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.
Types of prize draw
The term “prize draw” includes a variety of promotional mechanics:
In traditional prize draws, the winner is chosen at random from all valid entries returned by participants.
In “pre-selected winner” promotions, the promoter normally chooses the winning number at random from all possible winners (usually before direct mailings or product packs are distributed, each bearing a unique code or other form of identification) and only later determines whether the entry containing that number has been returned or entered by the consumer. Prizes are only awarded to those who return the winning code or symbol to the promoter within the promotional period. Therefore, prizes may not necessarily be awarded. The promoter may choose to allocate the prizes using a traditional prize draw to those who have entered.
An “Instant win” promotion is one in which winning tickets are randomly and securely distributed in or on promoted products and consumers get their winnings at once or know immediately what they have won and how to claim it without delay or administrative barriers. See 'Promotional marketing: Instant wins'
Other promotions are normally operated via codes on pack entered by a secondary route (for example, text or web) and winners are selected according to a pre-set formula, for example 1 in 100; these are not “instant-win” promotions and should not be described as such (Bic UK Ltd, 13 December 2006).
Terms and conditions
Rule 8.17 lists significant conditions for all sales promotions, including prize draws and provides a handy checklist. Although 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, the ASA has generally interpreted this as meaning that significant T&Cs should be stated in the initial marketing material (Profitable Ply Ltd, 17 August 2011).
Less significant conditions should be available before or at the time of entry but do not need to be given as much prominence; they might, for example, be stated on an in-store leaflet, accompanying literature or, if entry is by a website, on the promoter’s home page. They include (but are not limited to): how and when winners and results will be announced; when prize winners will receive their prizes (if more than 30 days after the closing date); whether there is a cash alternative and any restriction on the number of entries (Rule 8.28).
All the terms and conditions of a sales promotion must be easily accessed throughout the promotion (for example, on a website) or in a form retainable by entrants (rule 8.28). The ASA has ruled that having important information on the envelope only is unacceptable (Kingstown Associates Ltd t/a Healthy Living Direct, 10 August 2011; HHS Trading (UK) Ltd, 20 June 2007). See ‘Promotional marketing: Terms and conditions'.
Changing T&Cs during the promotion should be avoided at all costs and promoters would have to have a robust defence to show that they have dealt fairly with consumers and have not caused unnecessary disappointment. Promoters should be aware the ASA has upheld complaints where a promoter created and enforced T&Cs retrospectively with the aim to combat abuse (Meeeeet.com t/a Piingwin.com ApS, 3 October 2012). See ‘Promotional marketing: Abuse’.
Marketers may promote the same prize draw on more than one occasion for example, featuring the different prizes available so long as they make clear the identity of the promotion being promoted, that consumers could receive future opportunities for the same promotion and that the prize featured could change. It is important that consumers do not wrongly believe either they are entitled to enter separate promotions for different prizes or they have more chances of winning than they do.
Promoters should ensure that prizes are awarded in accordance with the laws of chance and under the supervision of an independent observer (Optimax Laser Eye Clinics, 26 November 2008, Nestle UK Ltd, 13 September 2006). See ‘Promotional marketing: Independent judges and observers’. The ASA upheld complaints about a magazine promotion that had been poorly administered. Because of unintentional drawing before the closing date, not all entrants were included in the draw. Consequently, the ASA concluded that not all entrants were given an equal chance of winning and the promoters had not dealt fairly and honourably with entrants (Northern & Shell plc, 4 June 2008).
The ASA would take a very dim view of a promoter that decided not to award prizes merely because it had not received enough entries. That would not be a good enough reason to withhold prizes unless stated at the outset as a condition of the promotion. The Copy Advice team is often asked what promoters should do if they have carried out the promotion according to the terms and conditions laid down but are unable to contact the winner. Both CAP and the ASA would expect promoters to make all reasonable efforts to contact the winner but if, despite their best endeavours, they are not able to contact the winner, promoters do not need to award the prize. Some promoters award the first prize to the runner up.
Promoters must not imply recipients have won if they have not. Significant qualifying text should be given similar prominence to main claims, for example, “MR X WILL DEFINITELY WIN A PRIZE if he has and returns the winning entry” is likely to be considered misleading. Qualifying claims can expand on primary claims, or qualify them in other ways but should not contradict the impression a consumer might get from reading the primary claim in isolation (rule 3.9).
Prizewinners should usually receive their prize within 30 days (Rule 8.28.3) and promoters should either publish or make available on request the name and county of major prizewinners (Rule 8.28.5).
Promoters must not imply that respondents are luckier than they are by, for example, blurring the distinction between a gift and a prize (JDM Marketing Ltd t/a Bright-Life UK, 6 February 2013; Abstract Games Ltd t/a Mediaprom Ltd 18 March 2009; Damartex UK Ltd, 17 January 2007) or wrongly using the words “finalist” or “congratulations” (Mookie Toys Ltd, 24 October 2012). See ‘Promotional marketing: Implying recipients are luckier than they are’.
Promoters must not confuse entry routes for prize draws and routes to claim prizes. Rule 8.21.1 of the CAP Code prohibits promotions where consumers incur a cost to claim a prize and therefore charging a consumer to ring and claim their prize is unacceptable (Churchcastle Ltd t/a Spencer & Mayfair 2011, 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.