Profane and other offensive language in marketing communications tends not to go down well with consumers (or the ASA). Christmas time is no exception. For example, a Christmas card displayed on the Amazon website stating “You’re a cunt, Sorry I meant to say Merry Christmas” (Smellyourmum.com, Ltd, 20 March 2013) was considered to cause serious or widespread offence. Similarly, a complaint about an ad which stated “Christmas Eve party with our very own Xmas midgets that’s right midgets!!!!!!!” was upheld on the basis it was likely to cause serious or widespread offence and promoted negative attitudes towards people of short stature.

Marketers' promotional activity during the festive period has resulted in a number of complaints as consumers fall under the influence of Christmas sales promotions. Marketers should ensure that they include important terms and conditions in ads for promotions which the CAP Code stipulates are significant. These terms include closing dates, age restrictions, specifying the exact nature of a prize, and they can be found under Rule 8.17. The significant terms and conditions must be included (usually in the small print) of the ad for any promotion which is subject to a limited period of time, ideally on the same page that the consumer is reading.

Often we receive enquiries from marketers wishing to change or amend terms and conditions. In general this isn’t advisable unless there are matters outside of a marketer’s control that requires such an amendment. And, it is difficult to see how those who had seen the initial promotion would not be disadvantaged in some way. The complaint in the Moneysupermarket.com Ltd (3 April 2013) case, about an ad which stated, “Five lucky runners up will each win £50 Toys ‘R’ Us vouchers. Everyone who enters will have their child's drawing made into a Christmas card and sent to them before the big day ...” was upheld because closing dates must not be changed unless circumstances outside the reasonable control of the promoter make it unavoidable (CAP Code rule 8.17.4 e). If they are changed, promoters ought to do everything in their power to ensure that consumers are notified of this change and not disadvantaged. Care should also be taken to ensure that the structure, or mechanic, of the promotion is not open to abuse. Have a read of our guidance on Sales Promotions: Abuse.

Amazon’s e-mail ad which stated “As a thank you for visiting our Music or MP3 stores...we'd like to give you an extra Christmas present: £3 to spend on anything in our MP3 Music Downloads store on Christmas Day and Boxing Day. Visit us on December 25 or 26...” prompted complaints because when the consumers’ attempted to take advantage of the offer on Boxing Day, a message stated that the code had expired. Even though the offer was “limited to one per customer” some customers made multiple purchases, and so Amazon took steps to correct it. As a result, the ASA considered that Amazon had justifiable reasons for changing the promotion and had taken reasonable steps to ensure that consumers were made aware of that change by including a statement update on its website.

In a TV ad promoting an annual post-Christmas event two people were shown carrying shopping bags to their car and a number of popular brands were shown, including a prominent “BOSE” logo. The voice-over said, "Don't miss our massive clearance sale, now on at Junction One Antrim.” In this case the ASA considered that the ad implied that the Bose store would participate in the sale, and because it had not, the complaint was upheld (Junction One Ltd, 10 April 2013).

So, marketers must not mislead as to what exactly a promotion involves, and they must also be “able to demonstrate that they have made a reasonable estimate of the likely response and that they were capable of meeting that response” (CAP Code Rule 8.9). In an ad for Hotels4u which stated “£50 off your booking on Christmas Day” the ASA considered that the advertiser had not made a reasonable estimate of demand for the advertised product. Instead the estimate was based on a random projection which was significantly lower than actual demand.

Marketers should ensure that they do not exaggerate the availability of rooms over the Christmas and New Year period. Specifically, terms and conditions included in small print might be seen to contradict rather than clarify a claim in the body of an ad. Marketers should therefore phrase their headline claims in such a way as to avoid contradictions. In the Puma Hotels PLC case, the small print, “You can stay any day of the week from December 17...This offer is valid for stays from December 17, 2012 - January 6, 2013” was considered to contradict the headline claim, “Christmas & New Year hotel breaks from just £25pp per night” because the majority of the hotels in the promotion excluded New Year’s eve from the offer. Have a read of our guidance on general Availability and availability relating to travel marketing for more information.

On a financial note, ads for loans are increasingly popular at Christmas time and marketers promoting on TV and radio should take rule 14.11 of the BCAP Code into consideration. The advertising of consumer credit or hire services is acceptable only if the advertiser complies with the Consumer Credit (Advertisements) Regulations 2004 and the Consumer credit Act 1974. In the Shop Direct Finance Company Ltd (31 July 2013) case, the ASA considered that the claim, “Get your presents now and pay nothing for up to 12 months” amounted to an incentive to apply for credit and therefore triggered the requirement to specify a representative APR, as per the Regulations. Similarly, the ASA ruled against a radio ad which stated, “The window man was a very merry man, a very merry man indeed. He found how to reduce his home's energy bills with Safestyle's energy efficient double glazing... There's free fitting and flexible monthly instalments!” because the flexible monthly instalments constituted an incentive to buy and so the typical APR should have been stated.

And, finally, marketers targeting consumers who are on a quest to look their absolute best for the pre and post party season, should do their utmost to promote ads responsibly. The issue of preparing advertising for cosmetic interventions responsibly (CAP 1.3 and BCAP 1.2) features heavily in many ASA Rulings, whether with respect to how ads are scheduled or with regard to sales promotions. For example, the voice-over in a radio ad which stated, "Christmas is here and the New Birkdale Clinic's amazing voucher offer is back. Buy your Christmas voucher now...but hurry, offer must end midnight this Friday the 23rd of November” was considered irresponsible because the very short response time in the ad trivialised the significant decision to have an invasive procedure (Liverpool Cosmetic Surgery Ltd, 20 March 2013). Incidentally, we have very recently updated our Help Note on Cosmetic Surgery to also include non-surgical cosmetic interventions. You can view this and our newly published Insight Article on this update here.

If you require bespoke advice on your non-broadcast promotions, contact the CAP Copy Advice team on 0207 492 2100 or submit your enquiry via our website. For TV ads contact Clearcast, and for Radio, contact the RACC.


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