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.
Promoters should neither imply consumers have won a prize if they have not nor otherwise imply that consumers are luckier than they are.
One of the most common ways promoters can imply that consumers are luckier than they are is by confusing “prizes” (received by a lucky few) with “gifts” (awarded to all or a significant proportion of entrants). Rule 8.19 underlines the need to differentiate clearly between “gifts” and “prizes” (See also Promotional marketing: Gifts v. Prizes). Promoters should not exaggerate consumers’ chances of winning prizes (8.20), claim that consumers are luckier than they are by, for example, using words like “finalist” or similar (8.21), or falsely claim or imply that consumers have won, will win or will, on doing something, win a prize if that prize does not exist (8.21.1).
Code rule 8.19 states that promoters must not claim that participants have won a prize if they have not. Promoters must not use ambiguous terms or present the opportunity to participate in a promotion in a way which suggests that the recipient has already won.
The ASA has upheld complaints about promotions which misleadingly implied recipients had won when they had not. Ads can mislead in the words they use, for example “Congratulations” (The Hut.com Ltd, 02 October 2019), “Final Stage” or “This is an attempt to contact you in regards to the guaranteed prize that you have been selected to receive” (Popular Prizes, 23 March 2005). Ads can also mislead by presentation, for example by featuring a recipient’s postcode in a list of winning postcodes (The Winners Club Ltd, 19 January 2005) or implying that recipients who had matched certain symbols had won a prize (Abstract Games Ltd, 30 April 2008).
The ASA ruled against a direct mailing for a prize draw which stated “Claim your prize Sweepstakes” on the envelope, and “This is the FINAL NOTIFICATION that will be sent to you regarding your Claim Your Prize Sweepstakes Entry Documents. Don’t miss out!”, in the letter. It also included a document in the style of a voucher which stated “£25 FAST CASH … Complete & Return this Prompt Response Entry Form promptly with your other entry materials in the envelope provided for a chance to win in the random drawing!”. Although the advertiser explained that the name of the prize draw was ‘claim your prize sweepstakes’, the ASA considered that consumers would interpret the claims to mean that they had won a prize in a sweepstake that could now be claimed, and that the ad implied that consumers had already won a prize, that they were luckier than they were and exaggerated their chances of winning (Diabetes Research & Wellness Foundation, 21 March 2018).
Promoters are responsible for the administration of their promotions and should ensure that technical issues do not result in unnecessary disappointment. The ASA upheld complaints about a promotion because multiple participants, including the complainant, had received a personally addressed notification email with the subject “Congratulations, you’re our Mastercard competition WINNER”, but had not won the prize. Although the advertiser explained that this was due to a technical issue, because the promoter had claimed that consumers had won a prize when they had not the ASA considered that they had given consumers justifiable grounds for complaint (The Hut.com Ltd, 02 October 2019).
Another way that promoters may imply that participants are luckier than they are is by blurring the distinction between a prize and a gift. The distinction between prizes and gifts, or equivalent benefits, must always be clear. Ordinarily, consumers may expect an item which is described as a ‘gift’ to be something which is offered to a significant proportion of participants and will expect a ‘prize’ to be something which is only available to a small minority of participants.
Several factors might help determine what constitutes a “significant proportion”, including the relative proportions of potential prize winners and potential gift recipients; the mechanisms by which promoters offer gifts and prizes; and the relative values of the prizes and gifts when compared with each other.
If a promotion offers a gift to a significant proportion and a prize to a minority special care is needed to avoid confusing the two. Promoters must ensure that the promotion does not mislead by using ambiguous or incorrect terminology when referring to gifts or prizes. For example, promoters should not claim that respondents can “win” a “reward” because the terminology is inconsistent and confusing: respondents “win” a “prize” but are “allocated”, “awarded” or “given” a “gift” or “reward”.
Complaints about a direct mailing which implied that a particular customer had been offered a cheque as compensation for an administrative error were upheld by the ASA. The letter stated “Specimen Compensation Cheque enclosed!” and “A cheque for up to £12,500!”, along with other references to the cheque. The ASA considered that this gave the impression that the recipient would receive a cheque which they would simply be able to cash. In reality, the references to a cheque were for a £5 voucher which could be redeemed for a £2 cheque, and participants would be entered into a draw to win £12,500. Because the ad implied that consumers had won a prize when they had not, and misled about what consumers would receive as a gift, the ad was considered misleading (Plantiflor Ltd, 26 July 2017).
