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.
Our next event, Advice:am2pm, will include a session on Promotional Marketing.
Closing dates are listed in rule 8.17 as being a significant condition which ought to be included in marketing communications where not doing so could be misleading. 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 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 (Terra Plana International Ltd t/a Vivobarefoot, 18 November 2015).
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.