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Insight

How hard do you have to try…?

David Bond
08/10/2014
The ASA published its weekly rulings today and included an interesting complaint that explored the extent to which a marketer can make a conditional claim without that claim becoming misleading. On The ASA published its weekly rulings today and included an interesting complaint that explored the extent to which a marketer can make a conditional claim without that claim becoming misleading. 

On its health insurance website, www.bupa.co.uk, BUPA included text stating "With our private GP services, time is on your side at last. We aim to give you an appointment on a next day basis and will always try to accommodate urgent requests on the same day". A consumer claimed that this was misleading and queried whether it could be substantiated because they were unable to book an appointment for the following day.

BUPA responded by saying that they used the words "aim to give you a next day appointment" and "try to accommodate urgent requests on the same day" because their systems allowed that level of response but not on every occasion. Consequently they refrained from making any promise or guarantee that a GP appointment could be made within a certain time frame.

Crucially, BUPA was able to provide supporting data for the number of bookings that had been made with their GP services over a sample two-week period during August. Of the 50 patients who had requested a same day or next day appointment during this sample period only one patient was not able to make a booking the next day. BUPA felt that this indicated that they were capable of providing a same day or next day appointment for the majority of their patients.

The ASA agreed with BUPA, noting that the claim did not guarantee a same day or next day appointment with their GPs and that the offer was presented in conditional terms, such as "aim" and "try", to reflect that BUPA would not always be able to make same day or next day appointments.

An important point for all marketers, however, is that simply making an offer conditional is not sufficient. If a marketer claims that it will "try" or "aim" to provide a certain service then it must also be able to demonstrate that it was, in fact, able to achieve its claim in a large majority of cases. In this case, BUPA was able to demonstrate that 98% of patients were able to make a same day or next day appointment with a GP. Without a high level of achievement there is a real risk that the claim would be regarded as being misleading.

Given the facts of this case, because there was no guarantee and because BUPA had delivered on the claim to a large majority of patient the ASA concluded that the claim was not misleading and dismissed the compliant.

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