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DECISION Meeting 15 May 2003

Complaint 03/74

Complainant: T. Kennerley Advertisement: Clinique - Sinel-Francis Pharmacy Complaint: The direct mail flyer advertisement from Sinel-Francis Pharmacy, promoting Clinique, contained the wording: "Great Clinique Gift Cozy Colour. Your Great Clinique Gift. Free with the purchase of two or more Clinique products, one of which must be Skin care (excluding accessories)."

The Complainant said: "I am writing to complain about the misleading nature of a print advertisement regarding a Clinique product promotion at Sinel-Francis Pharmacy, 41 Devonport Road, Tauranga. As you will see from the enclosed advertisement, the Pharmacy advertised a „free gift with purchase‟ when buying two or more Clinique products. The advert specifies that one product must be skincare, and excludes accessories. On 21 March 2003 I went to Sinel-Francis Pharmacy to purchase one skincare product and one hair care product (both Clinique). However, I was informed I was ineligible for the „free gift with purchase‟ as hair care products were considered to be „accessories‟ and therefore were excluded from the promotion. I was also informed that hair care products were considered to be „accessories‟ for the purposes of the promotion as they did not „add up‟ to a sufficient dollar value to receive the promotional gift. I consider this to be entirely misleading as nowhere was the term „accessories‟ defined in the advertisement. In addition, the hair care product in question did not add up to an insubstantial sum, being $30 for one product. The advertisement should therefore either define what is included in the term „accessories‟, and/or specify that hair care products were excluded from the promotion. At present, the consumer has no idea as to what the term „accessories‟ entails, and is entirely at the mercy of the retailer as to what is, or is not,

2 03/74 included in the term. Also, if (as the salesperson advised) eligibility is determined on a dollar value rather than the specified „2 products‟criteria, this should also be stated in the advert. Please contact me should you require any further information. I look forward to hearing from you."

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).

Clinique said: "We are in receipt of the complaint from T. Kennerley. We would like to assure you that Clinique Haircare products are not considered “accessories” by our company and this decision was made by the Consultant at counter and contrary to our direction. Eligibility for this gift is also not based on a dollar qualifier as T. Kennerley correctly points out. T. Kennerley certainly should have received the gift with her purchase of one skincare item and a haircare product. Accessories only refer to pencil sharpeners and makeup brushes (non cosmetic product items) which are sold at the Clinique counter. I have spoken with the Pharmacy involved and we will readdress with all our Consultants and stores nationally the criteria for our qualifier, so that this situation cannot arise again. The Clinique Brand advertises and run 8 nationwide Gift with Purchase promotions annually and has not had this situation occur before. The Brand will endeavour, through education, to make sure it does not happen again. I will contact T. Kennerley directly to thank her for her concern and look forward to hearing your comments."

Sinel-Francis Pharmacy said: "With regards to this particular complaint concerning T. Kennerley, a visiting Consultant, employed by Clinique for the early stages of this Gift with Purchase promotion in our store made the decision as to the definition of an “accessory”. As the business owner, I bear the ultimate responsibility for every person on the premises, whether employed by the company or not. I would like to apologise for the experience T. Kennerley has had in our store. It was certainly never our intention to mislead her (or any customer) or breach the Advertising Codes of Practise.

3 03/74 I look forward to the re-education being offered by Clinique and would like to assure you this will result in a new procedure for staff, permanent or otherwise, to follow in future. I will also contact T. Kennerley to offer our apologies and thank her for providing this opportunity to learn from this experience. I look forward to hearing your comments."


The Complaints Board perused the relevant correspondence and the Clinique / Sinel-Francis advertisement. It noted that there had been some confusion as to what constituted an accessory at the point of sale and as a result the Complainant was of the view that the Advertisement was misleading.

The Chairman had indicated that it was appropriate to consider the matter with reference to Rule 2 of the Code of Ethics.

Taking note of the explanations, and the follow-up action proposed by both Clinique and Sinel-Francis Pharmacy in their submissions, the Complaints Board was of the view that the matter had been satisfactorily resolved by the parties involved and, accordingly, the principles of self-regulation had been fulfilled.

The Complaints Board ruled the complaint be Resolved

Decision: Complaint Resolved