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 Advice:am session is on Promotional Marketing on 20th June. Find out more here.
Promotions provide an incentive for the consumer to engage with a brand by using a range of added direct or indirect benefits, usually on a temporary basis, to make the brand more attractive. This means promotional marketing covers a wide range of techniques from simple ‘buy one get one free’ offers and discounts, to prize promotions including instant wins, prize draws and competitions.
The Code applies to all stages of the promotion, not just the initial marketing and applies anywhere that a promotion appears. The specific rules which are relevant will depend on the kind of promotion being run but the core principles are the same whether it’s a discount voucher offer or a long term loyalty scheme.
This guidance gives a brief summary of the key points and where to get more information.
Run promotions fairly and be clear on responsibilities
The “promoter” is whoever is running the promotion. Some promotions, those in which more than one party benefits (for example, in terms of branding, promotion or revenue) are joint promotions or co-promotions. In joint promotions or co-promotions all parties are considered responsible and will be named by the ASA in the event of a complaint. A company that provides the prizes or gifts for a promotion is not necessarily a joint promoter.
Promoters are responsible for all aspects and all stages of their promotions (Rule 8.1). This includes ensuring agencies, intermediaries and staff are able to deliver on the promotion (8.14). Promoters must be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment (Rule 8.2).
Promoters need to take care that appropriate measures are in place to ensure that the structure, or mechanic, of their promotion is not open to abuse. Allowing abuse is likely to cause consumers who have participated fairly to be disadvantaged. For more information see 'Promotional marketing: Abuse'.
Consider the suitability of the promotion and be responsible
Rules 8.3 to 8.7 deal with the protection of consumers, safety and suitability of promotions and promotional items. No promotion or promotional item should cause serious or widespread offence to consumers. Promoters should also take care to ensure the promotion and any promotional goods are suitable for the target audience.
Special care must be exercised when using or promoting products intended for adults (such as alcohol, medicines, condoms, rolling papers, e-cigarettes) to ensure that they do not fall into the hands of children. Promotions that require a purchase to participate and include a direct exhortation to make a purchase must not be addressed to or targeted at children. For guidance on the specific rules covering promotions to children, please see ‘Children: Promotional marketing’ and ‘Food: Children’.
See also 'Alcohol: Promotional marketing'.
Be clear on the difference between a gift and a prize
Promoters must not confuse gifts and prizes. Prizes must be awarded. Please see ‘Promotional marketing: Gifts v. prizes’ for specific guidance on the difference between the two.
Meet the requirements regarding availability
When it comes to marketing regarding promotional items, phrases like, “subject to availability” are insufficient to meet the obligations under the Code. Please see ‘Promotional marketing: Availability’ for information on how apply rules 8.9 – 8.13.
Be aware of the specific rules for “free” offers
A product must not be described as “free” if the consumer has to pay anything other than the unavoidable cost of responding and collecting or paying for its delivery.
Provide terms conditions information at the right time
All promotional marketing should clearly include all significant T&C’s upfront in initial marketing material. T&C’s are considered significant if they are likely to affect a consumers understanding of the promotion and their decision on whether or not to participate. Rule 8.17 lists information that is likely to be considered material and should be included in initial marketing communications for any kind of promotion. Please see ‘Promotional marketing: Terms and conditions’ for detailed advice on T&Cs.
Please see ‘Promotional marketing: Prize draws in social media’ for information on how to deal with T&Cs where space is limited.
Rule 8.28 sets out information that is likely to be necessary to include in the full terms and conditions for prize promotions as well as the required information about winners (see ‘Promotional marketing: Prize winners’). These should be accessible throughout the whole duration of the promotion.
Prize draw winners must be chosen in accordance with the laws of chance and if this is not done by a verifiably random computer process, there must been an independent observer. Competitions (which involve an element of skill) must have an independent judge. Please see ‘Promotional marketing: Independent judges and observers’.
Prizes must be awarded as described or a reasonable equivalent and advertisers must either publish or make available information that indicates that a valid award took place. See Promotional marketing: Prize winners.
Plan ahead to avoid the risks of changing terms
Code rule 8.23 states that rules must only exceptionally be amended or supplemented with extra rules and there are very few circumstances when changing the T&Cs of a promotion might be considered acceptable. This is particularly the case with closing dates. Please see ‘Promotional marketing: Closing dates’ and Promotional marketing: Terms and Conditions.
The ASA has ruled that creating and enforcing T&Cs retrospectively is unacceptable - even if the aim is to combat abuse. Please see 'Promotional marketing: Abuse'.
Keep track of changes to the Code
The most recent version of Section 8 came into force on 1 May 2015. For information regarding the specific changes and how and why they were made, please read the Regulatory Statement (Section 8 changed its title from 'Sales promotions' to 'Promotional marketing' in 2016).
In April 2019, Code rule 8.28.5, which concerns the publication of winners was amended to reflect the GDPR’s. Read the rule and guidance on the rule for more information.
AdviceOnline articles may refer to rulings from before 1 May 2015 where the ruling refers to a rule which is unchanged or a where the rationale decision is still relevant in principle. If you’re in any doubt about whether a ruling would be decided in the same way now, please contact Copy Advice.
Be aware of all the available guidance
Alcohol: Promotional marketing
Children: Promotional marketing
Promotional marketing: Abuse
Promotional marketing: Availability
Promotional marketing: Charity-linked promotions
Promotional marketing: Closing dates
Promotional marketing: Competitions
Promotional marketing: Free
Promotional marketing: Free trials
Promotional marketing: Free-entry routes
Promotional marketing: Front-page flashes
Promotional marketing: Gifts v. prizes
Promotional marketing: Implying recipients are luckier than they are
Promotional marketing: Independent judges and observers
Promotional marketing: Instant wins
Promotional marketing: Lotteries
Promotional marketing: Mystery gifts
Promotional marketing: ‘Win a house’ promotions
Promotional marketing: Prize draws
Promotional marketing: Prize draws in social media
Promotional marketing: Prize winners
Promotional marketing: Scratchcards
Promotional marketing: Terms and Conditions (T&Cs)
Travel marketing: Travel promotions
This advice is designed to be read in conjunction with the Promotional marketing Section of the CAP Code, the CAP Advertising Guidance on Promotions with prizes and the other entries in this advice section. Also, promoters might want to seek legal advice.