calls if they went above that amount. They said the ad explicitly stated that calls were not included and therefore did not view it as a condition so significant that it should be highlighted to consumers. They considered that the condition was not detrimental to consumers; it simply stopped outgoing calls after the limit was reached, as a means of preventing higher bills. They said that such credit limits were common amongst providers, citing four of TalkTalk's competitors. They said they therefore did not view the unbilled call limit as a significant condition that should be highlighted to consumers. They said they had also checked the way in which such offers were referenced on other third-party websites and none had referred to credit limits.
In relation to information about call charges, Moneysavingexpert said that they did not include all of the small print set out in TalkTalk's terms and conditions. However, they did provide a link to a landing page where all the terms were available prior to the sign up process. They said that other providers' pricing for calls was very similar, so their benchmarking indicated that it was not a term so significant that it required highlighting to consumers. They provided a copy of a poll of their website users that they had conducted in August 2012, which they said showed that a significant proportion of all age categories never or rarely used their home phone for calls. They said that evidence informed their ads and helped them to highlight the information their users would find most useful.
4. Moneysavingexpert said the nature of their weekly e-mail meant that offers they highlighted were never worded in exactly the same way. In order to give consumers a consistent and effective way to compare different types of offer, they outlined that offer by clearly separating the breakdown of the cost of the offer from their analysis of it. They believed that approach did not mislead consumers, because the elements of the offer and their analysis of it were clearly explained.
Assessment
1. Upheld
The headline to the ad stated "B'band & phone equiv ... (if line rent paid upfront)", followed by further claims including "Check what you pay now - many on c.£16/mth for line rent ONLY" and "Add up what you pay for phone & broadband now. Many people typically pay £300+ a year before calls". The ad also featured an image of a computer screen and a landline phone. The ASA considered the overall impression created by the reference to "phone" in the headline, reinforced by the claims that followed and the image of a landline phone, was that the package comprised broadband and inclusive phone calls in the advertised price. We considered the text "Included calls: None ..." contradicted rather than clarified that impression. Because phone calls were not included in the stated price and that was not made sufficiently clear, we concluded the claim was misleading.
On this point, the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising),
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification) and
3.17
3.17
Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication.
(Prices).
2. Not upheld
We understood from information on TalkTalk's website that it was possible to apply a 'boost' to the Simply Broadband package whereby, for an additional amount per month, customers could make unlimited UK local and national calls to landlines. We concluded the claim was not misleading.
On this point, we investigated the ad under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation), 3.9 3.9 Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify. (Qualification) and 3.17 3.17 Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication. (Prices), but did not find it in breach.
3. Upheld
Notwithstanding the concerns referenced at point 1 above, we understood that calls were not included in the price of the standard Simply Broadband package. However, customers could make calls of up to £20 per billing period, at TalkTalk's standard rates, at which point their outgoing calls were restricted until such time as payment had been made for those calls. Information about that £20 "unbilled call limit" appeared in the "Small print" section of the landing page on TalkTalk's website, which was one click away from the ad. The "Small print" section also stated that calls would be charged at the standard rate, and included a further link to where rates details could be found on TalkTalk's website.
We considered consumers would not expect to be restricted in the amount of calls they could make or that they would need to make a payment prior to the end of the billing period to have that restriction lifted. We therefore considered that the £20 "unbilled call limit" was a significant condition which should have been included in the ad, along with a reference that such calls would be charged at TalkTalk's standard rates. We concluded that because the ad did not make significant conditions clear, it was in breach of the Code.
On this point, the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising) and
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualification).
4. Not upheld
The challenged claim used the £75 value of the voucher as part-payment towards the service, when it was not possible to use the voucher towards the cost of the service. We considered that that approach would in most instances be likely to mislead, because the voucher could not be used to obtain a direct discount on the advertised service. However, we considered that in some instances, depending on the specific way in which that approach was presented to consumers in an ad, it might be acceptable.
The ad's headline claim referenced the monthly cost of the service ("equiv £15.25/mth") exclusive of the value of the voucher and instead referenced the voucher as an additional benefit to the offer ("+ £75 Love2Shop"). A further reference to the voucher in bold text stated "£75 high street shops voucher on hot deal". The ad then provided detailed information which broke down the cost of the service on a monthly basis, followed by further information about where the voucher could be spent. The ad then presented, as "Analysis", the calculation on which the headline claim's monthly equivalent cost of £15.25 for the service was based, and then stated "plus you get the £75 Love2Shop voucher. If you'd spend that at, say, Boots anyway, factor it in too & it's effectively £108 over the year, equiv just £9/mth (£158 a year or equiv £13/mth)".
The first reference to the cost of the service inclusive of the value of the voucher appeared towards the end of the ad after detailed information about the cost of the service to consumers and separate references to the voucher. We considered the ad therefore made clear to consumers the actual monthly costs of the service before introducing the idea that the value of the voucher could off-set some of the cost of the service itself. We considered the claim provided a clear explanation of the approach taken, and also made clear that the resultant equivalent monthly cost of the service would only be relevant to consumers who would be likely to spend £75 at one of the shops at which the voucher was accepted anyway. We concluded that in this instance the specific wording of the claim, and the specific context in which it appeared, meant that the claim was unlikely to mislead consumers.
We investigated the ad under CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading advertising) and
3.17
3.17
Price statements must not mislead by omission, undue emphasis or distortion. They must relate to the product featured in the marketing communication.
(Prices), but did not find it in breach.
Action
The ad must not appear again in its current form. We told Moneysavingexpert.com Ltd to ensure their ads for broadband- and line rental-only packages did not imply that phone calls were also included. We also told them to ensure their ads stated significant limitations and qualifications.
