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                                Meeting 6 may 2008

Complaint 08/115

                               Complainant: C. Jagger
                               Advertisement: Brand Developers

Complaint: A television infomercial endorsed by Christy Brinkley and Chuck Norris
introduced a gym equipment set called ‘Total Gym’. After demonstrating various
uses and exercises for the equipment, the voiceover said: “You can try Total Gym
absolutely risk free for a 30 day trial for only $89.95.”

A corresponding visual added, “30 day trial for only $89.95
                                    Credit Card Orders Only
                                    *Please call for terms and conditions
                                    Call now 0800 009 333…”

Complainant, C Jagger, said:

“Type: Television
Where: On 31st December 2007 at approx 10.30am, on TV3

Complaint -
The total gym endorsed by Chuck Norris was advertised saying that it tones and
sculpts and to call now for your 30 day free trial. Pay $89.95 and if not completely
happy after 30 days you can return for a full refund.

I rang on this commercial and was answered by their call centre in which they had to
get a consultant to ring me back. The consultant did this and I was told they would
upgrade me to a 60 day free trial. Pay $89.95 and if after 60 days I was not happy I
could return for a full refund. At no time was I told that they would start charging the
installments during this trial period. I was charged my first installment of $149.90
within 21 days of getting the product.

This is not advertised on the commercial and I was not explained this at the time of
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I feel this is extremely false and misleading advertising as had I known that I had to
start paying for it within the first 30days I would not have ordered it…

(Further correspondence from Complainant, 18 March 2008)

“Thank you for your letter of the 13th March requesting more information about my

The TV advertisement appeared on the 31st December in the morning. It was
somewhere between 9am and 12 noon, although I thought I had watched it about
10.30 -11 am. I believe it was a "As Seen on TV" advertisement.

I am fairly sure it was on TV3, however if this is not correct it would have been on

I hope this helps you with your enquiry and look forward to hearing from you in due

The Chairman ruled that the following provision was relevant:

Code of Ethics

       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).

The Advertiser, Brand Developers, said:

“Further to your correspondence dated 15 April 2008 in respect of the
aforementioned complaint I respond accordingly. Only Brand Developers most
experienced operators are authorised to sell the Total Gym Package being our
premium product. Authorised staff must have a minimum of two years experience
and utilise detailed scripts which clearly outline the product and payment details. This
script is attached for your reference and will have been utilised in the sales call to C.
Jagger. Additionally I have detailed below the schedule of events in relation to C.
Jagger's complaint.

31.12.07       Order placed via telephone by C. Jagger and additional trial period
               offered from 30 days to 60 days. The offer and scripting utilised clearly
               states that first monthly instalment's in respect of the offer will be
               deducted after 30 days. Additionally as part of this offer Brand
               Developers also back this up with full refund of trial cost and first
               payment debited in cases where the equipment is returned within the
               trial period.
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31.01.08       Monthly payment amount debited in line with equipment offer.

13.02.08       C. Jagger phoned to advise of her wish to return the equipment at
               which time a Return Authorisation Number was issued.

16.02.08       Equipment returned to Brand Developers Limited.

28.02.08       Full refund of all payments cleared and returned to customers
               payment account.

The advertisement clearly outlines the offer as a 30 day trial. C. Jagger has been
upgraded to a 60 day trial at no additional cost allowing her more time to realise the
benefits the Total Gym package can offer. Despite C. Jagger's confusion as to the
offer and what appear to be on-going complaints to all authorities with the exception
of the New Zealand Police, Brand Developers had refunded the customer in full and
as an additional measure of good faith sent her free gifts of Thin Lizzy make up
valued at over $200.00 to ease her apparent inconvenience on the 28th February

I thank you for your correspondence and trust you will be supportive in your

Television Commercial Approvals Bureau (TVCAB) said on behalf of the

“This complaint is being considered under the Code of Ethics:
Rule 2 -      should not impair public confidence in advertising

Having reviewed this advertisement the TV CAB cannot identify anything that would
have given cause for us to query the offer featured within the infomercial. The offer is
clear and straightforward.
If there is a problem it would appear to be with the call centre response and the
fulfillment process of the order. This is best answered by the advertiser, but the
advertisement was first approved in March 2007. With several hundred playings
across most Channels, and many thousands of sales, this single complaint sounds
more like a mis-communication or a misunderstanding at the point of sale.

In this instance we believe the outcome lies with the advertiser's response.”


The Complaints Board perused the correspondence relevant to the complaint and
viewed the television infomercial. It noted Complainant C. Jagger was of the view that
the advertisement was misleading. In particular because:

1.   The Complainant enquired about the “30 day free trial period” being promoted
     and was offered a “60 day free trial period” on the same terms and conditions,
     which was accepted.
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2.   Those terms and conditions were clear and unambiguous. They were
     disseminated visually and by voiceover and stated, “30 day trial for only
     $89.95” – (emphasis added).
3.   Contrary to the offer, the Complainant was charged $149.90 (the first
     installment) within 21 days of receiving the equipment.

The Chairman directed the Complaints Board to consider the complaint with regard
to Rule 2 of the Code of Ethics. In this respect, the Complaints Board was required
to determine whether the advertisement contained any material which would, or was
likely to, mislead or deceive the consumer or exploit his/her lack of experience or

The Complaints Board was of the view that the issue related to the timing of the trial
period, in other words, when the clock, monitoring the 30 days, started ticking. Was
it from the date the order was received or from the date the equipment was

The Complaints Board referred to the Advertiser’s submission and noted that the
script used by its staff stated, among other things, “…As you will appreciate the
purpose of this offer is to provide you with the opportunity to totally test the gym
for 30 days in your own home before completing the full amount …” (emphasis
added). With this in mind, the Complaints Board was satisfied that, by its own
admission, the Advertiser confirmed that the trial period started from the date the
consumer was “able” to test the gym in his or her own home. In other words, from
the date the consumer received the equipment.

Consequently, the Complaints Board concluded that any other interpretation was
incorrect and would ultimately mislead the consumer. Therefore, the Complaints
Board concurred with the Complainant’s view that, in this respect, the advertisement
was misleading and in breach of Rule 2 of the Code of Ethics.

Accordingly the Complaints Board ruled to uphold the complaint.

Decision: Complaint Upheld

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