Social media is a great way for marketers to reach out to consumers in an informal way and with the development of different social media platforms there are more and more ways for promoters to run promotions.
The rules in Section 8: Promotional Marketing apply to promotions wherever they appear and whoever they are run by. Regardless of the platform, promotions must be run fairly and marketing communications for the promotion must not mislead.
Include all significant conditions in the initial ad
Code rule 8.17 of the Committee of Advertising Practice (CAP) Code states that all marketing communications, or other material referring to promotions, must communicate all applicable significant conditions, or information where the omission of such conditions or information is likely to mislead. The Advertising Standards Authority (ASA) has generally interpreted this as meaning that these significant conditions should be stated in the initial marketing material.
Any information which consumers need to make an informed decision as to whether to participate in the promotion or not will be considered significant. Whilst significant conditions may differ between promotions, Rule 8.17 lists significant conditions which are likely to apply to all promotions, including how to participate, a closing date, the nature and number of prizes or gifts, and any eligibility or availability restrictions. A complaint about a facebook post for a prize draw offering a caravan as a prize was upheld by the ASA because it did not make the closing date clear, or provide details about the nature of the prize (Adwick Caravans Ltd, 18 March 2020).
Rule 8.18 states that, where marketing communications are significantly limited by time or space, they must include as much information about the significant conditions as practicable in the ad, and must direct consumers clearly to an easily-accessible alternative source where all the significant conditions of the promotion are prominently stated. Participants should be able to retain those conditions or easily access them throughout the promotion. However, whether or not an ad is considered sufficiently limited by space will be assessed on a case by case basis. It is important to note that the ASA are unlikely to consider social media posts sufficiently limited by time or space, and are likely to expect all significant conditions to be included in promotional material posted on social media. In 2015, a tweet which advertised a promotion to win a meal at Hard Rock Café was upheld because the tweets did not communicate the significant conditions which applied to the promotion (Hard Rock Café (UK) Ltd, 11 February 2015).
For more information please see ‘Promotional marketing: Terms and conditions‘.
Include a signpost to the full terms and conditions
When advertising promotions with prizes, all other terms and conditions should be made clear before, or at the time of entry, and these should be easily accessible throughout the promotion. This can be done via a signpost to further information, such as a link to the full terms on a website, providing those terms and conditions can be accessed throughout the promotional period. 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, which meant that these could not be accessed by consumers (Thomas Cook Retail Ltd, 18 October 2017). See also 21 Three Clothing Company Ltd t/a PrettyLittleThing, 16 May 2018. Particular care should be taken to ensure terms and conditions are easily accessible when consumers can enter the promotion by sharing or responding to a post.
The Code sets out information that is likely to be necessary to include in the full terms and conditions, including information about how and when winners and results will be made available.
Don’t change the terms and conditions during the promotion
Rule 8.23 states that conditions of entry for prize promotions must only be amended in exceptional circumstances and sets out what promoters must do in these circumstances.
If exceptional circumstances do make it necessary to make changes, any changes must not include anything which could have originally influenced someone’s decision to participate, and promoters must tell participants how to obtain the supplemental or amended rules.
The ASA has ruled that creating and enforcing T&Cs retrospectively is unacceptable – even if the aim is to combat abuse. Please see ‘Promotional marketing: Abuse‘.
Closing dates in particular should not be changed unless there are unavoidable reasons outside of your control AND not changing the date would be unfair to those who sought to participate within the original terms, or those participants would not be disadvantaged by the change.
Deal with participants fairly and don’t disappoint unnecessarily
Promoters are responsible for all aspects and all stages of their promotions. Promoters must be seen to deal fairly and honourably with participants and potential participants, and must avoid causing unnecessary disappointment.
Promoters must also make sure that their promotions are conducted under proper supervision and have adequate resources available to administer them. Promoters running promotions where entry is based on, for example; liking a post, tagging a friend to a post, following particular social media accounts or sharing a post, must make sure they have a reliable method and adequate resources to collect all the entries, and must be able to demonstrate that all participants who have entered in line with the conditions are included when selecting the winner.
The ASA recently considered complaints about a prize draw, in which winners were required to ‘like’ an Instagram post, tag a friend, and subscribe to the influencer’s YouTube channel and two Instagram accounts. Entrants would also receive a bonus entry if they shared the original Instagram post as an Instagram ‘story’. Complainants challenged whether the promotion, which received over a million ‘likes’, and almost three millions comments, was administered fairly. Because the ASA didn’t receive any evidence which demonstrated how the entries would be collated across the Instagram stories and tagged posts, or the size of the pool from which the winner was selected, the ASA concluded that the promotion was not administered fairly and breached the CAP Code (Molly-Mae Hague, 3 March 2021).
Promoters need to take care that appropriate measures are in place to ensure that the structure, or mechanic, of their promotion is not open to abuse. Allowing abuse is likely to cause consumers who have participated fairly to be disadvantaged. For more information see ‘Promotional marketing: Abuse‘.
Select prize draw winners at random
When running a prize draw, promoters need to be able to show that the winner was selected at random. This can be done by using a computer process that produces verifiably random results, by an independent person, or under the supervision of an independent person. Picking names out of a hat is fine as long as someone unconnected with the promotion is there to ensure that it’s done fairly, and the promoter has evidence to demonstrate that this is the case.
The ASA upheld complaints about a prize draw which ran on Instagram because, although the promoter explained that they had randomly selected a shortlist of 100 participants, and that they selected the final winner randomly from this shortlist, they provided the ASA with no evidence to demonstrate that this was the case (Molly-Mae Hague, 3 March 2021).
For more information please see ‘Promotional marketing: Independent judges and observers‘.
Award the prize
Promoters must award the prizes as described in the promotional marketing. If the original prize cannot be awarded, a reasonable equivalent must be offered (8.15.1) and there can be no cost to claim the prize (8.21.1). A complaint about a promotion on YouTube, which asked viewers to like and subscribe to the promoters channel for the chance to win £10,000, was upheld by the ASA because the promoter did not provide them with any evidence to show that the prize had been awarded (Stephen Bear, 16 June 2021).
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 Twitter promotion. The complainant, who had won the opportunity to buy a pair of limited edition trainers, was instead offered a 20% voucher to be used on a future purchase, because the promoter was unable to supply the shoes. The ASA considered that this was not a reasonable equivalent (Nike European Operations Netherlands B.V. 09 May 2018).
It is a promoter’s responsibility to ensure that they take adequate steps and make adequate attempts to contact winners and alert them to the fact they have won. Ringing a winner once will not be considered sufficient (Walkers Snacks Ltd 28 August 2013). In social media, announcing the winner once (for example in a public tweet, post, message or responding on a comments feed) is unlikely to be sufficient.
For more information please see ‘Promotional marketing: Prize winners‘.
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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