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.
Many promotions will have closing dates, whether they are prize promotions, or price promotions. This could be the time or date by which consumers need to enter in order to participate, or the last date that a promotional price is being offered. Code rule 8.17.4 relates to closing dates in promotional marketing.
Closing dates are listed in rule 8.17 as being a significant condition which must be included in marketing communications, where not doing so could be misleading. Most promotions are likely to need a closing date, however, closing dates may not always be necessary, for example if the offer’s duration is limited by availability only, or if it is a loyalty scheme run on an open ended basis (8.17.4.a). If a promoter does not have a set closing date for a promotion, they must be able to demonstrate that the absence of a closing date will not disadvantage consumers (8.17.4.c).
Where a closing date is necessary, all promotional marketing must include enough information for consumers to know when the promotion ends. In some circumstances this may include a both a time and date, particularly if a promotion closes part way through a day, rather than at the end of the day stated. The ASA upheld a complaint about an ad for a price promotion which stated "ASP £1099 - Introductory Offer £549", with small text stating "ASP = After Sale Price", because the ad did not include a closing date (Furniture Village Ltd, 12 June 2019).
Prize promotions are also likely to need closing dates, so that consumers know when they need to enter by. If a promotion does not have a set closing date, the promoter must be able to demonstrate that the absence of a closing date will not disadvantage consumers. The ASA upheld a complaint about multiple competitions advertised online, in which the prizes would only be awarded if a set number of allocated tickets were sold. They considered that, as the competitions could be open for a number of years before all the tickets were sold the lack of clarity about the prospective length of the competition and lack of information about the number of tickets that had been sold meant that the absence of a closing date disadvantaged consumers, by preventing them from making an informed decision about whether or not to purchase a ticket. As the competitions did not have set, individual closing dates, the ASA considered that information which explained how the competition was run and when competitions would theoretically close should have been included (I Can Have It Ltd, 25 July 2018).
The ASA has also considered multiple ads which feature countdown clocks which reset when the clock reaches Zero. An ad which offered free next day delivery and featured a ticking countdown clock that appeared to be counting down to zero was considered misleading because each time the clock reached zero it was automatically reset to repeat the same offer with a new countdown clock. The ASA considered that consumers would understand from the ad that the promotion would close when the countdown clock reached zero, when in reality it did not (Boohoo.com UK Ltd, 6 May 2020).
Code rule 8.17 of the 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.
Significant conditions, including a closing date, should be presented clearly and prominently in the ad. It is unlikely to be acceptable to include a closing date in full terms and conditions which are separate from the ad, without also including it in the ad itself, even if the ad makes it clear that terms and conditions apply.
See Promotional marketing: terms and conditions for more information.
Code rule 8.17.4.e of the Code states that closing dates must not be changed unless:
1. Unavoidable circumstances beyond the control of the promoter make it necessary; and
2. Not to change 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.
When considering whether the circumstances were genuinely out of their control, promoters need to think carefully as to whether they could have foreseen the circumstances or whether they were the result of an unforeseeable external event. The classic example of this would be extreme weather conditions. If unexpected snowfall or flooding stops delivery trucks, meaning that promotional packs for an on-pack prize draw promotion arrive in store shortly before or after the closing date, it might be considered acceptable to extend the closing date to give people the chance to participate.
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).
A competition to win a three month trip around the world breached the Code, because the closing date was amended. The competition closed early due to a technical error and subsequently reopened for one day, 5 days after the initial closing date, however the ASA considered that the change to the closing date caused by reopening the voting had not arisen from unavoidable circumstances beyond the advertiser's control and some participants who had taken part under the original terms and conditions could have been disadvantaged (Weleda UK, 02 May 2018).
In addition to considering whether circumstances are genuinely outside of the advertiser’s control, Code rule 8.17.4.e states that closing dates should not be changed unless not to change it 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 that extending a closing date with the result of increasing the pool of entrants is likely to disadvantage existing participants, because it will reduce their chances of winning. Complaints about a competition to win a house in which the closing date had been extended because the promoter had not had as many participants as they hoped were considered by the ASA. In this case, the extension of the closing date reduced the odds of winning for those who sought to participate by the original closing date, with the winner in fact being someone who participated after the original closing date, and the complaints were upheld (HMV Competitions, 11 April 2018).