Background

Summary of Council decision:

Four issues were investigated, of which three were Upheld and one was Not upheld.

Ad description

Two promotions run by Superdrug Stores plc:

a. The first promotion, viewed on the website www.superdrug.com, offered the chance to win tickets to the Buddy Holly show. Text stated "Competition expires on 23:59 Tuesday 27th August 2013 - For your chance to win a VIP trip to Buddy Holly for you and 3 friends including a backstage tour, the chance to meet the star of Buddy Holly and an overnight stay. Plus, we've got 10 pairs of Buddy Holly tickets for lucky runner ups [sic]! Simply complete the form and make sure your Beautycard is registered by 23:59 27th August 2013 to enter!". A description of the prizes referred to the Buddy Holly show's venue as being "the Duchess Theatre, London".

b. The second promotion, for a VIP tour of the Hollyoaks set, required consumers to purchase one or more Impulse fragrance products in-store using a registered Superdrug Beautycard, at which point they were automatically entered into the draw. The terms and conditions were available on the website www.superdrug.com.

Issue

One complainant challenged whether promotion (a) had been properly administered, because:

1. they understood that the Buddy Holly show was no longer running at the Duchess Theatre and therefore would not be available as a prize;

2. a list of only ten winners was given, when 11 prizes had been specified; and

3. only the first names and locations of the prize winners were disclosed.

4. Another complainant challenged whether promotion (b) had been properly administered, because only the first name and location of the prize winner was disclosed.

Response

1. Superdrug Stores plc said they employed an agency to source third-party providers of promotional offers for customers who had signed up to their Beautycard loyalty scheme. They said the relevant provider was responsible for awarding the prizes for the Buddy Holly prize draw. However, they had learned, after the draw had opened, that the provider had made a mistake and that the Buddy Holly show was on tour around the UK rather than continuously running at the Duchess Theatre in London. They said they had agreed with the provider that the winners would be given the option of selecting the theatre at which they wished to see the show as a replacement prize, and that the first place winner would receive all of the additional elements of that prize, such as a hotel stay and dinner, in that location.

Superdrug Stores said they had contacted all 11 winners by telephone and had explained the mistake, asking them where they wanted to see the show. They had then passed those details on to the third-party provider, who would liaise with the winners to arrange the prize fulfilment. They supplied a list of the dates and locations that nine of the winners had chosen, commenting that one of the other winners had already been to see the show at their local theatre and one other was yet to confirm their preferred date. They said in each case the tickets were held at the box office for collection by the winners, rather than being sent to their home address.

2. Superdrug Stores said 11 prizes had been offered to winners as outlined at point 1 above and they assumed that only ten names had been given to the complainant due to human error. They confirmed the name of the eleventh winner and supplied e-mails from the promotion provider to ten of the winners confirming the dates and locations for the theatre show selected. They noted that the eleventh winner was yet to confirm their preferred date.

3. & 4. Superdrug Stores explained that their policy was to disclose only the first name and the town of the winners of their prize promotions. They considered that to provide full names could result in the winner being readily identifiable, including in online media, which they said would constitute a breach of the Data Protection Act 1998 (the Act). They noted that the CAP Code stipulated that prize winners must not be compromised by the publication of excessive personal information and said in their view their approach was sufficient to satisfy the requirements of the Code and the Act.

They acknowledged that the terms and conditions for each promotion stated that a list of the winners' "names" and counties would be made available on request for a period of time after the closing date. They stated, however, that because the terms and conditions did not refer to the winners' "full names", they would be in breach of the Act if they were to release that information. They further said processing the winners' data in that way would be contrary to their own privacy policy, which stated that they would not share personal data with third parties. They commented that the requirement to provide full names was unnecessary, excessive and contrary to the Act and they saw no reason why a member of the public would need that information. They said they would clarify their terms and conditions in future to make clear that only the first names of winners would be disclosed.

Assessment

1. Not upheld

The ASA considered that, because human error had prevented Superdrug Stores from awarding the prizes as set out in the advertising for the promotion, they should have provided reasonable equivalents. We noted Superdrug Stores’ statement that the winners had each been offered tickets for the Buddy Holly show at a theatre of their choosing, and that the first place winner had been awarded all other elements of the prize originally specified, and were satisfied that that substitution would constitute prizes of reasonable equivalence. We therefore concluded that the promotion had been properly administered in respect of the prizes offered and had not breached the Code on that point.

