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.
Instant wins are prize draws in which consumers either get their winnings at once or know immediately whether they have won. Promoters should ensure that, if they cannot provide the winnings immediately, winners are able to find out what they have won and how to claim and can claim without delay or administrative barriers. Instant-win tickets, prizes, tokens or numbers should be awarded in a fair and random way that has been independently audited (rule 8.25).
If running an on-pack promotion, the terms and conditions that are necessary for the consumer to decide whether to participate should be stated on the outside of the packaging. Marketers need to ensure that on-pack claims do not contradict each other and that the information provided is accurate.
Avoid delays and be clear on the entry process
Promoters should be aware that any delay in consumers finding out whether they have won could breach the Code. The ASA’s long standing position is that “instant win” is likely to mislead if the consumer has to go online to find out if they’ve won, and this is likley to be considered a significant condition (8.17).
In 2015 the ASA ruled against an on-pack promotion which referred to "instant win prizes" on the front but in fact required people to register online and enter their details. Text on the back of the pack suggested that simply entering the code would be sufficient to find out whether an entrant had won a prize, but they had to register and provide personal information before entering the code. This information was considered significant and its omission misleading (Kettle Foods Ltd, 16 September 2015).
If entrants need to go online to find out if they’ve won, claims such as “enter your code online to find out instantly if you’ve won” or “online instant win” are likely to be considered acceptable.
If entrants find out instantly that they have won (for example on opening the pack) and then go online to claim their prize, calling the promotion an “instant win” would be appropriate.
Explain how prizes are allocated
In some cases information about how prizes are awarded will be considered significant information. The ASA upheld a complaint about an ad for Highland Spring because the ad did not make it clear how prizes were allocated or awarded, or manage participant’s expectations of the likelihood of them winning. The ad stated “Enter online "instant" win at www.highlandspring.com/H20omph & enter details, bottle batch code and time stamp", but in reality prizes were allocated to those who entered their details at exactly the same second as was randomly selected and assigned to a prize by a computer. If no one happened to enter their details during this one second winning moment, the prize associated with that moment would not be won. Due to this mechanism it was possible that the number of prizes allocated was significantly lower than the 10,000 advertised. The ASA considered that this information was likely to significantly influence a consumer’s decision to participate in the promotion. Whilst the advertiser explained that the full terms and conditions were available on the website, it was not sufficient for significant conditions to appear only in the terms and conditions, and this information should have been included on the label (Highland Spring Ltd, 11 July 2018).
Don’t exaggerate consumers chances of winning
Code rule 8.20 states that ads for prize promotions must not mislead by exaggerating consumers chances of winning prizes. Some instant win promotions use algorithms which mean that not all available prizes will be awarded. 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. In this kind of promotion, the ad must include information to clarify to the consumer how likely they are to win, for example by giving an explanation of the winner selection mechanism and the number of prizes which will be awarded. The ASA investigated a promotion which advertised “£3 million of prizes available”, but in which only 0.56% of the prizes available were actually awarded. The ASA acknowledged that that the mechanic itself was not necessarily problematic, however, because the likelihood of winning a prize (and therefore the number of prizes that had actually been won) was so extremely low, the overall impression created by the package significantly exaggerated the likelihood that consumers would win the prizes. They ruled that the ads should have given a realistic indication of the chances of winning to ensure that consumers could make an informed decision on whether participation was worthwhile (McCain Foods Ltd, 11 July 2018).
Include all other significant conditions
Code rule 8.17 states that all significant information which could affect a consumer’s decision on whether or not to participate must be included in the ad itself. Please see the AOL Promotional Marketing: Terms and Conditions for more guidance.
Don't have a cost to claim
Promoters (including instant win promoters) must not claim the consumer has already won, will win or will on doing a particular act win a prize (or other equivalent benefit) if the consumer must incur a cost to claim it (rule 8.21.1). The ASA upheld complaints against an ad for a promotion which required consumers to ring a premium rate service to claim an award because, although the cost was stated, rule 8.21.1 prohibits promotions where consumers incur a cost to claim a prize or equivalent benefit (Churchcastle Ltd t/a Spencer & Mayfair, 20 February 2013).
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. Also, promoters might want to seek legal advice.