The Advertising Standards Authority (ASA) and Committee of Advertising Practice (CAP) consider a competition to be a promotion in which prizes are allocated on the basis of skill. Promotions for which no skill or knowledge is necessary should not be described as a competition or otherwise imply that anything but chance is involved.
Although they do not give legal advice, CAP understands that questions that nearly all respondents will get right (for example, what is the capital of England?) are unlikely to be considered as based on skill. Such questions would render the promotion a chance-based one, for which consumers should not pay to enter (see ‘Promotional marketing: Prize draws’). Promoters should ensure their promotions are legal and should take legal advice if they are unsure. Also, they might want to check with the Gambling Commission.
Terms and Conditions
Ads for competitions should include all significant conditions. Significant conditions are those which are likely to affect a consumer’s decision to participate. Rules include a non-exhaustive list of conditions which are likely to be considered significant. That list includes how to participate, any entry restrictions (for example, are the promoter’s employees and family excluded?), what the prizes are and a closing date. See ‘Promotional marketing: Terms and Conditions’.
Less significant conditions should be available before or at the time of entry but do not need to be given as much prominence; they might, for example, be stated on an in-store leaflet, accompanying literature or, if entry is by a website, a webpage on the promotor’s website linked to from the ad. They include (but are not limited to): how and when winners and results will be announced; when prize winners will receive their prizes (if more than 30 days after the closing date); whether there is a cash alternative and any restriction on the number of entries.
The terms and conditions should not be too complex for consumers to understand, and must be easily accessed throughout the promotion or in a form retainable by entrants. A complaint about a facebook ad for a promotion was upheld because the link to the full terms and conditions which was included in the ad did not work (Thomas Cook Retail Ltd, 18 October 2017). The ASA has ruled that having important information on the envelope only is unacceptable (Kingstown Associates Ltd t/a Healthy Living Direct, 10 August 2011; HHS Trading (UK) Ltd, 20 June 2007). See Promotional marketing: Terms and conditions.
Changing T&Cs during the promotion should be avoided at all costs and promoters would have to have a robust defence to show that they have dealt fairly with consumers and have not caused unnecessary disappointment. The ASA has upheld complaints where a promoter created and enforced T&Cs retrospectively with the aim to combat abuse (Headwater Holidays Ltd, 08 January 2014). See Promotional marketing: Abuse.
If the selection of a winning entry is open to subjective interpretation, there should always be an independent judge. If there is only one judge, they need to be independent, if there is a panel there should be a least one independent member.
The judge or panel member must be demonstrably independent, especially from the competition’s promoters and intermediaries and from the pool of entrants from which the eventual winner is picked.
Those appointed to act as judges should be competent to judge the competition and their full names must be made available on request. Paying a fee to someone to act as an independent judge would not in itself be considered to compromise their independence.
The ASA ruled that a promotion was unfairly administered and breached the Code where the promoter did not provide details of the independent panel of judges (Rebecca Penny t/a Bridleworks 28 January 2015).
Prizes must be awarded as described, or a reasonable equivalent. If the prize originally offered cannot be awarded then a reasonable equivalent must be awarded, for example if a concert is cancelled, it’s reasonable to arrange tickets for a different date or discuss with the winner an appropriate alternative. In order for an alternative prize to be considered a reasonable equivalent it must be of roughly equal value to the prize advertised. In 2018 the ASA received a complaint from the winner of a promotion who had won the opportunity to buy a pair of limited edition trainers because the promoter was unable to supply the shoes, and instead offered a 20% voucher to be used on a future purchase. The ASA considered that this was not a reasonable equivalent (Nike European Operations Netherlands B.V. 09 May 2018).
The terms and conditions should state how prize winners will be informed, and prize-winners should usually receive their prize within 30 days (Rule 8.28.3). See Promotional Marketing: Prize Winners. Both CAP and the ASA would expect promoters to make all reasonable efforts to contact the winner. Ringing a winner once will not be considered sufficient (Walkers Snacks Ltd 28 August 2013). If, despite their best endeavours, they are not able to contact the winner, promoters do not need to award the prize. Some promoters award the first prize to the runner up.
Plan ahead, and don’t cause unnecessary disappointment
Promoters are responsible for all aspects and all stages of their promotions, and should plan in advance and ensure that there are enough resources in place to run the promotion without any avoidable issues occurring . Promoters must also be seen to deal fairly and honourably with participants and potential participants, and must avoid causing unnecessary disappointment. A complaint was upheld by the ASA because the voting system for s competition did not comply with the rules which were laid out in the terms and conditions, and that the promotion had not been administered fairly and the promoters had not been seen to deal fairly and honourably with participants (Weleda UK Ltd, 02 May 2018).
Exaggerating luck, Gifts v prizes
Promoters should neither imply consumers have won if they have not nor otherwise imply consumers are luckier than they are. One of the most common ways promoters do that is by confusing “prizes” with “gifts”. The difference between a gift (available to all or many) and a prize (awarded to a few) must always be clear to consumers. If all or a significant proportion of participants in a promotion are entitled to it, an award should not be described as a prize; and should be described as a “gift”, “award”, “reward” or similar as long as the context is not misleading (see JDM Marketing Ltd t/a Bright-Life UK, 04 November 2015).
Promoters should not overstate consumers’ chances of winning prizes (rule 8.20), claim that consumers are luckier than they are by, for example, using words like “finalist” or similar (rule 8.21), or falsely claim or imply that consumers have won, will win or will, on doing something, win a prize if that prize does not exist.
This advice is designed to be read in conjunction with the Promotional marketing section 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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