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.
Social media is a great way for marketers to reach out to consumers in an informal and spontaneous way and with the development of different social media platforms there are more and more ways to host sales promotions.
If you are running a promotion, you are a promoter, and the rules in Section 8: Promotional Marketing apply to promotions wherever they appear and whoever they are run by. Regardless of the platform, promotions must be run fairly and marketing communications for the promotion must not mislead. Key things to remember are:
Include key information about the promotion in the initial ad
Have a signpost to the full terms and conditions
Deal with participants fairly and don’t disappoint unnecessarily
Pick prize draw winners at random
Award the prize
The initial marketing communication should include the information that the consumer needs to make an informed decision as to whether to participate in the promotion. These significant conditions will normally include the closing date, how to enter and any restrictions on entry.
Rule 8.17 lists significant conditions for all sales promotions, including prize draws and provides a handy checklist. The rule states those conditions should be available before purchase or, if no purchase is required, before or at the time of entry or application, and the ASA has generally interpreted this as meaning that significant T&Cs should be stated in the initial marketing material (Ashworth and Parker Ltd t/a END, 30 August 2017).
Rule 8.18 provides an exemption so if the initial ad is severely restricted by time or space it must include as much information about significant conditions as practicable (Rule 8.18). In such online marketing communications it may be considered sufficient to have significant conditions of entry one click away from the social media post which advertises the promotion. Whether or not an ad is considered sufficiently limited by space will be assessed on a case by case basis, and whilst some social media platforms such as twitter, Instagram and facebook may have limited space, the ASA will still expect all significant conditions to be included in the ad, and if this is not possible it is likely that the media is not appropriate to be advertised on that platform.
Rule 8.28 also states that when advertising promotions with prizes, other terms and conditions should be clear before, or at the time of entry and should be easily accessible throughout the promotion.
In 2015, a tweet which advertised a promotion to win a meal at Hard Rock Café was upheld because it did not indicate that terms and conditions would apply, or provide a signpost to where the terms and conditions could be accessed (Hard Rock Café (UK) Ltd, 11 February 2015).
For more information please see 'Promotional marketing: Terms and conditions'.
As well as the significant conditions, the participant must be able to access the full terms and conditions before they enter the promotion. This can be done via a sign post to further information or hyperlink.
Particular care should be taken to ensure terms and conditions are easily accessible when consumers can enter the promotion by sharing or responding to a post instantly.
These terms and conditions must be easily accessed throughout the promotion (for example, on a website) or in a form retainable by entrants (rule 8.28). A complaint about a facebook ad for a promotion was upheld because the link to the full terms and conditions which was included in the ad did not work (Thomas Cook Retail Ltd, 18 October 2017).
The Code sets out information that is likely to be necessary to include in the full terms and conditions. For example, the full terms and conditions should state how and when information about winners and results will be made available.
Promoters are responsible for all aspects and all stages of their promotions and must be seen to deal fairly and honourably with participants and potential participants and must avoid causing unnecessary disappointment.
Promoters must be able to demonstrate that all participants who have entered in line with the conditions are put into the pot. Promoters running promotions where entry is based on sharing a post (for example, “Retweet to win”, “like to win”) or by using a hashtag will need to be able to show they had a reliable method to collect all the entries. Although the ASA is yet to rule on this issue, CAP understands there are concerns regarding available methods of collecting data using this type of medium, to ensure the inclusion of all valid entrants to a prize draw.
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'.
Promoters need to be able to show that the winner was selected at random. This can be done by using a computer process that produces verifiably random results, by an independent person, or under the supervision of an independent person.
Picking names out of a hat is fine as long as someone unconnected with the promotion is there to ensure that it’s done fairly.
For more information please see 'Promotional marketing: Independent judges and observers'.
If you run a promotion offering a prize it must be awarded. If the original prize is unavailable, a reasonable equivalent must be offered (8.15.1) and there can be no cost to claim the prize (8.21.1). Promoters must take adequate steps to alert winners to the fact they have won.
The ASA has ruled that ringing a winner once, is not sufficient (Walkers Snacks Ltd 28 August 2013). In social media, announcing the winner once (for example as a public tweet, post, message or responding on a comments feed) is unlikely to be sufficient. For more information please see 'Promotional marketing: Prize winners'.