Summary of Council decision:
Two issues were investigated, both of which were Upheld.
A promotion in the Times newspaper for Legoland tickets, seen in February 2017, offered promotional codes for readers to collect. The ad stated, “Get two Legoland tickets for £10 … Once you’ve collected all four unique codes go to thetimes.co.uk/legoland”. Small print at the bottom of the page included "Subject to availability".
The ASA received three complaints:
1. Two complainants, who understood that demand for the promotion outstripped the available tickets, challenged whether the promotion was misleading and complied with the Code because they did not believe the advertiser had made a reasonable estimate of demand.
2. One complainant, who noted that the promotion displayed the dates that the tickets could be redeemed, but not the closing date for the promotion, challenged whether the promotion was misleading.
1. News UK & Ireland (t/a News UK) responded that they believed they had made a reasonable estimate of demand. They stated that they regularly ran promotions including free or discounted gifts and experience offers. They provided information which showed that, on average they normally had 4,500 redemptions for promotions in 2016. News UK stated that all promotions in 2016 were free to enter.
News UK stated that this was the first time that the Times newspaper had offered tickets to be acquired by token collection, with a payment element for the tickets, so they based their estimate for demand on a range of previous promotions. They highlighted two in particular: a promotion carried out by Times+ for free Legoland tickets that had 10,000 redemptions; and a promotion in the Times Newspaper in 2012 for free Alton Tower tickets, which had 15,000 redemptions.
The Alton Towers promotion, like the Legoland promotion, involved collecting four tokens in order to redeem the tickets. However, the Alton Towers promotion was for free tickets and had dates available from May to October 2012, throughout the school summer holiday period which News UK considered would be more attractive to families than the Legoland promotion which had availability from 10 March to 15 May 2017. The Times+ promotion was for free tickets, ran for roughly half the time and had availability for tickets over the summer holidays. Taking all these factors into account, News UK believed that the Legoland promotion would be less attractive than both the Alton Towers and the Times+ promotions.
News UK stated that they purchased 25,000 pairs of tickets. This was based on the number of redemptions from previous promotions generally and in particular, the take up of their Alton Towers promotion in 2012 and the Times+ Legoland promotion in 2015. News UK stated that although they did not believe the promotion would be more popular than the Times+ promotion, they chose to purchase an additional 15,000 pairs of tickets to ensure that there was a buffer in case demand was higher than expected.
News UK stated that in this instance demand was higher than they had expected and they received 500 direct requests for tickets after they had run out. News UK believed that the excess demand was partly due to the fact that a prominent journalist independently of them had mentioned their promotion on a popular breakfast TV show and on a popular personal finance website. News UK stated that this led to the promotion being featured on multiple discount websites, without their involvement. News UK said they did not anticipate this at the time.
News UK stated that because there was a sudden rise in demand following the competition being mentioned on television, which occurred after the final day of in-paper advertising, they were not able to remove or alter the ads in the newspaper. They stated that customers were alerted to the fact that tickets had run out when they received an error message when they tried to select an available date for attending Legoland. In order to avoid disappointing entrants, they released an additional 500 pairs of tickets to the entrants who had contacted them after they ran out. News UK stated that in the future they would look into ways of communicating that they had run out of availability.
2. News UK responded that they included the closing date of the promotion in the full terms and conditions. They stated that in future they would include a prominent closing date on their promotions where it was appropriate to do so. News UK stated that they believed that the allotted number of tickets would not be exhausted by the conclusion of the promotion and therefore that the closing date may have been extended. They did not believe that by not including the closing date would materially disadvantage anybody because they believed that consumers would generally know that they needed to book quickly to ensure that their preferred dates were still available.
The CAP Code stated that promoters must be able to demonstrate that they had made a reasonable estimate of the likely response and either that they were capable of meeting it, or that they clearly presented sufficient information to consumers to make an informed decision on whether to participate, – for example any limitation on availability and the likely demand. Phrases such as “subject to availability” did not relieve promoters of their obligation to do everything reasonable to avoid disappointing participants.
