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.
Promoters should neither imply consumers have won if they have not nor otherwise imply consumers are luckier than they are. One of the most common ways promoters do that 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 ‘Sales Promotion: Gifts v. Prizes’). Rule 8.20 states that promoters should not overstate consumers’ chances of winning prizes. Rule 8.21 states that promoters should not claim that consumers are luckier than they are by, for example, using words like “finalist” or similar. And rule 8.21.1 states that promoters should not falsely claim or imply that consumers have won, will win or will, on doing something, win a prize if that prize does not exist.
The ASA has upheld many complaints that promoters have misleadingly implied recipients had won when they had not. Some mislead in the words they use (for example “Congratulations” (Multiplex Media Ltd, 6 October 2004, and Richmond Enterprises, 9 March 2005), “winner” (UK Winners’ Claim Service, 27 October 2004), “Congratulations, you are a Level 4 winner” (Call Alliance Services Hotline, 20 August 2003), “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)). Some promoters, however, mislead by presentation (for example by featuring the recipient’s postcode in the “winning postcode box” headed “if your postcode appears [here] you have definitely won one of the prizes below” (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; Morgan Import 1964 Ltd, 25 October 2006, and Mediaprom Ltd, 19 April 2006).
In 2008, the ASA upheld complaints about a mailing that included a letter that stated “Certified Letter … Property guaranteed upon valid reply: 2008 Land Rover Defender 90 Station Wagon or other property option: maximum property recipient may accept a certified cheque for £21,380.00 instead of vehicle. Be it known that the person identified in these several documents shall, upon a valid reply and subsequent designation as the maximum property recipient, receive a 2008 Land Rover Defender 90 Station Wagon or cash value (£21,380) …”. The promoters required an “acquisition fee” and the Terms and Conditions stated “Each individual who returns the required acquisition fee … will be purchasing and will receive one of the following items …”. The mailing then listed the vehicle, five Sony Mini DV, diamond stud earrings and Apple iPod remotes. After the promoter did not respond to its enquiries, the ASA concluded that the mailing implied the recipient would receive a Land Rover (International Property Disposition of Radstock, 6 August 2008).
Sometimes promoters use techniques such as emphasizing certain parts of a claim and underplaying others. For example “you will definitely win …” (in a large, prominent font) “… if you have and return the winning entry” (in a smaller, less prominent font). Promoters should give equal prominence to both the primary claim and the secondary part of the sentence and should ensure that the presentation of their promotions are unlikely to mislead readers who might read in isolation the primary claim.
Other ways promoters confuse recipients about what they will receive is by blurring the distinction between a prize, usually offered to few respondents, and a gift, usually offered to all or most respondents (Abstract Games Ltd, 30 April 2008; Procter & Gamble UK, 31 May 2006, and Freemantle O’Connor & Associates, 22 February 2006). One promoter claimed “… Congratulations … I can now personally guarantee that you will receive one of the following: BMW Mini … or £10,000 House Makeover or £10,000 cash… £2500 Advantage Award – £2500 cash … Guaranteed value £2500+ …”. The ASA received complaints that the mailing misleadingly implied recipients were luckier than they were by listing high-value prizes with lower-value awards and implying all items would exceed £2,500 in value. Not surprisingly, most respondents received the “£2500 Advantage Award” which consisted of various vouchers including five separate holiday vouchers. The promoter used words such as “congratulations”, obfuscated between higher-value “prizes” and lower-value “awards” and did not clarify the nature of the gift (UK Incentives & Promotions Ltd, 7 November 2007). Similarly, in 2006, the ASA ruled that a mailing claiming that “A PACKAGE WITH A STATED ESTIMATED VALUE OF £979.95” was “AWAITING DELIVERY” was misleading because it did not make clear that the package contained vouchers with an estimated value of £979.95 and readers might infer that the package contained a large cash prize (International Postal Services Ltd, 25 November 2006).
One promoter was cricitised for claiming to have a limited number, albeit a large one, 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).
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 (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.