Promoters who offer gifts to a significant proportion of participants and the opportunity to participate in a prize draw should avoid misleadingly listing the available prizes and gifts together under one heading. Instead, they should separate them to make it clear that participants will receive an award and have the chance to win a prize. In 2006, the ASA received a complaint about a mailing stating that Damart customers with “more than 750 Gift Points” had been “officially awarded a magnificent gift from our Audio-Visual Collection” of a DVD home cinema, an audio system, or a widescreen TV. The complainant, who had been allocated 760 ‘gift points’, believed that the mailing misleadingly implied recipients had an equal chance of receiving any of the listed items. The ASA considered that information describing how the items were allocated was not prominent enough and that the audio system, which was a gift, should have been clearly distinguishable from the home cinema and TV, which were prizes (Damartex UK Ltd, 17 January 2007).
One promoter was criticised for claiming to have a limited number of awards. Because the promoter allocated awards from an unlimited stock, the ASA considered the promoter had misleadingly implied a specific number of awards and misled respondents into thinking they were luckier than they really were (Abstract Games Ltd, 6 August 2008).
Promoters must ensure that the promotion does not imply that consumers are luckier than they are by using ambiguous or incorrect terminology. They must not use terms such as "finalist" or "final stage" in a way that implies that consumers have progressed, by chance or skill, to an advanced stage of a promotion if they have not (Rule 8.21).
The ASA upheld complaints about an ad which stated “You have been chosen for priority processing”, “If you fail to respond, Diabetes Research & Wellness Foundation cannot be responsible for loss of any prize money that you might have won in the random drawing”, “It would be unthinkable to pass up the chance to win monies that could bring you happiness and make future life much easier” and “Return your Entry Documents today, and when the winner is announced, YOU could be blessed with a financial windfall”. Further, the letter was addressed to the individual recipient and referred to them by name multiple times throughout the body of the letter. The ASA considered that the claims and the use of the recipient’s name would lead the recipient to believe that they were luckier than they were and exaggerated their chances of winning a prize (Diabetes Research & Wellness Foundation, 21 March 2018).
Code rule 8.20 states that ads for prize promotions must not mislead by exaggerating consumers’ chances of winning prizes.
If an ad states that thousands of prizes are available to be won, but only a small amount will actually get awarded, this may mislead consumers by creating an exaggerated impression of their chances of winning. Where promotions use a mechanic which will result in a small number of available prizes being awarded, the ad must include information to clarify to the consumer how likely they are to win, for example by explaining the winner selection mechanism and the number of prizes which will be awarded. The ASA investigated a promotion which stated "WIN A MAGAZINE SUBSCRIPTION. 100 AVAILABLE TO BE WON EVERY DAY*” and considered that consumers would understand that all or at least the majority of those prizes would be won. Because 10% of the total prizes available had been won, and the ad did not include sufficient information to inform consumers of their chances of winning, the ASA considered that the ad exaggerated consumers’ chances of winning prizes (Nestlé UK Ltd, 8 Jan 2020). See also McCain Foods Ltd, 11 July 2018.
As good practice, promoters who advertise their promotion through several channels should ensure that potential entrants who are aware of only one entry route are not misled about the chances of winning. Information about multiple entry routes may be considered significant information if it is likely to be affect a consumer’s understanding of the promotion or their chances of winning. The ASA considered complaints about a promotion which was advertised on multiple social media platforms, in which the winner was chosen by randomly selecting a platform, then selecting an entrant from that platform. Because the information that the promotion was open to entrants across multiple platforms was likely to significantly influence consumers’ understanding of the promotion, and was important so that they could make an informed choice about how, and how many times, to enter, this was considered significant, and should have been made clear in the ad (Hughes TV and Audio Ltd, 1 September 2021). (See Promotional marketing: Prize draws).
This advice is designed to be read in conjunction with the Promotional marketing section of the CAP Code and the other entries in this advice section, particularly Promotional marketing: Gifts v. prizes. Also, promoters might want to seek legal advice.