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.
The ASA and CAP consider a competition to be a promotion in which prizes are allocated based on skill. Promotions for which no skill or knowledge is necessary should not be described as a competition or otherwise imply that anything but chance is involved. This guidance relates to skill-based competitions only; for advice on running chance-based promotions please see ‘Promotional marketing: prize draws’ and ‘Promotional marketing: instant wins’. Marketers running promotions with prizes should also consult ‘CAP’s Advertising Guidance on the marketing of promotions with prizes’.
Promoters should take legal advice before embarking on any promotions with prizes to ensure that the mechanisms involved do not make them illegal lotteries (see the Gambling Act 2005 for Great Britain and the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985 (as amended) for Northern Ireland). If participants pay to enter, a prize competition must require entrants to exercise skill or judgment or to display knowledge, such that it can reasonably be expected to prevent a “significant proportion” of people from participating or from receiving a prize. Advertisers should contact the Gambling Commission or seek legal advice in relation to what constitutes sufficient skill or judgement. See ‘Promotional marketing: lotteries’ and ‘Promotional marketing: free-entry routes’.
Promoters should consider the guidance in each section below:
Plan ahead and administer the promotion fairly
Include significant conditions in all promotional material
Consider full terms and conditions
Select winners independently
Don’t confuse gifts and prizes
Promoters are responsible for the administration or promotions. Promoters must plan ahead to ensure that they do not give consumers justifiable grounds for complaint. Competitions must be conducted under proper supervision, and promoters must have adequate resources in place to administer any competition as described (Rule 8.14). Promoters must also plan to allow adequate time for each stage of the promotion, including collecting entries, selecting winners, and announcing results (Rule 8.15).
A competition which was cancelled by the promoters because they had not received any suitable entries was considered problematic by the ASA. The promotion did not set out a sufficiently clear entry criteria, or explain what would happen if the promoters did not consider any of the entries suitable. Because the promotion was cancelled on the grounds of criteria which was not clearly set out in the terms and conditions, the promoters had not dealt fairly with participants and had caused unnecessary disappointment (Abellio East Midlands Ltd, 22 September 2021).
Promoters must also be seen to deal fairly and honourably with participants and potential participants and must avoid causing unnecessary disappointment (Rule 8.2). A competition breached the Code because the voting system used in the competition did not comply with the rules which were laid out in the full terms and conditions, and the promoters had not been seen to deal fairly and honourably with participants (Weleda UK Ltd, 02 May 2018).
Although promoters may not be able to pre-empt all situations, it is important to plan ahead, as it is likely to be considered problematic to change terms and conditions part way through the promotion. The Code sets out what promoters should do in circumstances in which promotions cannot be carried out as originally planned due to events which are genuinely both unexpected, and out of the promoter’s control. For guidance on this see ‘Promotional marketing: changing ongoing promotions’.
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. Any information which consumers need to make an informed decision about whether to participate in a competition will be considered significant. Rule 8.17 lists some significant conditions which are likely to apply to all promotions, including how to participate, a closing date, the nature and number of prizes or gifts, and any eligibility or availability restrictions. Promoters should be aware that this list is not exhaustive, and other conditions may also be considered significant, depending on the promotion.
Significant conditions must be included in the initial promotional material. For online advertising this means that they should be included in the main ad, and it will not be acceptable to include these on a separate webpage only. With regards to direct mailings, it is not acceptable to include significant information on the envelope or on the back of return entry slips, because consumers are unlikely to retain these (Kingstown Associates Ltd, 10 August 2011).
For more guidance see ‘Promotional marketing: terms and conditions’.
The full terms and conditions should be clearly available before, or at the time of entry, but do not need to be given as much prominence and may be made available in accompanying literature, providing the ad makes it clear that these apply and how they can be accessed (Rule 8.28). If advertising a competition in-store, for example, it might be acceptable to include full terms and conditions on an in-store leaflet or on a webpage which is signposted in the ad. If advertising a competition online, it is likely to be acceptable for a promoter to include these on a website, linked to from the ad.
These must be retainable, or easily accessible throughout the entire duration of the promotion (Rule 8.28). A complaint about a Facebook ad for a competition was upheld because the link to the full terms and conditions included in the ad did not work (Thomas Cook Retail Ltd, 18 October 2017).
Code rule 8.23 states that terms and conditions should not be too complex for consumers to understand and should only be amended in exceptional circumstances. 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. 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 ‘Promotional marketing: changing ongoing promotions’.
For more guidance see ‘Promotional marketing: terms and conditions’.
If the selection of a winning entry is open to subjective interpretation, there should always be an independent judge (rule 8.26). If there is only one judge, they need to be independent, if there is a panel there should be a least one independent member.
The judge or panel member must be demonstrably independent from the competition’s promoters and intermediaries and from the pool of entrants from which the eventual winner is picked. Paying a fee to someone to act as an independent judge would not in itself be considered to compromise their independence.
Those appointed to act as judges should be competent to judge the competition and their full names must be made available on request. It is the promoter’s responsibility to ensure that they can demonstrate to the ASA that an independent judge was used. The ASA considered a promotion to breach the Code because the promoter was unable to share the details of the independent judge with the ASA when requested. The ASA considered that the promoters should have obtained consent from the judges to release their names prior to running the promotion, to ensure that they could provide these if required (Mondelez UK Ltd, 16 March 2022). See also Rebecca Penny t/a Bridleworks 28 January 2015.
For our full guidance on this issue see ‘Promotional marketing: independent judges and observers’.
Prizes must be awarded as described, or a reasonable equivalent (8.15.1). Withholding prizes is justified only if participants have not met the qualifying criteria set out clearly in the rules of the promotion (8.27). A promotion was considered problematic because the prize was not awarded. The promoter explained that none of the entries were considered suitable, however, because there was no clear entry criteria set out at the beginning of the promotion to inform participants about the type of entry which would be considered, the prize should have been awarded (Abellio East Midlands Ltd, 22 September 2021).
If the prize originally offered cannot be awarded, then a reasonable equivalent must be awarded. For example, if a concert is cancelled, it would be reasonable to arrange tickets for a different date or discuss with the winner an appropriate alternative. For an alternative prize to be considered a reasonable equivalent it must be of roughly equal value to the prize advertised. In 2018 the ASA received a complaint from the winner of a promotion who had won the opportunity to buy a pair of limited-edition trainers because the promoter was unable to supply the shoes, and instead offered a 20% voucher to be used on a future purchase. The ASA considered that this was not a reasonable equivalent (Nike European Operations Netherlands B.V. 09 May 2018).
The terms and conditions should state how prize winners will be informed, and prize-winners should usually receive their prize within 30 days (Rule 8.28.3). Promoters should make all reasonable efforts to contact the winner. Ringing a winner once will not be considered sufficient (Walkers Snacks Ltd 28 August 2013). If, despite their best endeavours, they are not able to contact the winner, promoters do not need to award the prize. Some promoters award the first prize to the runner up.
The difference between a gift (available to all or many) and a prize (awarded to a few) must always be clear to consumers (Rule 8.19). If all or a significant proportion of participants in a promotion are entitled to it, an award should not be described as a prize; and should be described as a "gift", "award", "reward" or similar as long as the context is not misleading (see JDM Marketing Ltd t/a Bright-Life UK, 04 November 2015).
This advice is designed to be read in conjunction with Section 8 (Promotional marketing) of the CAP Code and the other entries in this advice section.