Complaint: 17/016

Skin Physics, Television

Details

Complainants
G
advertisers
Skin Physics
Year
2017
Media
Television
Product
Health and Beauty
Clauses
Decision
Not Upheld
ASA Links
Website Listing
Decision Document

Document





COMPLAINT NUMBER
17/016
COMPLAINANT
G & D Russell
ADVERTISER
Skin Physics
ADVERTISEMENT
Skin Physics, Television
DATE OF MEETING
28 February 2017
OUTCOME
Not Upheld


SUMMARY

The Skin Physics television advertorial for Dragon's Blood beauty products was screened on
TV3 and involved a female presenter who promised a full-sized jar of "sculpting gel" free to
the first 195 callers and a further three bonus gifts "if you call in the next five minutes." An
image of three products and three packages was shown. The female presenter said the free
gifts were worth $264. At the end of the advertisement a disclaimer said: "Free jar and free
gifts worth over $264" with an 0800 number and "30-day free trial, credit card holders only,
P&H $14.95" and "Ful T&C" at the Dragon's Blood website. Above the disclaimer was an
image of four products and three containers which had also been aired earlier in the
advertisement.

The Complainant was concerned that the advertisement said seven products would be
provided free but when the products arrived the statement indicated some of the seven
products were on a 30-day trial and the Complainant's credit card was subsequently debited
$260 for what they had been assured by the advertising and by phone were free.

The majority of the Complaints Board said the advertisement clearly offered a free jar of
"sculpting" gel and three bonus products. The minority of the Complaints Board said the
advertisement was not clear about what was on offer and an image showed what could have
confused a viewer into perceiving there were seven free products.

In accordance with the majority the Complaints Board ruled the complaint was Not Upheld.

[No further action required]

Please note this headnote does not form part of the Decision.



COMPLAINTS BOARD
DECISION

The Chair directed the Complaints Board to consider the advertisement with reference to
Basic Principle 4 and Rule 2 of the Code of Ethics. This required the Complaints Board to
consider whether the advertisement had been prepared with a due sense of social
responsibility to consumers and to society and whether it contained any statement or visual
presentation or created an overall impression which directly or by implication, omission
ambiguity or exaggerated claim was misleading or deceptive, was likely to deceive or
mislead the consumer, made false and misleading representation, abused the trust of the



17/016
consumer or exploited their lack of experience or knowledge. (Obvious hyperbole,
identifiable as such, is not considered to be misleading.)

The Complaints Board ruled the complaint was Not Upheld

The Complaint
The Complaints Board first considered the Complainant's concern that the advertorial
promoting Dragon's Blood beauty products said that seven products would be provided
free. The Complainant said they had ordered the free products and checked directly with
the Australian company to confirm all seven products were free. The Complainant said they
"insisted that they only send the free products even though they wanted to send a 30 day
trial product as well." The Complainant said when the products arrived the statement
indicated some of the seven products received were on a 30-day trial. The Complainant
continued: We emailed the company to confirm if the products were part of the seven
advertised free one or if they were on trial. We have not heard back from this company
since but have just noticed a $260 charge from this company on our credit card."

The Complainant noted that the company had been "vague" in telephone conversations and
had not replied to emails "but has charged us for products that we were assured were free
by advertising on TV3 and the company's representative on the phone."

The Advertiser's Response
The Complaints Board turned to the response submitted by counsel for the Advertiser,
Biophysics Australia Pty Limited. The Advertiser's response noted that the Dragon's Blood
advertorial offered customers who called the 0800 number onscreen, or registered for a
sales agent call-back at the Advertiser's website, one free Facial Sculpting Gel for the first
195 callers and three bonus gifts for callers who called "within the next five minutes." These
bonus gifts were a cleanser, an "anti-oxidant protection moisturiser" and a "targeted dark
spot eraser." The Advertiser noted that the Complainant stated the advertisement said
seven products were free and that they received seven products but were charged $267
plus $14.95 P&H costs. The Advertiser said at no point in the advertorial was it verbally
stated or visually suggested there were seven free products available and a total of four
free products was clearly shown. The Advertiser believed the Complainant had likely
counted the three product packages displayed along with the four free products, totalling
seven but it was clear throughout the advertorial and in the terms and conditions referred to
onscreen and over the phone by sales agents that the term "free" referred to only four
products. The Advertiser maintained a search of the data base showed the Complainant
had mistakenly replied to the incorrect email address and had they replied to the correct
address the email would have been responded to within approximately two working days.

