ASA Ruling on American Express Services Europe Ltd American Express

The ASA has banned American Express’ “Everything Has an Upside” ad for their Platinum Cashback Everyday Credit Card, after ruling that it had exaggerated the claim that consumers get 5% cashback on all purchases.

The complaint 

The TV advert, seen in April 2017, featured different situations that could result in unexpected  spending, such as a plumbing leak or dropping a mobile phone in water. A voice-over stated,  “Sometimes we have to pay for things we don’t actually like. But there is an upside to  everything. There is a card that could give you 5% cashback on all purchases. Even the ones  that didn’t go to plan. So switch now to the American Express Platinum Cashback Everyday  Credit Card. Search Amex Cashback”. 

On-screen small print stated “Minimum annual spend for cashback eligibility is £3,000. 5%  cashback in your first three months of Card membership. Maximum £100. Up to 1%  cashback thereafter”.  Two complainants challenged whether the claim “There is a card that could give you 5%  cashback on all purchases” was misleading and exaggerated the cashback offer. 

The response 

American Express said that the average consumer would not understand the claim “There is a  card that could give you 5% cashback on all purchases” as an absolute claim when heard and  seen in combination with the qualification that appeared at the bottom of the screen at the  same time as the claim was made in the voice-over. The voice-over also included an over  emphasis on the word “could” which also underscored the limitations inherent in the campaign. 

Text stating “Terms, exclusions and limitations apply” appeared in bold alongside the APR and  American Express said that the advert made it clear via the on-screen text that the cashback  was subject to a maximum cashback amount of £100, the rate dropped to 1% after three  months, and there was a minimum annual spend of £3,000. 

American Express considered that this information was sufficiently prominent and clarified the  headline claim, but did not contradict it. They did not believe that the advert was misleading or  that it exaggerated the cashback offer. They said that it was common industry practice for  cashback offers to contain those types of clarifications. 

Clearcast said that they asked American Express to change the claim to state “could”. They  had also asked American Express to amend the voice-over to make clear that the offer was  only available to new customers. Clearcast considered that the combination of the voice-over,  and the bold text and fundamental terms, exclusions and limitations set out in the on-screen  text made it clear that “5% cashback on all purchases” was not an absolute claim. 

The decision 

Whilst the ASA acknowledged American Express’ proactive attempt at transparency, it said  that the campaign had significant limitations and these were not adequately brought to the  consumers’ attention. It stated that the font used for the disclaimers was small and the text  describing the significant conditions was situated within a larger block. The ASA considered  that the qualification was not sufficient to override the impression given by the headline claim  that customers would be able to get 5% cashback on all purchases without limitations. It  therefore concluded that the advert was misleading. 

Why is this important? 

Marketing teams always want to run with the boldest headline claim they can, even though  there may be significant limitations to an offer (as here where the 5% cashback expired after 3  months). This case is important because it underlines the fact that qualifications to headline  claims often simply won’t work. What isn’t clear is the extent to which the claim might have  survived had the qualification been more prominent. The ASA adjudication is not clear on this. 

The case is also a helpful reminder that, just because you get Clearcast clearance, doesn’t  mean you’re in the clear. 

Any practical tips? 

As a working practice, always try and avoid small print which qualifies a headline claim. It puts  you on the back foot, however prominent you make the qualification. The ASA adjudication  suggests that prominence may count – and of course it might just work if it really is prominent  enough for the consumer to view and digest it so as to be able to make an informed decision.  But be careful – the ASA generally takes a hard line on the qualification of headline claims