On that point, we investigated promotion (a) under CAP Code (Edition 12) rules  8.1 8.1 Promoters are responsible for all aspects and all stages of their promotions.  and  8.2 8.2 Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment.  (Sales promotions) and  8.14 8.14 Promoters must ensure that their promotions are conducted under proper supervision and make adequate resources available to administer them. Promoters, agencies and intermediaries should not give consumers justifiable grounds for complaint.  and  8.15.1 8.15.1 Promoters must award the prizes as described in their marketing communications or reasonable equivalents, normally within 30 days.  (Sales promotions - administration) but did not find it in breach.

2. Upheld

We considered that Superdrug Stores needed to provide documentation showing that prizes had been awarded, or were in the process of being awarded, to 11 participants. We noted that nine of the e-mails provided by Superdrug Stores were sent by the promotion provider to named winners of the promotion and included details of the prize awarded. We were satisfied that nine prizes had been awarded in relation to the promotion. However, the tenth e-mail appeared to have been sent to a name not featured on the list of prize winners. Furthermore, whilst we understood that the eleventh winner was yet to confirm the date on which they wanted to see the show, we considered that Superdrug Stores needed to provide evidence showing that the prize had been offered to that person.

In the absence of appropriate documentation, we concluded that Superdrug Stores had not demonstrated that there were 11 prize winners and, therefore, had not demonstrated that the promotion had been properly administered.

On that point, promotion (a) breached CAP Code (Edition 12) rules  8.1 8.1 Promoters are responsible for all aspects and all stages of their promotions.  and  8.2 8.2 Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment.  (Sales promotions) and  8.14 8.14 Promoters must ensure that their promotions are conducted under proper supervision and make adequate resources available to administer them. Promoters, agencies and intermediaries should not give consumers justifiable grounds for complaint.  (Sales promotions - administration).

3. & 4. Upheld

The CAP Code required promoters to publish or make available on request the name and county of major prize winners. We noted that Superdrug Stores’ policy was to make available only the first names of prize winners and the towns in which they lived. We considered that, in the interests of transparency and so as to provide public accountability, the full names of those winners should have been provided. Although we acknowledged Superdrug Stores’ concern that taking such action would constitute a breach of the Data Protection Act 1998 because it may result in the identification of the prize winners, we understood that the Act would not prohibit a promoter from disclosing the full name and county of major prize winners, in accordance with the Code, provided that the promoter had obtained prior consent for that disclosure.

We noted that the terms and conditions for the two promotions stated that the winners' "names" and counties would be made available upon enquiry after each promotion had ended. We considered that consumers were likely to understand that to denote their full names, and therefore that Superdrug Stores had obtained appropriate consent from participants at the time that they entered the promotions. We also noted that their privacy policy made clear that information would be collected from participants in promotions and used to administer those promotions, and therefore did not appear to present any barrier to the disclosure of winners' full names.

Regardless of how in practice they chose to word their privacy policy and their terms and conditions, we considered that Superdrug Stores needed to take adequate steps to ensure that their promotions were administered in such a way as to comply with the CAP Code, as well as with all relevant legislation. Because they had not done so, and in view of our understanding that their responsibilities under the Data Protection Act 1998 were not incompatible with the requirement to disclose the full names (and counties) of major prize winners, we concluded that the promotions had not been properly administered in that respect and were in breach of the Code.

On those points, the promotions breached CAP Code (Edition 12) rules  8.1 8.1 Promoters are responsible for all aspects and all stages of their promotions.  (Sales promotions) and  8.28.5 8.28.5 Promoters must either publish or make available on request the name and county of major prizewinners and, if applicable, their winning entries except in the limited circumstances where promoters are subject to a legal requirement never to publish such information. Promoters must obtain consent to such publicity from all competition entrants at the time of entry.  Prizewinners must not be compromised by the publication of excessive personal information  (Sales promotions - prize promotions).

Action

The promotions must not be run again in their current form. We told Superdrug Stores plc to ensure in future promotions that they were able, if asked, to provide documentation demonstrating the awarding of prizes, and to publish or make available the full names and counties of major prize winners.

CAP Code (Edition 12)

8.1     8.14     8.15.1     8.2     8.28.5    


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