The Advertiser believed the Complainant had incorrectly interpreted the offerings outlined in
the advertorial but that the Advertiser had, in good-will and as a responsible corporate
citizen, provided the Complainant with a full refund of $267 for products that were never
intended or advertised to be free and allowed the Complainant to keep the products. The
Advertiser did not consider the Advertising Code to have been breached but was
withdrawing the advertorial which would not appear in the form being considered by the
Complaints Board.

The Complaints Board Discussion
The majority of the Complaints Board said the advertisement clearly said there were two
free offers, the first for a jar of facial sculpting gel for the first 195 viewers who rang straight
away and the second for three products, a cleanser, a moisturiser and a "targeted dark spot
eraser" on a 30-day free trial. The majority of the Complaints Board said the script was
clear. The majority believed it was not reasonable to take from the advertisement that there
were seven free products.
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A majority of the Complaints Board said the advertisement was not misleading and had
been prepared with the due sense of social responsibility required by the Code of Ethics.

The Complaints Board also observed the Complainant has been provided with a full refund
of amount debited from their credit card and was allowed to keep these products noted the
Advertiser's advice that the Advertorial will be withdrawn and will not appear in its current
form.

The minority of the Complaints Board said the lengthy advertorial contained a number of
different messages about different parts of the offer and was not clear, as the complaint
confirmed. The minority said some viewers could have been confused by the images of the
products. The minority noted that at the 25 second point of the advertisement an image of
three products and three packages appeared on screen and, momentarily after, this image
appeared on the left of the screen with a line-up of three packages and four products on the
right. The products in the latter view, which appeared several times, added up to seven
which could have been misleading for consumers.


In accordance with the majority the Complaints Board ruled the complaint was Not Upheld.



DESCRIPTION OF ADVERTISEMENT

The Skin Physics television advertorial for Dragon's Blood beauty products was screened on
TV3 and involved a female presenter who promised a full-sized jar of "sculpting gel" free to
the first 195 callers and a further three bonus gifts "if you call in the next five minutes." An
image of three products and three packages was shown. The female presenter said the free
gifts were worth $264. At the end of the advertisement a disclaimer said: "Free jar and free
gifts worth over $264" with an 0800 number and "30-day free trial, credit card holders only,
P&H $14.95" and "Ful T&C" at the Dragon's Blood website. Above the disclaimer was an
image of four products and three containers which had also been aired earlier in the
advertisement.

COMPLAINT FROM G & D RUSSELL

This programme has had an ongoing infomercial promoting Dragons Blood beauty products.
The advert said that 7 products would be provided free. We ordered the free products but
checked directly with the Australian company if all 7 products were free and insisted that
they only send the free products even though they wanted to send a 30 day trial product as
well. When the products arrived the statement indicated that some of the 7 products
received were on 30 day trial. We Emailed the company to confirm if the products were part
of the 7 advertised free ones or if they were on trial. We have not heard back from this
company since but have just noticed a $260 charge from this company to our credit card.

We find this advertising to be false. It clearly stated 7 free products. We received 7 products
but have been charged for them. Your tv company is part of this false advertising and should
remove any further advertising of this false nature.

The company was vague in our telephone conversations and has not replied to our Emails
but has charged us for products that we were assured by your advertising and their phone
person that they were free.




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CODE OF ETHICS

Basic Principle 4: All advertisements should be prepared with a due sense of social
responsibility to consumers and to society.

Rule 2 Truthful Presentation: Advertisements should not contain any statement or
visual presentation or create an overall impression which directly or by implication,
omission, ambiguity or exaggerated claim is misleading or deceptive, is likely to
deceive or mislead the consumer, makes false and misleading representation,
abuses the trust of the consumer or exploits his/her lack of experience or knowledge.
(Obvious hyperbole, identifiable as such, is not considered to be misleading).

RESPONSE ON BEHALF OF ADVERTISER FROM SIMPSON GRIERSON

1.
We act for Biophysics Australia Pty Limited.

2.
We refer to your letter dated 1 February 2017. As requested, we provide our client's
comments in regards to the complaint received from G and D Russell (Complainant)
concerning the above advertisement (Advertorial).

