ASA Adjudication on The Blue Elephant Ltd

Ad

An online competition, to win a holiday to Thailand, stated "BLUE ELEPHANT Cocktail Competition 2009 Create your own unique cocktail with 'Mekhong' the original Thai spirit to win a Royal Orchid Holiday package to Thailand ... PRIZE: THE WINNER - One Royal Orchid Holiday package to Thailand in a luxury 5 star hotel. - Complimentary one course cooking class at Blue Elephant Cooking School. - Complimentary dinner for two at the Blue Elephant in Bangkok ... RULES: All the recipes that comply with the conditions of the competition are to be registered into the contest ... The finals will be held at Blue Elephant restaurant ...".

Issue

The complainant, who won first prize, thought the competition was misleading, because it did not make clear the significant terms and conditions attached to the prize.

CAP Code (Edition 11)

Response

The Blue Elephant stated that the Royal Orchid holiday package (consisting of a return flight and hotel accommodation) and the cooking class were all for one person, whereas dinner at the Blue Elephant restaurant in Bangkok was for two people.  In their view, it was clear that the prize was a package holiday for one person.  However, they accepted that the online competition details referred to "dinner for two" at their Bangkok restaurant; they believed that might have implied the entire package was for two people.  They explained that, when the winner expressed dissatisfaction with the prize she had won, they negotiated with her and eventually she accepted the offer of them paying for her flight and taxes, a second flight for her guest and a cookery class for two, whereas she had to pay for the taxes on the second flight, hotel accommodation in Bangkok and transfers.  They believed the winner was now satisfied with the outcome.

Assessment

Upheld

The ASA noted the complainant believed she had won a holiday package for two people plus a cooking class and dinner at the Blue Elephant restaurant in Bangkok for two, because the competition details said the complimentary dinner was "for two" and there were no terms and conditions stating the holiday package was for only one person.  However, when she tried to arrange to receive her prize she found out that the only element of the prize that was for two people was dinner at the Blue Elephant restaurant in Bangkok.  She was also told at that point that she would have to pay all airport taxes and surcharges for the flight, and the transfer from the airport in Phuket to the hotel, 100 km away from Phuket, was not included.  In addition, she was told she would have to bear the cost of travelling from her hotel in Phuket to dinner at the Blue Elephant restaurant in Bangkok, 500 miles away, and the only dates she could take the holiday were May to September 2009.

We noted the online competition details referred to "one" holiday package, a "cooking class" and "dinner for two".  We considered it was sufficiently clear to entrants that the holiday package and cookery class were for one person and the dinner was for two people.

However, we noted the Code stated that promotions should specify clearly, before or at the time of entry, how to participate, including significant conditions and costs, and any other major factors reasonably likely to influence consumers' decisions or understanding about the promotion.  It also stipulated that participants should be able to retain the conditions or have easy access to them throughout the promotion, and ads for promotions should specify all the significant conditions that were applicable.

We noted that, in order to claim the full prize, the winner had to pay for airport taxes and surcharges, airport transfers and travel from the hotel in Phuket to Bangkok for the meal; we considered those were significant costs.  We also considered that the limit on the dates of the holiday, May to September 2009, was a significant condition.  The online competition details made no mention of any of those conditions or costs, and we also understood that no terms and conditions were available for entrants to access at the time of entering the competition, or at any subsequent point.  Indeed, we understood that no terms and conditions had been officially drawn up, because The Blue Elephant had not provided us with any despite our request for a copy.  We considered it was unacceptable that the first time the significant conditions and costs were made clear was at the point of the winner trying to claim her prize.

We acknowledged that, following the winner expressing her dissatisfaction, the promoters had eventually offered her a prize which was more in line with her expectations.  However, irrespective of whether the winner was now happy with the prize she had been offered (which was not the same as the prize she originally won), we concluded that the competition breached the Code for misleading entrants and causing unnecessary disappointment to the winner, by failing to make clear the significant costs the prize winner had to pay and the restriction on the dates the winner could take the holiday.

The competition breached CAP Code clauses 7.1 and 7.2 (Truthfulness), 27.4 (Sales promotion rules - Introduction) and 34.1a (Significant conditions for promotions) but did not breach clause 34.1e (Significant conditions for promotions).

Action

The ad must not appear again in its current form.  We told The Blue Elephant to ensure that future advertising for competitions specified all significant terms and conditions of entry and of claiming the prize.  We also told them that, if they ran competitions in future, entrants needed to be able to retain those terms and conditions, or have easy access to them, throughout the course of the competition.  We advised them to seek advice from the CAP Copy Advice team before running future competitions.

Adjudication of the ASA Council (Non-broadcast)