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.
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 (Code rule 8.17). This information must be clear and upfront. Rule 8.17 lists some conditions which are likely to be considered significant in all types of promotional marketing.
All other terms and conditions should be clearly signposted and easily accessible by consumers. When running prize promotions, certain information should be stated before or at the time of entry, and must be accessible to consumers throughout the promotion (rule 8.28). Rules must not be too complex, and should only be changed in exceptional circumstances (rule 8.23).
The specific information that will be considered significant will differ according to the specific promotion. Any information which is likely to affect a consumer’s understanding of the advertised offer will be considered a significant condition.
Whilst significant conditions may differ between promotions, Rule 8.17 lists significant conditions which are likely to apply to all promotions. These include:
- how to participate;
- any free entry route explanation;
- start date (if applicable);
- closing date;
- any proof of purchase requirements;
- the nature and number of any prizes or gifts, or a reasonable estimate if the number cannot be determined;
- any restrictions or limitations, such as age, date or geographical restrictions;
- any limitations of availability; and
- unless obvious, the promoter’s name and address.
Some common conditions, such as a closing date, limitations and eligibility restrictions are always likely to be considered significant. If eligibility is dependent on certain factors, this must be clear. For example, if a promotional discount or free gift is dependent on customers spending a certain amount (The Hut.com Ltd, 01 December 2021).
Other less common conditions will also be considered significant, if their omission is likely to mislead. An online promotion was considered problematic because the ad did not make clear that, to claim the prize, the winner would need to respond to the confirmation email within 24 hours of receiving it. The ASA considered that, as there could have been any number of reasons why participants were not able to check their emails over the period, this requirement was a significant condition that was likely to affect their understanding of the promotion, and therefore should have been prominently stated in the ad (The Hut.com Ltd, 13 February 2019).
A promotion offering 4 weeks free access to a training course was upheld because the ad did not make clear that it was not possible to complete the full course in that time. Because consumers may have decided not to start the course, had they known that to complete it they would have to pay for access after the free trial, this information was considered significant (Shaw Academy Pvt Ltd, 07 July 2021). The ASA regularly receives complaints about free trials or other subscription offers which do not include all significant information about the offer. For more guidance on these promotions please see ‘Promotional marketing: free trials’ and CAP ‘Guidance on “free trial” or other promotional offer subscription models’.
Significant conditions must be clearly stated in the initial promotional material.
For online promotions, such as banner ads or social media posts, significant conditions must be in the ad itself. On a promoter’s own website, these should be upfront and must not be hidden at the bottom of a long webpage, or in long sections of text. A promotion for e-vouchers was upheld because the ad did not include information which was considered significant. The ad did not make clear that purchases using the e-vouchers would be subject to postage costs and could not, in some cases, be used towards those postage costs, or that the e-vouchers were only available for six teams. Although these terms and conditions were linked to from the main promotion page, this significant information should have been presented clearly in the ad itself (Mondelez UK Ltd, 27 April 2022).
The same will apply to promotions in emails. An email for a welcome offer with Betfred which was sent to new customers was upheld in 2016 because it did not clearly and prominently state in the email that this could only be used on members first bets, and this information was instead only included in the complete terms and conditions which were listed on the website, two clicks away from the email (Petfre (Gibraltar) Ltd, 30 November 2016).
When advertising on social media, significant information must be included in the initial post. (see 21Three Clothing Company Ltd, 16 May 2018 for Twitter, Velvet Sofa, 04 March 2020 for Facebook, and SR2AN Ltd, 22 December 2021 for Instagram). If a promotion has too many significant conditions to include in media with limited space, it might not be the right place to promote it.
If marketing a promotion on product packaging, the significant conditions must be presented clearly on the outside of the packaging. It will not be sufficient to include these on the inside of packaging, for example, on the inside of a sticker or on the inside of a sleeve, even if that sleeve can be removed. The ASA considered that including significant information on the inside of a sleeve would be unacceptable because most consumers would be unlikely to remove the sleeve before purchase (Bighams Ltd, 30 March 2022).
Rule 8.18 states that "Marketing communications that include a promotion and are significantly limited by time or space must include as much information about significant conditions as practicable and must direct consumers clearly to an easily-accessible alternative source where all the significant conditions of the promotion are prominently stated. Participants should be able to retain those conditions or easily access them throughout the promotion.".
If online ads are significantly limited by space, and readers can click through to more information, it might be acceptable for significant conditions to be on the landing page and other less important conditions to be one click away. The initial ad should always indicate that terms and conditions apply.
This does not mean that ads with limited space do not need to include any information, and they must still include as much significant information as practicable in the ad. Even in media where there is limited space, the ASA might consider that significant conditions should have been included, and the ASA have rarely considered ads sufficiently limited to mean that it was acceptable to include no significant information. A tweet advertising a competition for pet plan was upheld by the ASA in 2012 because it did not include any terms and conditions (Pet Plan Ltd, 26 September 2012). Similarly, a text sent to consumers in 2016 which advertised a promotional offer was upheld because it did not include a significant condition, and the ASA considered that the text was not sufficiently limited by space to justify this (Daub Alderney Ltd, 06 July 2016).
The ASA is unlikely to consider an advertiser’s own websites or emails to be limited by space and they should take care to ensure significant terms and conditions are in the email, or in the ad itself on the same page of the website.
Limited space might dictate where the information appears but does not change the requirement to provide that information in a clear way that can be retained or accessed by consumers.
When running a prize promotion, the full terms and conditions should be clearly available before, or at the time of entry, but do not need to be given as much prominence and may be made available in accompanying literature, providing the ad makes it clear that these apply and how they can be accessed (Rule 8.28). If advertising a competition in-store, for example, it might be acceptable to include full terms and conditions on an in-store leaflet or on a webpage which is signposted in the ad. If advertising a competition online, it is likely to be acceptable for a promoter to include these on a website, linked to from the ad. They include (but are not limited to):
- any restriction on the number of entries;
- whether there is a cash alternative;
- when prize winners will receive their prizes (if more than 30 days after the closing date);
- how and when winners and will be notified;
- In competitions, the criteria and mechanism for judging entries;
- If relevant, any copyright information regarding entries;
- if applicable, how entries will be returned; and
- any intention to use winners in publicity.
These terms and conditions should be clear before, or at the time of entry and should be easily accessible throughout the promotion. Complaints about a promotion to win clothes, advertised on billboards and social media, were upheld because the ads they did not indicate that terms and conditions applied, or make clear where they could be accessed (21 Three Clothing Company Ltd, 16 May 2018).
In another promotion, the promoter only provided the full terms and conditions to participants when requested, via a series of messages via Instagram, rather than a direct link. The ASA considered that having to request the terms and conditions from the promoter was not consistent with them being easily accessible or retainable by participants in the draw (Witcombe Festival, 02 March 2022).
Code rule 8.23 states that terms and conditions should not be too complex for consumers to understand, and that conditions of entry should only be amended in exceptional circumstances. This rule also makes clear that, in such circumstances, promoters must tell participants how to obtain the supplemental or amended rules, and they must contain nothing that could reasonably have influenced consumers against buying or participating. The ASA upheld complaints about a prize promotion in which the entry route was changed part way though. It considered that the change was likely to have influenced consumers against buying or participating, and because the new method of entry was likely to increase the pool of entries in the prize draw, which was unfair to those who entered under the original terms (Raffle House Ltd, 26 June 2019). See also Headwater Holidays Ltd, 08 January 2014.
This advice is designed to be read in conjunction with Section 8 (Promotional marketing) of the CAP Code and other relevant guidance. See ‘Promotional marketing: general’ for a list of all available guidance.