Fair is a difficult word to define. One person’s unfair is another’s opportunism. Recently however, the EU Court of Justice, the Administrative Court in the UK and the Advertising Standards Agency (ASA) have all had a go. From an email marketing point of view they have all come to more or less the same decision, one that some might feel is beyond reasonable.
A well-know high street chemists advertised ‘Little Me Organics Oh So Gentle Hair and Body Wash’, the copy saying that it contained ‘pear, mallow & organic aloe vera . . .’
You might have felt that the chemists had a strong defence regarding using the word organic as there was no legal definition of it. Further, it had taken the trouble to ensure that the phrase ‘Little Me Organics’ through to ‘Body Wash’ was the product brand name. They also produced four independent reports which agreed that there was organic content in the product albeit a bit less than 5%.
In the opinion of the ASA the use of the term organics would give rise to the belief in the minds of the customer that it had been independently accredited or that it had a high proportion of organic ingredients. Neither applied in this case. They came to the conclusion that the advertisement breached ‘misleading advertising’ and ‘substantiation’ rules in the CAP Code.
The next step was a decision on a second hand car sale. The Administrative Court said that advertisements must include all relevant information to ensure that they do not mislead customers or those reading it. The test was whether the average customer might have been deceived and caused to enter into a transactional decision they would not have taken had they known the relevant facts.
The EU Court of Justice took the matter a stage further in relation to promotions in the form of prize where the ‘winners’ had to incur expenses in order to claim or take possession of their prize.
The main criticism of the five promotions investigated was that a false impression was created in the mind of the consumer giving the belief that they had already won a prize. What had actually happened was that the winner had to pay money, or incur a cost, to claim any prize.
This decision is probably the most far-reaching as it came to the conclusion that a phone call, and even a stamp for a letter, was a cost incurred. The promotions gave a false impression.
An example given is of a prize which involved a big sports event. If it was advertised as ‘the chance to be at the match’ and the customer would have to incur costs to get to the stadium then this would be unlawful, even if the costs were disclosed somewhere in the rules.
If the promotion was for ‘two tickets to the match’ then this would not fall foul of the legislation.
The three cases reinforce, and very firmly, the consistent nature of decision with regards to advertising, which includes email marketing: you must be open, fair and clear in your advertising.
Author: Aaron Bond is a network marketing researcher with a keen interest in email marketing. His articles aim to provide valuable tips for online business entrepreneurs; helping to create strategies and take action to increase leads and cash flow. We suggest visiting Wizemail Email Marketing Company for more information.