Background

Summary of Council decision:

Two issues were investigated, both of which were Upheld.

Ad description

Claims on www.cigirex.co.uk and a national press ad for an electronic nicotine dispenser:

a. A national press ad was headlined "LOOKS, SMOKES, TASTES & SATISIFIES like a cigarette". Text appearing on what appeared to be a cigarette packet stated "CIGIREX. Contains Nicotine, Zero Tobacco, Zero Tar, Zero Tobacco Smoke, Zero odour ... 100% Satisfying". The ad compared Cigirex to cigarettes and provided further information about the product and how to buy it. Under the heading "TRY BEFORE YOU BUY", the ad stated "So confident are we that you will love Cigirex that we invite you to use it on a try before you buy basis. Simply call our FREE orderline and enjoy Cigirex for 14 days absolutely FREE. If for any reason you are not satisfied, you may return to us within 14 days and you will not be charged (After 14 days you will be charged £19.95 plus p&p).

b. Claims stated "Try Before You Buy. Get 1 Starter Kit. Includes 2 Nicotine Cartridges, 1 Battery and 1 USB Charger (Regular, Menthol or Light). EQUIVALENT TO 70 CIGARETTES. A £0.01 process charge will be added to the trial kit". The web page invited consumers to complete their details and provide payment details. Underneath the response panel, text stated "I agree to the terms and conditions (CIGIREX Progam)".

Under the heading "PURCHASING THE PRODUCT" of the terms and conditions, claims stated "Try Before You Buy" Starter Kit: Upon placing your initial purchase CIGIREX will immediately send you a Starter Kit in the flavor of your choosing for FREE (minus £.01 authorization charge). The kit includes one rechargeable battery, 2 nicotine cartridges, one usb charger and a carrying case with instructions. You have 14 days to try the Cigirex product then you will be charged £19.95 + P&P. You can return the Cigirex product anytime during the 14 days and you will not be charged. When enrolled in the Cigirex Refill Program we will ship you 5 refill cartridges every 30 days until you call customer service and cancel. The monthly charge for the Cartridge Refill Value Plan is £19.95 + Free Post & Packaging per month ... As a member in the Program, you have 30 days to try the Product (30 Day Satisfacton Guarantee). Please note that delivery time is subtracted from your Satisfaction Guarantee, and will reduce the number of days allocated to your this period [sic]. If the Product is not right for you, call The [sic] customer service number below during the 30 day Period, as long as you return the product in accordance with the time limit described in Section 4".

Section 4 stated "… you must call the customer service below between the hours of 9AM to 5PM (GMT). If you cancel and would like to be refunded for the full amount of the Starter Kit minus Post and Packaging you must return the starter kit with a return merchandise authorization (an .RMA.) number within 30 days from the date you placed your order. If you fail to cancel prior to the expiration of the 30 Day Satisfaction Guarantee period or you fail to return the starter kit with an RMA number within the 30 days from when you placed your order then your return/refund may not be valid or processed ... For purposes of calculating the 30 days for this refund/return policy, each Product that is shipped to you after the expiration of the Trial Period is deemed to have been ordered when such Product is billed to your credit card".

Issue

The ASA received two complaints.

1. Both complainants challenged whether ad (a) was misleading because they believed it failed to make sufficiently clear customers would receive refill packs every 30 days unless they cancelled within the free trial period.

2. One complainant challenged whether ad (b) was misleading for the same reason.

Response

1. & 2. UKAMS plc, Cigirex's ad agency, responded on their behalf. They said the ads were for a "Try before you buy" offer (the Starter Pack) which invited consumers to order the starter pack and that it was not associated with the refill programme. They said, therefore, ad (a) did not mention the refill programme because it was irrelevant. They said unless a consumer decided to enrol in the refill programme at the time of their starter pack order, they would not receive any refills.

UKAMS explained, however, consumers who accepted the terms and conditions as part of the website ordering process for the Starter Pack, were enrolled in the refill programme. But, if customers were dissatisfied and decided to return the starter pack within 14 days, they would also have their refill programme subscription cancelled.

UKAMS said that Cigirex's terms and conditions, available on the website, were very clear. They stated that consumers regularly received refill cartridges when enrolled on the refill programme. They did not believe the ads were misleading.

Assessment

1. Upheld

The ASA understood from both complainants, who had ordered the Starter Pack, that they were enrolled into the refill programme and neither had been aware that was the case.

Ad (a) made no mention of the refill programme and only featured the Starter Pack. We understood from one of the complainants that they could not complete their Starter Pack order without agreeing to the terms and conditions of the CIGIREX programme. UKAMS confirmed that consumers who agreed the terms and conditions enrolled themselves into the refill programme at the same as ordering the Starter Pack. We therefore considered enrolment into the refill programme was a condition of obtaining the Starter Pack. That was a significant condition which could have affected a consumer's decision to place an order and should have been included in the ad. Because it was not, we concluded ad (a) was misleading.

On this point ad (a) breached CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising) and 8.17.1 (Significant Conditions for Promotions).

2. Upheld

Ad (b) gave no information about the refill programme except for the claim "I agree to the terms and conditions of the CIGIREX programme", which consumers had to tick. The terms and conditions stated that consumers enrolled in the refill programme would receive refill cartridges until such time they cancelled. However, that information appeared under the section headed "Try Before You Buy" Starter Kit". We considered consumers were likely to see the Starter Pack and the refill programme as separate and different products. As stated above, we considered enrolment in the refill programme was a condition of obtaining the Starter Pack. We considered ad (b) should have made that clear and because it did not do so, we concluded it was misleading.

On this point, ad (b) breached CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising) and 8.17.1 (Significant Conditions for Promotions).

Action

The ads must not appear again in their current form. We told Cigirex to include significant conditions when promoting their "Try before you buy" starter pack.

CAP Code (Edition 12)

3.1     3.3     8.17.1    


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