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.
Social media is a great way for promoters to reach out to consumers in an informal way, and with the development of different social media platforms, there are more and more different ways to run promotions.
The rules in Section 8: Promotional Marketing apply to promotions wherever they appear and whoever they are run by, including influencers and brands. Promoters are responsible for all stages of the promotion, and regardless of the platform, promotions must be run fairly and marketing communications for the promotion must not mislead.
Include all significant conditions in the initial ad
Include a signpost to the full terms and conditions
Don’t change the terms and conditions during the promotion Include all valid entries
Deal with participants fairly and don’t disappoint unnecessarily
Select prize draw winners at random
Award the prize and be able to demonstrate that you have done so
Rule 8.17 of the CAP Code states that all marketing communications, or other material referring to promotions, must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. The ASA has generally interpreted this as meaning that these significant conditions should be stated in the initial marketing material.
Any information which consumers need to make an informed decision about whether to participate in a promotion or not will be considered significant. Whilst significant conditions may differ between promotions, Rule 8.17 lists significant conditions which are likely to apply to all promotions, including how to participate, a closing date, the nature and number of prizes or gifts, and any eligibility or availability restrictions. A complaint about a Facebook post for a prize draw offering a caravan as a prize was upheld by the ASA because it did not make the closing date clear, or provide details about the nature of the prize (Adwick Caravans Ltd, 18 March 2020).
Any information which is likely to affect consumers’ understanding of a particular promotion will be considered significant. The ASA considered complaints about a promotion which was advertised on multiple 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).
Rule 8.18 states that, where marketing communications are significantly limited by time or space, they must include as much information about the significant conditions as practicable in the ad, and must direct consumers clearly to an easily-accessible alternative source where all the significant conditions for the promotion are prominently stated. Participants should be able to retain those conditions or easily access them throughout the promotion. Whether or not an ad is considered sufficiently limited by space will be assessed on a case- by-case basis. It is important to note that the ASA is unlikely to consider social media posts sufficiently limited by time or space, and is likely to expect all significant conditions to be included in promotional material posted on social media. In 2015, a tweet which advertised a promotion to win a meal at Hard Rock Café was upheld because the tweets did not communicate the significant conditions which applied to the promotion (Hard Rock Café (UK) Ltd, 11 February 2015).
For more information, please see 'Promotional marketing: Terms and conditions'.
When advertising promotions with prizes, all other terms and conditions should be made clear before, or at the time of entry, and these should be easily accessible throughout the promotion. This can be done via a signpost to further information, such as a link to the full terms on a website, providing those terms and conditions can be accessed throughout the promotional period. A complaint about Instagram ads for a promotion was upheld because the ads did not reference or provide links to the terms and conditions at the time they were seen by the complainants, which meant that they were unable to retain or easily access the terms and conditions prior to entering the prize draws (21 Three Clothing Company Ltd t/a PrettyLittleThing, 16 May 2018). 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.
Rule 8.28 sets out information that is likely to be necessary to include in the full terms and conditions, which includes information about how and when winners will be notified.
Rule 8.23 states that conditions of entry for prize promotions must only be amended in exceptional circumstances, and sets out what promoters must do in these circumstances.
If exceptional circumstances do make it necessary to make changes to promotional terms, these changes must not include anything which could have originally influenced someone’s decision to participate, and promoters must tell participants how to obtain the supplemental or amended rules.
The ASA has ruled that creating and enforcing T&Cs retrospectively is unacceptable - even if the aim is to combat abuse.
Closing dates in particular should not be changed unless there are unavoidable reasons outside of your control, and not changing the date would be unfair to those who sought to participate within the original terms, or those participants would not be disadvantaged by the change.
Promoters are responsible for all aspects and all stages of their promotions. Rule 8.2 states that promoters must be seen to deal fairly and honourably with participants and potential participants, and must avoid causing unnecessary disappointment.
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 must also make sure that their promotions are conducted under proper supervision and have adequate resources available to administer them. When it comes to collating entries and selecting winners, promoters must plan ahead and make sure they have a reliable method and adequate resources in place to enable them to include all valid entries.
Where entry into a prize draw is based on participants carrying out multiple actions, such as liking or commenting on a post, tagging a friend to a post, following particular social media accounts or sharing a post, promoters must make sure they can accurately track all entrants and include all participants who meet the entry criteria when selecting the winner.
The ASA recently considered complaints about a prize draw advertised by an influencer on their Instagram account. To enter, winners were required to like an Instagram post, tag a friend, and subscribe to the influencer’s YouTube channel and two Instagram accounts. Complainants challenged whether the promotion, which received over a million ‘likes’, and almost three millions comments, was administered fairly. The promoter said the response to the promotion was overwhelming and unexpected; however, the ASA considered that, because the influencer had over five million followers, she should have anticipated a high level of response to a prize draw worth £8,000. Because the ASA had not seen evidence to show how the likely response to the promotion had been estimated, or how they had planned to administer the promotion and collate all entries, the ASA concluded that the promotion was not administered fairly and breached the CAP Code (Molly-Mae Hague, 3 March 2021).
