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 Advertising Standards Authority.
Section 8 of the CAP Code states that promoters are responsible for all stages of their promotions, and must plan ahead to ensure that they have adequate resources to administer the promotion before the promotion begins.
Several rules do acknowledge the possibility of events happening which are both unexpected and out of the promoter’s control, and mean that the promotion cannot be carried out as originally planned. These rules set out what a promoter should do to avoid breaching the rules in circumstances where they are unable to carry out the promotion as planned.
As always, the ASA will consider issues on a case-by-case basis, and take into account the specific situations that promoters faced, to establish whether there was a reasonable justification for amending a promotion and whether this was suitably well-managed. If a promotion was poorly planned, the ASA are unlikely to consider this a reasonable justification, and promoters must ensure that they have considered how the promotion will be run, have planned their full terms and conditions, and have sufficient resources in place to run the promotion as planned.
Rule 8.23 states that promoters must only exceptionally supplement or amend conditions of entry for prize promotions. This rule also makes clear that, in such circumstances, promoters must tell participants how to obtain the supplemental or amended rules, and they must contain nothing that could reasonably have influenced consumers against buying or participating.
Promoters must be able to demonstrate how the situation was exceptional, and why this made it necessary for them to amend any conditions. Where they have had to do so, promoters must:
- Take sufficient steps to inform participants on how to obtain the supplemental or amended rules, and
- Ensure that the amended rules contain nothing that could reasonably have influenced consumers’ decisions to buy or participate in the original promotion.
The ASA is likely to expect advertisers to be able to demonstrate how they have informed participants, so it is important to retain evidence of the steps that were taken, and to consider whether the changes could have an impact on a consumer’s decision in advance.
In addition, promoters must always ensure that they deal with participants and potential participants fairly and honourably, must not cause unnecessary disappointment, and should not give consumers justifiable grounds for complaint (Code rules 8.2 and 8.14).
The ASA upheld complaints about a prize promotion which changed the entry route part way though, because this change was likely to have influenced consumers against buying or participating, and because the new method of entry was likely to increase the pool of entries in the prize draw, which was considered unfair to those participants who entered under the original terms (Raffle House Ltd, 26 June 2019). See also (Real hot property, 22 February 2017).
As per rule 8.17.4, closing dates must be included in all ads for promotional marketing, where they apply. Closing dates must not normally be changed, but there may be unavoidable circumstances beyond the control of the promoter which make this necessary.
In such cases, promoters must be able to demonstrate how the circumstances were both unavoidable and outside of their control, and why these circumstances made a change of closing date necessary. Even in these circumstances the date should only be changed if one of the following applies:
- either not changing the date would be unfair to those who sought to participate within the original terms, or
- Those who sought to participate within the original terms will not be disadvantaged by the change.
The ASA has ruled on multiple occasions that not receiving enough competition entries of sufficient quality by the deadline is not an “unavoidable circumstance beyond the advertiser's control” for the purposes of rule 8.17.4.e. The ASA upheld complaints about a promotion in which the closing date was extended because the promoter did not receive a certain amount of entries by the initial closing date. In this case, whilst the ad did state that if all tickets were not sold then the closing date would be extended by seven days, and that this extension would be repeated up to four times if all tickets still had not been sold, the ASA considered that not selling all available tickets did not constitute unavoidable circumstances outside of the advertisers’ control that made it necessary to extend the closing date (KS Competitions Ltd, 2 December 2020). See also (HMV Competitions, 11 April 2018). If an advertiser relies on receiving a certain number of entries in order to award the prize advertised, and they do not receive sufficient entries, promotions are likely to breach the Code. As such promoters should ensure that they can award the prize advertised or a reasonable equivalent before the promotion begins.
See Promotional marketing: Closing dates for further guidance.
Rule 8.15.1 states that promoters must award the prizes as described in their marketing communications or reasonable equivalents, normally within 30 days. Prizes should only be withheld if participants have not met the qualifying criteria set out clearly in the rules of the promotion (Code rule 8.27).
The ASA considered complaints about a promotion which was cancelled on the grounds that all the entries received were poor quality, and could not be implemented in line with the promotional goals. The ASA considered that the fact that the promoter had not identified any submissions which they considered would be suitable to be implemented would not have prevented them from awarding the prize to the entrant with the idea chosen to be the best by the judges, and also noted that the terms and conditions did not set out what would happen if none of the ideas could be implemented. The ASA considered that by cancelling the competition and not awarding the prize, the promoter had not dealt fairly with participants and had caused unnecessary disappointment (Abellio East Midlands Ltd t/a East Midlands Railway, 22 Sept 2021). This ruling shows that including a statement that the promoter has the right to cancel a promotion at any time does not mean that the promoter can do so without breaching the rules.
If the prize originally offered cannot be awarded then promoters must still award a reasonable equivalent. If a concert is cancelled, for example, 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; offering an alternative prize of significantly lower value to the prize advertised is unlikely to be considered a reasonable equivalent. 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). Similarly, complaints about a promotion which offered 70% of the value of ticket sales instead of the advertised prize, if all the tickets were not sold, were upheld because this was not considered a reasonable equivalent. The ASA considered that a promotion which relied on generating a sufficient number of ticket sales, such that 70% of those sales would be equivalent value to the price of the prize, was likely to breach the Code if they failed to sell the requisite number of tickets (KS Competitions Ltd, 02 December 2020).
Promoters must be able to show that they have made a reasonable estimate of demand for a promotional item. If, having a made a reasonable estimate of demand, promoters know they will not be able to meet it, they should provide sufficient information, presented clearly and in a timely fashion, to allow consumers to make an informed decision on whether or not to participate. See our guidance on Promotional marketing: Availability for guidance on making a reasonable estimate.
Rule 8.11 states that if promoters have made a reasonable estimate, and initially expect to be able to meet that demand, but later find that they cannot due to an unexpectedly high response or factors outside of their control, they must ensure timely communication with consumers and, in the case of likely detriment, offer a refund or reasonable substitute.
The ASA part upheld a complaint about an ad for a promotion on Lidl Prosecco because, whilst Lidl did demonstrate that they had made a reasonable estimate of demand, they were unable to supply enough units to meet demand due to an unexpectedly high response and breached the Code because they did not effectively communicate this information to consumers in a timely manner (Lidl UK GmbH, 04 April 2018).
The ASA received multiple complaints about a cyber-Monday promotion offering consumers a free mobile phone handset when signing up to a contract, because system issues caused by an unexpectedly high response meant that the promoter could not fulfil all orders. Whilst the advertiser provided a press statement to this effect, the ASA noted that this was released after the promotional period had ended, and had been provided with no evidence to show that customers had been notified during the period itself. Because the promoter did not ensure relevant timely communication with applicants and consumers under the circumstances, the ASA concluded that the ad breached the Code (The Carphone Warehouse Ltd t/a Mobiles.co.uk, 20 March 2019).
Merely including a statement along the lines of “subject to availability” is not enough to relieve promoters of their obligations to avoid disappointing participants because of availability issues (rule 8.9).
See Promotional marketing: Availability for further guidance.