Who: Unilever, ASOS and the Advertising Standards Authority (the “ASA”)
Where: United Kingdom
When: 20 May 2015
Law stated as at: 15 June 2015
What happened:
The ASA received two complaints about Unilever’s promotion commemorating the 25th anniversary of their Magnum brand. The promotion was advertised on Magnum UK’s social media platforms and third party websites. Participants were given the chance to win a Henry Holland dress from a limited edition collection of 25 dresses inspired by the Magnum Classics range. According to Magnum UK’s Twitter feed and Facebook page, each dress was worth £5,000. The online retailer, ASOS, which co-promoted the prize draw, similarly advertised the dresses as valued at about £5,000. The marketing communications further stated that the dresses were “hand-stitched” and “heavily embellished”.
Not hand-stitched by Henry Holland himself – misleading?
One complaint was that the marketing of the promotion misled the consumer to believe that the dresses would be hand made by the designer Henry Holland himself rather than his team. The ASA did not uphold this complaint, agreeing with Unilever’s response that most consumers would understand the use of Henry Holland’s name as being synonymous with his team and fashion house. Therefore, most reasonable consumers would not believe the dresses were hand-stitched by Henry Holland personally.
Quality – not as described
The ASA did, however, uphold the complaint that the prizes awarded did not live up to their description. Eight winners complained that the dresses were either ill-fitting or the hand-stitched sequins had dropped off. The ASA rejected Unilever’s response that the fragile nature of the dresses meant that there was a possibility the dresses would be damaged during delivery, because the promotion did not inform consumers of this possibility. It was reasonable for complainants to be disappointed with ill-fitting or damaged dresses in light of the fact that Henry Holland is a luxury brand. The dresses did not match the expectations created by the marketing of the promotion.
Value – unsubstantiated
Finally, the ASA also upheld the complaint that the advertised value of the dresses was not as described. The ASA decided that the £5,000 value attributed to the Henry Holland dresses could not be substantiated. Henry Holland had applied the formula used when converting the cost to wholesale to retail prices, which was not how these dresses were manufactured and distributed. Consequently, the ASA concluded that the wrong formula had been applied and this was not a sufficiently robust way to determine the value of the dresses.
ASOS and Unilever: jointly responsible
ASOS argued that even though they had co-promoted the prize draw, they should not be held responsible for the quality of the prizes distributed as they had taken reasonable care to obtain assurances from Unilever and Henry Holland that the marketing communications they reproduced were accurate. The ASA however pointed out that under the CAP Code, ASOS, as co-promoters, were jointly responsible for marketing content produced in relation to the prize draw. Both ASOS and Unilever should ensure that future promotions do not award prizes that do not match the expectations created by their marketing communications and therefore unduly disappoint consumers.
Why this matters:
Parties looking to enter into a joint promotion arrangement should be aware that as co-promoters they are jointly liable for marketing communications under the CAP Code. In this case, ASOS made detailed submissions to the ASA as to the extent of the checks they made with their co promoters to ensure the accuracy of all promotional copy and the quality of the prizes. They also underlined that they were only involved in developing and executing the mechanic of the promotion on their website, with prize quality and fulfilment Unilever’s responsibility.
This may well have been the position under the joint promotion agreement that was presumably in place between the parties, but ASOS’s submissions were to limited avail as co-promoters are equally responsible in the eyes of the ASA.
