“Win free eye surgery” announced Optical Express emails and banner ads. But was “free” misleading if punters had to commit to the surgery to have a chance of winning and did the link provided to the all-revealing promo rules save the day? Omar Bucchioni eyes the ASA verdict.
Topic: Promotion Marketing
Who: ASA and Optical Express Ltd
Where: UK
When: 17 June 2009
Law stated as at: 30 June 2009
What happened:
Recently the Advertising Standards Authority (ASA) investigated two emails and an internet banner ad for laser eye surgery.
The first email stated “Win Free Laser Eye Surgery – Make laser eye surgery one of your New Year resolutions for 2009 […]. The second email stated “Win Free Laser Eye Surgery – Laser eye surgery is the most commonly performed elective surgical procedure in the world! […]. Both emails had a link underneath labelled “WIN FREE TREATMENT”, which clicked through to the Optical Express website and gave details of the offer.
The internet banner ad stated “WIN FREE LASER EYE SURGERY For your chance to win FREE laser eye surgery, and to arrange your FREE consultation, please complete this form…”
The ASA received five complaints. These challenged whether the claim “Win Free Laser Eye Surgery” was misleading, because participants had to book and pay for surgery before being entered into the draw.
The Optical Express Group was founded in 1991 and is now a Global leader of selected healthcare services. They replied to the ASA saying that they merely stated that free treatment might be obtained as a result of winning a competition. In addition, full terms and conditions were just a click away so that customers would not be misled.
Essentially, the prize draw was open to everyone who had laser eye surgery with Optical Express and the winner would be drawn at random on the last day of each month. Treatment would be carried out subject to patient suitability. The winning patient was selected at random from a list of people who had contacted Optical Express via the appropriate internet or email route and the only qualification for entry into the competition was that the relevant person must have booked laser eye surgery with Optical Express before the end of the competition month and paid the relevant booking fee. If the winner for that month had not yet undergone surgery, the surgery was carried out without charge and the booking fee was refunded. If the winner had undergone surgery then the booking fee and the cost of the surgery was refunded.
The key point was that Optical Express did not believe it was charging for entry to the competition because the cost and the booking fee were the same for people who reserved treatment whether or not they entered the competition. According to the ASA, these were in fact significant conditions likely to affect consumers’ interest in the promotion and should have featured prominently in the ads.
In its ruling, the ASA said that “Neither the emails nor the banner ad made clear that participants must make a commitment in the form of booking eye surgery before being eligible to enter the promotion” so “they were likely to mislead”. This lack of clarity in the ad meant that it broke ASA rules on truthfulness CAP Code clause 7.1 and on the running of free offers and free trials CAP Code clause 32.5.
In addition, the ASA noted that the offer was erroneously called a competition when actually the offer was a prize draw because the prize was awarded in accordance with the laws of chance, not a competition, which would require participants to exercise skill or judgment.
Why this matters:
This is quite an important example of how a free competition prize cannot be described as:
a) “free” – if entrants have to agree to purchase in the first place; and
b) “competition” – if the offer is in fact a prize draw.
In addition, it is worth noting that the button which clicked through to the full terms and conditions did not help to redeem an ad that was on its face misleading in the ASA’s view. The full ASA adjudication can be found here.
