A competition featured on East Midlands Railways’ website, seen on 1 February 2021, invited members of the public to submit ideas to help them 'Build Back Better', with the winning entry receiving a prize of £5,000.
The complainant, who understood that the competition was cancelled, challenged whether it breached the Code.
Abellio East Midlands Ltd told us that the ‘Build Back Better' competition was a contractual obligation under their franchise agreement, and had been conceived prior to the Covid-19 pandemic. They said that whilst they had not intended to run the competition under such circumstances, they went ahead with it, hoping that that it would generate innovative ideas to help the franchise.
They said that they received a high volume of what they felt to be poor quality entries, however, and were not satisfied that any of the responses would be suitable to be implemented. They said that they were also starting to see the financial impact of the pandemic on UK rail services at that point.
Abellio stated that the combination of those two factors led to their decision to withdraw the competition, rejecting all the submitted ideas. They acknowledged that doing so would be likely to cause disappointment to entrants, but felt that they had acted within the terms of the competition as they had laid them out, which stated they had the right to cancel it at any point.
Abellio said that they had explained their reasoning for the decision online, and had since discussed the contractual obligation with their client and decided to cancel any future ‘Build Back Better’ competitions.
The CAP Code stated that promoters must conduct their promotions equitably, promptly and efficiently, be seen to deal fairly and honourably with participants, and avoid causing unnecessary disappointment. The Code required promoters to ensure that their promotions were conducted under proper supervision, and that they made adequate resources available to administer them, to avoid giving consumers justifiable grounds for complaint.
The Code also required promoters to award prizes as described in their marketing communications, or reasonable equivalents, and stated that withholding prizes was justified only if participants had not met the qualifying criteria set out clearly in the rules of the promotion.
While we acknowledged that the terms and conditions of the promotion stated that they could cancel the competition, that did not absolve the advertiser of their obligation to comply with the Code. We also recognised that the Covid-19 pandemic had caused disruption to many organisations. However, we noted that the competition was launched in February 2021, which was nearly a year into the pandemic, and therefore it would not have been outside of Abellio’s control to anticipate challenges that might arise before deciding to go ahead.
The competition included a prize of £5,000 which, because it was cancelled, was not awarded. The fact that Abellio had not identified any ideas that they considered would be suitable to be implemented would not have prevented them from awarding the prize to the idea chosen to be the best by the judges, and the terms and conditions did not set out what would happen if none of the ideas could be implemented. The terms and conditions stated “ideas must be realistic and achievable and able to be implemented quickly and easily by the promoter” but we noted that could be interpreted in different ways, and no further explanation was provided. We therefore considered that the criteria of the promotion were not clearly set out.
The Code stated that if the selection of a winning entry of a competition was open to subjective interpretation, the Code required a demonstrably competent, independent judge, or a panel that included one independent member, to be appointed. We had not seen anything to indicate that any such independent judge or panel had been involved in the decision to award the prize. We considered that by cancelling the competition for the reasons given and not awarding the prize, Abellio had not dealt fairly with participants and had caused unnecessary disappointment. We therefore concluded that the competition had breached the Code.
The promotion breached CAP Code (Edition 12) rules
Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment.
Promoters must ensure that their promotions are conducted under proper supervision and make adequate resources available to administer them. Promoters, agencies and intermediaries should not give consumers justifiable grounds for complaint.
Promoters must award the prizes as described in their marketing communications or reasonable equivalents, normally within 30 days.
8.26 8.26 In competitions, if the selection of a winning entry is open to subjective interpretation, an independent judge, or a panel that includes one independent member must be appointed. In either case, the judge or panel member must be demonstrably independent, especially from the competition's promoters and intermediaries and from the pool of entrants from which the eventual winner is picked. Those appointed to act as judges should be competent to judge the competition and their full names must be made available on request. 8.27 8.27 Withholding prizes (see rules 8.15.1 and 8.2 8.2 Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment. .2) is justified only if participants have not met the qualifying criteria set out clearly in the rules of the promotion. and 8.28.6 8.28.6 in a competition, the criteria and mechanism for judging entries (for example, the most apt and original tiebreaker) (Promotional marketing).
We told Abellio East Midlands Ltd to ensure that they awarded prizes in future competitions as described in their marketing communications, to make sure that promotions were conducted under proper supervision, and to avoid causing unnecessary disappointment.