If promoters offer bonus entries for specific actions, they must be able to demonstrate that those who meet the requirements for the bonus entry increase their chances of winning the prize as a result. The ASA received a complaint about a promotion on Instagram, which allowed entrants to qualify for a bonus entry by sharing the promotional post as an Instagram Story. The method of winner selection demonstrated that it would not have been possible for the advertiser to have awarded any of the eligible entrants’ bonus entries before selecting a prize winner. Because those who had met the criteria for a bonus entry would not increase their chances of winning the prize by doing so, the complaint was upheld (Bellatricks Ltd, 01 September 2021).
Promoters should bear in mind that, if it is not possible to track entries made via a particular entry method, this entry method should not be used. Complaints about a promotion run by PrettyLittleThing on Instagram, which allowed entrants to qualify for a bonus entry by sharing the promotional post as an Instagram Story, were upheld by the ASA because the promoter was unable to assign those who had fulfilled that requirement an additional entry. The ASA also noted that if the post was shared as an Instagram Story from a private account, it would not be possible for PrettyLittleThing to identify whether or not the entrant had qualified for a bonus entry (PrettyLittleThing.com Ltd, 01 September 2021).
The ASA is also likely to expect promoters to be able to independently verify that the conditions for entry were met without requesting that information from a competition entrant (PrettyLittleThing.com Ltd, 01 September 2021).
Rule 8.24 states that promoters of prize draws must ensure that prizes are awarded in accordance with the laws of chance. This can be done by using a computer process that produces verifiably random results, or, if a computer process is not used, by an independent person, or under the supervision of an independent person. Promoters must have evidence to demonstrate that the winner was selected randomly.
Picking names out of a hat is likely to be fine as long as someone unconnected with the promotion is there to ensure that it’s done fairly, and the promoter has evidence to demonstrate that this is the case. Complaints about a promotion in which the prize winner was selected by a member of staff scrolling through the post’s comments and selecting one manually were upheld by the ASA, because a member of staff was not considered an independent person (Bellatricks Ltd, 01 September 2021).
The ASA also upheld complaints about a prize draw because, although the promoter explained that they had randomly selected a shortlist of 100 participants from a hat, and that they selected the final winner randomly from this shortlist, they provided the ASA with no evidence to demonstrate that this was the case (Molly-Mae Hague, 3 March 2021).
For more information please see 'Promotional marketing: Independent judges and observers'.
Promoters must award the prizes as described in the promotional marketing. If the original prize cannot be awarded, a reasonable equivalent must be offered (rule 8.15.1) and there can be no cost to claim the prize (rule 8.21.1). A complaint about a promotion on YouTube, which asked viewers to like and subscribe to the promoter’s channel for the chance to win £10,000, was upheld by the ASA because the promoter did not provide them with any evidence to show that the prize had been awarded (Stephen Bear, 16 June 2021).
Prizes must not be withheld, and withholding prizes is justified only if participants have not met the qualifying criteria set out clearly in the rules of the promotion. The ASA received complaints from the winner of an Instagram promotion because they had not received all the prizes. The promoter explained that she withheld the prize because, on checking, she found that the winner had not followed the Instagram page @brileypowell, which was a requirement of entering the prize draw. However, there was no requirement that entrants had to continue following the social media page after the competition closing date, and Ms Powell could not demonstrate that the entrant had not been following the Instagram page at the time of the prize draw entry and winner selection. The ASA therefore considered Ms Powell had not demonstrated that the winner had not complied with the prize draw entry requirements, or that there was a justifiable reason for withholding the prize. She was also unable to explain why the participant had been selected as the winner if they had not complied with the entry requirements at the time of selection (Briley Powell, 18 August 2021).
In order for an alternative prize to be considered a reasonable equivalent it must be of roughly equal value to the prize advertised. In 2018 the ASA received a complaint from the winner of a Twitter promotion. The complainant, who had won the opportunity to buy a pair of limited edition trainers, was instead offered a 20% voucher to be used on a future purchase, because the promoter was unable to supply the shoes. The ASA considered that this was not a reasonable equivalent (Nike European Operations Netherlands B.V., 09 May 2018).
It is a promoter’s responsibility to ensure that they take adequate steps and make adequate attempts to contact winners and alert them to the fact they have won. Ringing a winner once will not be considered sufficient (Walkers Snacks Ltd, 28 August 2013). In social media, announcing the winner once (for example in a public tweet, post, message or responding on a comments feed) is unlikely to be sufficient.
The Code also states that promoters must either publish or make available information that indicates that a valid award took place – ordinarily the surname and county of major prizewinners and, if applicable, their winning entries. They must also inform entrants at or before the time of entry of their intention to publish or make available the information and give them the opportunity to object to this or to reduce the amount of information published or made available. In such circumstances, the promoter must nevertheless still provide the information and winning entry to the ASA if challenged (see rule 8.28.5). The ASA upheld complaints about a promotion by Bier Nuts which offered multiple prizes, including £120,000 worth of beers, snacks & merch, because they did not provide evidence which demonstrated that they had published or made available information that valid awards took place (Bier Nuts Ltd, 21 July 2021).
For more information please see 'Promotional marketing: Prize winners'.