In this case we understood that News UK had made an estimate of demand and relied on being able to meet it. Although we noted that the ad included small print stating “Subject to availability”, we considered consumers would expect News UK to be able to meet demand for the promotion from those who complied with the terms and sought to redeem their voucher codes. We therefore considered whether the estimate was reasonable. We understood that the estimate of demand had been made by taking into account a range of different promotions, with emphasis placed on the Alton Towers 2012 promotion in the Times and the Legoland promotion in Times+. We noted that these promotions were not identical to the promotion complained about for the reasons explained by News UK. Additionally the Times+ promotion was on a different media platform with a different audience. However, we considered that taken all together it was reasonable for News UK to have used a number of previous promotions to make an estimate of demand for their promotion and we noted that News UK had ordered considerably more pairs of tickets than had been redeemed in either comparator promotion. We considered that the most likely reason that demand for tickets was higher than News UK’s estimate was that the promotion had been featured on a popular breakfast television programme by a prominent journalist. We considered that News UK could not have reasonably predicted this at the time, though noted that it was commonly known for discount websites to share information about promotions. Taken altogether, we considered that News UK had made a reasonable estimate of demand when planning the promotion.
But we also considered whether or not News UK had taken sufficient steps to avoid disappointing consumers when demand was higher than the original estimate. The CAP Code required that if promoters relied on being able to meet the estimated response but were unable to, because of an unexpectedly high response or some other unanticipated factor outside of their control, then they must ensure relevant timely communication with consumers and, in cases of any likely detriment, offer a refund or a reasonable substitute product. We understood that they had given 500 pairs of tickets to people who had directly contacted them after the tickets had run out. However, they did not take any further action to communicate with and either refund or offer a reasonable substitute product to participants more widely. We considered that this was likely to have caused disappointment and detriment to those consumers who had purchased four copies of the newspaper to obtain the relevant Codes.
For those reasons we concluded the promotion was misleading and had not complied with the Code.
On this point the ad breached CAP Code (Edition 12) rules 8.9 8.9 Phrases such as “subject to availability” do not relieve promoters of their obligation to do everything reasonable to avoid disappointing participants. and 8.11 8.11 If promoters rely on being able to meet the estimated response but are unable to supply demand for a promotional offer because of an unexpectedly high response or some other unanticipated factor outside their control, they must ensure relevant timely communication with applicants and consumers and, in cases of any likely detriment, offer a refund or a reasonable substitute product. (Promotional marketing - availability).
We also investigated the ad under CAP Code (Edition 12) rule 8.10 8.10 Promoters must be able to demonstrate that they have made a reasonable estimate of the likely response and either that they were capable of meeting that response or that consumers had sufficient information, presented clearly and in a timely fashion, to make an informed decision on whether or not to participate - for example regarding any limitation on availability and the likely demand. but did not find it in breach.
We considered that the closing date for the promotion was a significant condition that should have been prominently displayed with the ad. We acknowledged that News UK had placed the closing date in its full terms and conditions. However, the ad stated “Collect four unique codes between now and February 22” and, without further information we considered that consumers were likely to regard that, or the dates on which the tickets could be redeemed, as the closing date of the promotion, as these were the prominent dates on the ads. As the closing date differed from these dates and the promotion was subject to availability, we considered that it was important that consumers understood how long they had to redeem their codes in order to receive the tickets. As this was not clear from the ad, we therefore concluded that the ad was misleading.
On this point the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 8.17 8.17 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. Significant conditions or information may, depending on the circumstances, include: 8.17.4.a 8.17.4.a A prominent closing date, if applicable, for purchases and submissions of entries or claims. Closing dates are not always necessary, for example: comparisons that refer to a special offer (whether the promoter's previous offer or a competitor's offer) if the offer is and is stated to be "subject to availability"; promotions limited only by the availability of promotional packs (gifts with a purchase, extra-volume packs and reduced-price packs) and loyalty schemes run on an open-ended basis d 8.17.4 8.17.4 Closing date (Promotional marketing - significant conditions for promotions).
We told News UK & Ireland Ltd to ensure that if they were unable to supply demand for a promotional offer because of an unexpectedly high response or some other unanticipated factor outside their control, they must ensure relevant timely communication with applicants and consumers and, in cases of any likely detriment, offer a refund or a reasonable substitute product. We also told them to ensure that ads for future promotions included the closing date.