Executive Summary

3.
Our client does not consider it has breached the Advertising Codes of Practice
(Advertising Codes), as outlined in your letter, as it believes the Complainant
incorrectly interpreted the offerings outlined in the Advertorial. As such, our client
does not believe that the Advertorial misled the mistaken Complainant.

4.
Further, we are advised that our client has taken the following self-regulatory
measures, in good-will, as a responsible corporate citizen:

a) the Complainant has been provided with a full refund of $267 debited from their
credit card for the products that were never intended or advertised to be free and
was allowed to keep these products; and

b) although our client does not consider the Advertising Code was breached in the
manner noted by the Complainant, the Advertorial will be withdrawn and will not
appear in its current form.

5.
In light of the above, our client requests that the complaint is not upheld.

Background

6.
The Advertorial featured our client's skin care product, Dragon's Blood, and made the
following offers to customers who either called the 0800 number onscreen or
registered for a sale's agent call back at the dragonsblood.co.nz website:

a) one free Facial Sculpting Gel for the first 195 callers (Offering 1); and

b) three bonus gifts for those who called "within the next five minutes", those
products being one 3-in-1 Treatment Cleanser, one Anti-Oxidant Protection
Moisturizer and one Targeted Dark Spot Eraser (Offering 2), (together, the Free
Offerings
).

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7.
The Complainant states "the advert said that 7 products would be provided for free".
The Complainant further states that they received 7 products but were charged for
$267.00 plus $14.95 P&H costs.

Our Reasoning

8.
You have referred our client to the following sections of the Advertising Codes:

Code of Ethics -- Basic Principle 4, Rule 2.

All advertisements should be prepared with a due sense of social responsibility to
consumers and to society.

Truthful Presentation -- Advertisements should not contain any statement or visual
presentation or create an overall impression which directly or by implication, omission,
ambiguity or exaggerated claim is misleading or deceptive, is likely to deceive or mislead the
consumer, makes false and misleading representation, abuses the trust of the consumer or
exploits his/her lack of experience or knowledge. (Obvious hyperbole, identifiable as such, is
not considered to be misleading).

9.
Our client does not believe the Advertorial has breached the above sections of the
Advertising Codes. This is because at no point in the Advertorial was it verbally
stated or visually suggested that there were seven free products available. Therefore
the Advertorial could not be considered misleading or deceptive.

10.
As outlined in paragraph 6 of this letter, the combined total number of products
included in Offering 1 and Offering 2 amounted to 4 free products.

11.
Our client believes that the Complainant has likely mistakenly misinterpreted the
offerings made in the Advertorial by counting the displayed product packaging as
additional free products. Therefore instead of seeing 4 free products, the
Complainant may have counted 7 (being the 4 free products and 3 outer packages).
However, it is clear throughout the Advertorial and in the terms and conditions
referred to in the above screen shot (as well as over the phone by sales agents) that
the term "free" refers to only 4 free products.

12.
Additionally, and in response to the Complainant's comment that our client did not
respond to their email, we are advised that our client has undertaken a search of its
email database. It appears that the Complainant mistakenly replied to
[email protected].The correct email address
is
[email protected]. Had the Complainant contacted the correct email
address, we are advised that this email would have been responded to within
approximately 2 business days (which is the usual turnaround time for responses).

Self-Regulatory Measures Taken


13.
Our client carries a strong level of social responsibility into the production of its
products and advertorials. We note that our client obtained Therapeutic Advertising
Pre-vetting Service (TAPS) approval of the Advertorial prior to the Advertorial being
aired. Our client would be happy to provide evidence of this if required.

14.
Further, we are advised that our client has taken the following self-regulatory
measures in good-will as a responsible corporate citizen:

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17/016
a) the Complainant has been provided with a full refund of $267 debited from their
credit card for the products that were never intended or advertised to be free and
was allowed to keep these products; and

b) although our client does not consider the Advertising Code was breached in the
manner noted by the Complainant, the Advertorial will be withdrawn and will not
appear in its current form.

15.
In light of the above, our client requests that the Complaint is not upheld.
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