The use of ‘free’ in advertising can sometimes cause confusion for consumers and should not be used unless something is a genuine free offer. Free offers can be conditional on the purchase of other items, however it must be clear how customers can get the free item, the quality of the paid for item should not be reduced, postage costs should not be inflated to compensate, and customers should not have to pay anything other than uninflated postage costs.
The rules and guidance apply to any word which is likely to mean the same as ‘free’ in the context of the ad. Claims such as “gratis”, “complimentary”, “without charge” and similar are likely to be understood by consumers as being analogous to “free”.
Make it clear how customers can take advantage of a free offer
Advertising rules state that ads must make clear the extent of the commitment the consumer must make to take advantage of a free offer. If consumers must make a purchase, sign up to a newsletter or open a subscription to receive something for free, this information must be included in the ad. An ad which offered a “free pair of hands-free binoculars for every reader” on the front page of a magazine was upheld because the ad did not make it clear that customers would only qualify for the free product when making a purchase (Winning Deals Ltd, 06 August 2014).
Don’t charge anything other than uninflated postage cost
Promoters wishing to offer ‘free’ goods cannot legitimately charge for anything other than postage. Other fees such as packaging, packing, administration, handling, or insurance should not be passed on to the consumer. The cost of postage should not be inflated by the advertiser in order to compensate for giving away the free item
Don’t compensate by inflating other costs or reducing quality
If offering a product for free, marketers must not reduce the size or quality of the item that is being offered in order to reduce the costs the advertiser may incur by offering something for free. For example if a free beauty product is being offered with a magazine and the usual selling price is stated, the product must not be smaller in size than the product which the consumer would otherwise buy.
Whilst marketers can charge postage costs, these should not be inflated by the marketer in order to cover some of the costs of offering the free item.
Conditional Purchase Promotions
If the item that is being described as “free” is genuinely separate from and additional to the item that the customer is required to pay for, the offer qualifies as a conditional-purchase promotion and the item may legitimately be described as “free”. Examples of conditional-purchase promotions include if the paid-for item is separable from the free item for example, a free lipstick with the purchase of a magazine, or if the paid-for item has an established price and is usually sold alone without the free item, for example a chocolate bar with 50% extra free. An ad for a promotion which stated “two can dine for £10 with free wine” was considered a conditional purchase promotion and was not upheld because the wine was genuinely separable from the paid-for items (main meal, side dish, dessert), was not supplied with the paid-for items unless the customer complied with the terms of the promotion, and the price remained the same with or without the free item (Marks and Spencer plc 24 December 2014).
Free vs inclusive – offering something for free as part of a package
In contrast to a conditional-purchase promotion, the Committee of Advertising Practice (CAP) Code prohibits the use of “free” to describe “an individual element of a package … if the cost of that element is included in the package price” (Rule 3.25). A package is a combination of features or products offered for a long-term single, inclusive price. Customers cannot exercise genuine choice on how many elements of the package they receive for that price. Each element is intrinsic to the quality and composition of the package being advertised for the package price. Because customers cannot exercise genuine choice over how many elements they receive for the price paid, and the elements are all usually included in the package price, none of the elements should be described as “free”.
A magazine bumper pack was offered with a free gift which was provided with all copies of the magazine, and an additional bonus magazine and A4 stamp set which were advertised as being exclusive to Sainsbury’s. Because the ASA considered that consumers were likely to interpret “bonus” as meaning the same as “free”, and the Sainsbury’s bumper pack was £2 more expensive than the standard magazine without the bonus additions, the use of “bonus” in the ad was considered misleading (Practical Publishing International Ltd, 16 May 2018).
An online ad for a TV which included a “FREE LG SH7 sound bar” for £1999 was ruled against by the ASA because the TV was previously sold on its own for £1749 and the price had been increased when the soundbar was added (John Lewis, 12 July 2017). Similarly, in 2018 an ad for a camera which was advertised for £179.99, and included the text “plus free 16GB SD Card & Case” was considered misleading because the same camera was for sale at the same time without SD card for £159.99 (Argos Ltd, 25 April 2018).
If marketers add an element to an existing package, without increasing the price of the package or reducing the quality or composition of the elements that are already included in the package, they may describe that added element as “free” for a limited period. Once the element has formed part of the package for a certain period, consumers are likely to regard it as a standard “inclusive” feature of the package. As a rule of thumb, therefore, marketers should avoid describing elements that have formed part of a package for more than six months as “free”.
Advertisers can offer something for free as an introductory offer to potential new customers if that product is already existing, for example, an offer of a free pair of sunglasses with the first issue of a fashion magazine, where the sunglasses are separable from the magazine, is likely to be acceptable. Marketers, however, should not advertise a product as free if that product that has never been sold before because the marketer will not be able to demonstrate that the “free” item is additional to what is usually supplied for the price, or that it has added the item to an established package without increasing the price.
Free trials and satisfaction or your money back offers
Promoters should not use the term “free trial” to describe “satisfaction or your money back” offers, “buy one get one free” offers or other offers for which a non-refundable purchase is required. If relevant, promoters should provide a cash refund, postal order or personal cheque promptly to free trial participants. See ‘Promotional marketing: Free Trials’.
This advice is designed to be read in conjunction with the Misleadingness and Promotional marketing sections of the CAP Code and the other entries in this advice section. Also, promoters might want to seek legal advice.
Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the ASA. CAP’s AdviceOnline entries provide guidance on interpreting the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing.
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