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.
All promotional marketing should clearly include all significant T&C’s upfront in initial marketing material. T&C’s are considered significant if they are likely to affect a consumers understanding of the promotion and their decision on whether or not to participate. Rule 8.17 lists the 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. Rule 8.28 states conditions which should be stated before or at the time of entry in relation to prize draws, and should remain accessible throughout the promotion.
- Which terms and conditions are likely to be considered significant?
- Where should these significant conditions be?
- I’m running a prize promotion, where should I put all other terms and conditions?
- What if my ad is significantly limited by time and/or space?
The specific terms and conditions which are likely to be considered significant will differ according to the specific promotion, and will be the conditions which are likely to affect a consumer’s understanding of that particular offer.
Whilst significant conditions may differ between promotions, Rule 8.17 lists significant conditions which are likely to apply to all promotions. These conditions include:
- how to participate, including any costs or factors likely to influence consumers’ understanding of the promotion;
- 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;
- the existence of any restrictions or limitations, such as age, date or geographical restrictions;
- any limitations of availability; and
- Unless obvious, the promoter’s name and address.
In 2015 the ASA ruled against a marketer’s ad which offered a free trial of a food delivery service, because it did not include applicable significant conditions and the full terms and conditions were only available after consumers had completed their order (Kelly’s Vegies Ltd 16 September 2015). A complaint about an online display ad for a prize draw to win a weekend in Disneyland Paris was also upheld by the ASA because it did not state that the winner must respond to the confirmation email within 24 hours of receiving it in order to claim the prize. Whilst the full terms and conditions did include this information, 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, the requirement to respond within 24 hours was a significant condition that was likely to affect their understanding of the promotion and as such should have been prominently stated in the ad (The Hut.com LTD t/a Zavvi, 13 February 2019).
Conversely, a complaint about a promotion advertised in a series of tweets by Rio Ferdinand was rejected because the ASA considered the significant T&Cs were clear. The initial tweet stated “I'm giving 2 tickets away for our home match against Stoke (31st Jan KO 8pm) ... I will tweet tomorrow morning with details of how to enter...”. The subsequent tweet explained “If you have downloaded the Rio Ferdinand App on iphone/ipad/Android or do so by Monday 5pm u may be randomly picked out to win the tickets! GO” (New Era Global Sports Management Ltd, 25 April 2012). This adjudication demonstrates that the ASA will take account of the medium used (hence a ‘trailer’ tweet to followers may be acceptable in some circumstances) and that the significant conditions of a promotion (type of promotion, how to participate, closing date, etc.) can be included in a tweet.
The ASA generally considers that all significant T&Cs should be stated in the initial marketing material, for online advertising this means that they should be included on the same page as the ad, in the main ad.
An Amazon Prime ad was upheld by the ASA in 2014 because it did not state in the initial ad that customers would automatically be charged for a year’s subscription of £79 if they did not cancel their free trial. The ASA considered this to be significant information which should have been included in the initial ad (Amazon Europe Core Sarl 04 March 2015)
Promoters should take care to ensure restrictions are stated upfront. The ASA upheld complaints against a website promotion which claimed "Free Parking... In January & February 2013" because this would be interpreted by readers to mean that parking was available for free throughout those two months, when there were 9 dates excluded. Whilst the ad stated that terms and conditions apply, and these excluded dates were listed in the full terms and conditions which were different page on the website, they were considered significant and as such should have been stated upfront on the same page as the offer. (London Southend Airport Company Ltd, 03 April 2013).
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 t/a Betfred, 30 November 2016).
Online ads for gambling promotions, such as the example above, should include all significant conditions that may influence how a consumer interprets an offer, and all other conditions should be clearly signposted and be one click or less away from the initial ad.
Other terms and conditions should be available before or at the time of entry but do not need to be given as much prominence; they can be stated on the ad but may also be stated, for example, be stated on an in-store leaflet, accompanying literature or, if entry is by a website, on the promoter’s home page or a page 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
- Any intention to use winners in publicity.
Rule 8.28 states that these terms and conditions should be clear before, or at the time of entry and should be easily accessible throughout the promotion.
In 2018, complaints about multiple billboards and social media ads which advertised a promotion to win free clothes were upheld because when the complainants saw the ads they did not indicate that terms and conditions would apply, or provide a signpost to where the terms and conditions could be accessed (21 Three Clothing Company Ltd t/a PrettyLittleThing, 16 May 2018).
Promoters cannot change terms and conditions part way through the promotion, or create and enforce T&Cs retrospectively. It is incumbent on them to determine and communicate the full terms and conditions before the promotion, including how participants should behave. Promoters should take special care when stating the requirements for online promotions, such as those requiring votes or offering free entry, because they can be particularly open to abuse (see Headwater Holidays Ltd, 08 January 2014, and Co-operative Group Ltd, 07 March 2012). See ‘Promotional marketing: Abuse’
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."
Some online promotions can be limited by space, and in these cases not all terms and conditions need to be stated in the initial ad. If 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.
Promoters should note that the ASA is unlikely to consider advertisers 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.
Text messages may be considered media which is limited by space; however marketers should be aware that the ASA will consider these on a case by case basis to establish whether this exemption is applicable. 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 t/a Lucky Pants Bingo, 06 July 2016).
Limited space might dictate where the information appears but does not influence the requirement to provide that info in a clear way that can be retained or accessed by consumers. 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).
This advice is designed to be read in conjunction with the Promotion marketing section of the CAP Code and the other entries in this advice section. Also, promoters might want to seek legal advice.