ASA Adjudication on Silver Fern Services Ltd

Ad

An online prize promotion was headlined "WELCOME TO OUR FREE £50 MILLION BIG & FRESH SUPER DRAW PROMOTION". Text below stated "YOU CAN ENTER UP TO 8 TIMES … Prize values total more than £25,000,000* each month, including over 2,000,000 cash prizes and 20 Mercedes CLS's [sic], or, cash equivalents. Click on the 'Prizes to Win' button to see the full list".

Issue

The Institute of Sales Promotion (ISP) objected that:

1. the description of the promotion as a "draw" was misleading, because they understood it was unlikely that all of the prizes would be won; and

2. the asterisk shown next to the £25,000,000 "prize value" was not linked to any additional information; they challenged whether that amount was available to win.

3. The ASA challenged whether the promotion was fair because it understood that respondents who had purchased the product were allocated more entry codes than those who had not.

CAP Code (Edition 11)

Response

Silver Fern Services Ltd (SFS) said they had not received any complaints; they had also received two positive e-mails from consumers.  They said the promotion was honest and well conceived; it provided consumers with a fair opportunity to win prizes and did not breach the CAP Code.   

1. SFS said the promotion was a prize draw, in which "prizes were allocated by chance but no charge was imposed to participate", as defined by the CAP Help Note on Promotions with Prizes.  It was operated as a 'pre-selected winner' promotion, where winning numbers were drawn about 10 days before the stated draw dates.  They said it would be naive, however, to expect prizes in such a draw to be awarded to another entrant if the winning number was not allocated to, or entered by, a consumer. There would be no commercial merit in every prize being won if that made the prize value greater than the projected profit for the promotion.  It was also not the case that prizes would "often" be re-allocated to another entrant as they might in a traditional prize draw. That would be self-defeating, potentially unfair to other consumers and could invalidate the promoter's prize indemnity insurance.  They pointed out that prizes could be awarded only to qualifying participants and as the promoter they were entitled to make enquiries to ensure that consumers had been truthful; for example, when they had declared their age.  Because there were several circumstances in which prizes might not be awarded, SFS had chosen to include the statement " ... not all prizes will necessarily be won" on their website.

2. SFS said the asterisk was intended to link to asterisks on the 'Prizes to Win' page of the website. The invitation to " ... click on the 'Prizes to Win' button to see the full list" directed consumers to that page, where text stated "Prizes which can be won*!"; small print further below stated "*Terms and conditions apply.  Not all prizes will necessarily be won".  They said the prizes were covered by prize indemnity insurance but disclosing details of that insurance could prejudice their business model and compromise confidentiality.  SFS provided copies of two appendices from their insurance document.         

3. SFS said the promotion was advertised on egg cartons for seven to eight weeks and offered consumers over 18 years of age the opportunity to enter up to two prize draws online; those who registered before the date of the first draw could enter both draws.  When consumers had completed their registration, they could opt whether to enter a promotional code, which were readily available and found on the cartons.  The wording of the terms and conditions stated "entry is free and registration can be finalised without a promotion code, although, if a promotion code is utilised at registration, twice the quantity of unique draw numbers will be allocated to the participants [sic] online account".  The full terms and conditions were available on the promotion site.  

SFS did not feel there was anything wrong in offering a 'reward' to consumers who opted to purchase the eggs given that the purpose of the promotion was to increase sales of eggs. Over 97 per cent of participants had used a promotion code to register and the allocation of more draw numbers to those participants was used to gauge how successful the promotion had been.  They pointed out that, because the codes and web address were on the outside of the cartons, consumers would be able to record those details without making a purchase if they wished.  The difference in entry numbers allocated was determined by an automated system and depended on how many entries participants made.  Consumers who participated in all possible stages of the promotion using codes obtained from egg cartons received 130 entry numbers whereas a consumer who did not use a promotional code but also participated in all stages received 125.  It was decided to allow entry without a promotional code to ensure that consumers who inadvertently began the registration process without one would not be disappointed at the final stage of registration.

Assessment

1. Upheld

The ASA acknowledged no charge was imposed to participate in the promotion and that the terms and conditions described how the promotion would operate.  We noted the promotion did not follow the format of a traditional prize draw, where a winner was always chosen at random from all valid entries returned by participants. However, we acknowledged that in 'pre-selected winner' prize draws, where the winning number was selected, usually, prior to promotional packs being distributed and it was only later determined whether a consumer had entered the winning number, prizes were not always awarded if that particular winning number had not been returned.  We considered, assuming that all other details of the promotion warranted that description, that it was therefore acceptable to describe a promotion in which all prizes would not be won as a "draw".

We also noted, however, that in the SFS promotion it was not the return of the winning promotional number that determined whether prizes were allocated. The numbers distributed on promotional packs were instead 'converted' into a quantity of entry numbers via the website, which was a secondary route whereby the number of entry numbers received by participants was partly determined by how much personal information they submitted.  In promotions that involved a secondary route, winners were usually selected according to a pre-determined formula, for example '1 in 100' entries.  We noted that the SFS promotion did not follow that format, or that of a 'pre-selected winner' prize draw; it was possible that the winning entry numbers might not be allocated to participants by the automated system and whether all of the advertised prizes were awarded was also a matter partly determined by the profit generated by the promotion.  

We considered that the description of the promotion as a "draw" implied that it would follow the format of a traditional prize draw or, alternatively, that the return of a promotional code, or an otherwise pre-determined ratio of winners to entrants, would dictate the number of prizes that were allocated.  Although we acknowledged that it was acceptable to describe promotions in which not all prizes were awarded as a "draw", we considered that the structure of the competition, where prizes were not allocated randomly, meant that it could not be described as a "draw".  We concluded that it was misleading to describe the promotion as a "draw".

On this point, the ad breached CAP Code clause 7.1 (Truthfulness).

2. Upheld

We noted £25,000,000 was not necessarily available to win. The number of prizes allocated was partly determined by the profit generated by the competition, amongst other factors.  We noted the asterisk next to that amount was intended to link to text on another page of the website, to which consumers were directed via the 'Prizes to Win' button.  We also noted, however, that the text " ... click on the 'Prizes to Win' button" was not clearly related to the asterisked text in order to make consumers aware that the relevant small print could be found via that button; the 'Prizes to Win' page that contained the small print also included two asterisks, which we considered was likely to confuse consumers.  

We considered that the link between the "£25,000,000*" and the small print that stated " ... Not all prizes will be won" was not clear and therefore consumers were likely to believe that £25,000,000 was available to win each month.  We concluded that the promotion misleadingly implied that £25,000,000 would be won each month and, because that was not the case, it was likely to cause unnecessary disappointment.    

On this point, the ad breached CAP Code clauses 7.1 (Truthfulness), 27.4 (Sales promotion rules) and 31.1 (Administration).

3. Upheld

We noted entrants were given different quantities of entry numbers dependent on their level of participation in the promotion.  We also noted, however, that those consumers who did not purchase the promotional packs were always allocated fewer entry codes than those who had. We considered that consumers who entered via the 'no purchase necessary' route should not be disadvantaged and concluded that, because they were, the promotion was not conducted equitably.       

On this point, the ad breached CAP Code clauses 7.1 (Truthfulness), 27.4 (Sales promotion rules), 31.1 (Administration) and 34.1a (Significant conditions of promotions).

Action

The promotion must not appear again in its current form.  We told SFS not to in future describe promotions in which prizes were not allocated at random as "draws", to conduct promotions equitably and to ensure that any significant conditions for promotions were clearly stated at the point of entry.

Adjudication of the ASA Council (Non-broadcast)