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.
Is a closing date nessesary?
Most promotions are likely to need a closing date. 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. The ad should include enough information about for consumers to know when the promotion ends, in some circumstances this may include a both a time and date. The ASA upheld a complaint about an ad which stated "ASP £1099 - Introductory Offer £549", with small text stating "ASP = After Sale Price", because the ad did not include a closing date which was considered significant information (Furniture Village Ltd, 12 June 2019).
Closing dates may not always be necessary, for example if the offers 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 clsoing date will not disadvantage consumers (8.17.4.c).
The ASA upheld a complaint about multiple competitions advertised on the same website, 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).
Where should a closing date be stated?
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.
Can a closing date be changed?
The Copy Advice team are frequently asked whether or not it is potentially acceptable to amend a closing date of a sales promotion. This answer will depend on the circumstances but in practice, the circumstances where it may be considered acceptable to change a closing date are extremely limited.
When considering whether it would be appropriate to change a closing date, rule 8.17.4.e of the Code essentially creates a two part test. 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.
The ASA has ruled on mulitple 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.e. The ASA upheld complaints about a promotion in which the clsoing date was extended because the promoter did not recieve a certain amount of enrties 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).
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 (sometimes referred to as “force majeure”). 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.
A complaint about a competition to win a three month trip around the world which closed early due to a technical error and subsequently reopoened for one day 5 days after the initial closing date was upheld by the ASA because they considered 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).
If the circumstances were demonstrably outside the promoter’s control, the promoter can then start to consider what the effect of changing the closing date might be. A key thing to remember is that the motivation behind the change ought to be what is fair to participants and potential participants. The rules make clear that the first concern is whether the change would be fair on those people who sought to participate on the original terms.
The ASA has ruled that a closing date extension for a competition meant those who had originally entered were likely to find themselves competing against a larger pool of entrants due to the extended deadline, and would therefore be disadvantaged. The ASA investigated a competition to win a house in which the closing date had been extended because they had not had as many participants as they hoped. 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 complaint was upheld (HMV Competitions, 11 April 2018)
Using the stranded trucks example again, if no one was able to purchase the promotional packs, then not extending the closing date for the promotion would unfairly stop people from participating.
Another example might be where a promotional website crashed because of factors outside the promoters control, thereby stopping people seeking to participate in a prize draw or competition from doing so. We would expect that in these circumstances extending the closing date to allow those who had tried to enter already time to do so successfully may be considered acceptable. This is because not extending the date would be unfair to those who sought to participate on the original terms and the pool of entrants would not be increased unfairly but rather reverted back to what it ought to have been.