Background
Summary of Council decision:
Two issues were investigated, of which one was Upheld and one was Not upheld.
Ad description
A prize promotion, on Pepsi packaging, offered the chance to win £500 every hour. Text included "FOR A CHANCE TO WIN, ENTER THE LAST 4 DIGITS OF YOUR BARCODE AT WWW.PEPSI.CO.UK OR TEXT 62948".
Issue
Two complainants challenged whether the promotion had been administered fairly:
1. one of the complainants understood the entry codes were not unique and had been posted online by consumers, which allowed them to be used by those who had not purchased the product or followed the relevant no-purchase entry process.
2. the second complainant, who won several times and was subsequently informed that only one win would be honoured, objected that that restriction was not made clear.
Response
PepsiCo International Ltd (PepsiCo) said the significant terms and conditions of the promotion were on the product label itself and on the promotional web page a link was provided to the terms and conditions. They said consumers had to tick a box to agree to the terms and conditions before they entered the promotion, at which stage a further link to the conditions was provided.
1. PepsiCo said the product label stated that no purchase was necessary. Consumers could enter the promotion by purchasing the product and entering the Code or by entering the promotion online with no purchase necessary. They said the cost of having unique codes on each label was very high. However, the contact details of entrants were instead monitored to ensure they did not enter more than once per hour. They said consumers were increasingly finding ways to enter promotions without having to purchase the product and would share details of how to do so online. They said they ensured the promotion was administered fairly and honourably by restricting the number of times consumers could enter and by monitoring their contact details.
2. PepsiCo said the terms and conditions, which stated "There is a limit of one entry per mobile phone number/email address per hourly prize draw. Only one code can be entered at a time. No bulk, consumer group, third party or agent entries will be valid", made clear the restriction on the number of entries. They said the entry form did not change during the promotion; if they had done so, the terms and conditions would have needed to be amended to reflect that, which could have disadvantaged those who had already entered. PepsiCo said entrants would have been required to agree to the terms and conditions before entering the promotion online. They said entries were monitored manually during the promotional period to ensure mass submissions were not being received from single IP (internet protocol) addresses. However, entrants also had to input a 'capture code' before submitting the form, which was intended to prevent users from being able to build robots in order to enter multiple times. Time limitations were also added, so there were then a maximum of two entries every 60 seconds.
PepsiCo said winners of the promotion were notified via an automated e-mail or SMS, which were generated by the prize draw engine as soon as the draw had taken place. The notification also informed winners that a member of the Pepsi MAX team would be in touch to confirm the prize and the entrant's address, which was also to make sure the winning entries were genuine rather than generated by a computer. They said over the first six weeks of the promotional period, one entrant and his family had entered over 11,000 times using a high number of slightly varying e-mail addresses, which equated to over 35 entries per draw and with some draws being entered more than 500 times within the hour. Members of the family's entries had been selected as the winner on multiple occasions. However, there was a delay between those wins being confirmed and the entries, which came from one IP address over a long period of time, being identified as having been automatically generated. PepsiCo said they did not know the exact mechanism that had been used to make such a high number of entries; however, it appeared a robot had been used. They said it was difficult to see how any individual could complete the form manually so many times and although they did not know the mechanism that had been used, bulk entries were not valid and the entries were considered to be bulk. PepsiCo said "bulk" did not necessarily mean the same as "automated", however, and the terms and conditions made clear that bulk entries would not be valid.
Because it appeared the entries were not genuine, and instead appeared to be both bulk and automated, they were considered to be in breach of the terms and conditions. PepsiCo said it was justified for promoters to withhold prizes if participants had not met the qualifying criteria set out in the terms and conditions and, because the terms and conditions explained that bulk entries were not valid, they informed the entrants as soon as they became aware of the problematic entries that the prizes would not be awarded, aside from the initial win for each participant in the family. They said, although the entrants had been informed that they had won on multiple occasions, the additional prizes had subsequently been withheld because the participants did not meet the qualifying criteria and it would have been unfair to other entrants to award prizes that were won via bulk entries. The said the first wins were honoured and a response was provided in relation to the other draws within 28 days of the draw taking place. They said only the draws that had been won by bulk or automated entries had been re-drawn and they therefore had dealt with the matter fairly and honourably. They believed they had dealt with the matter appropriately, ensuring that all participants were dealt with fairly and that those who had acted in accordance with the terms and conditions had the opportunity to win.
Assessment
1. Not upheld
The ASA noted that entrants who obtained details of entry codes online did not have to either purchase the product or follow the relevant no-purchase entry process, which the terms and conditions stated was by post. We considered, however, in the absence of unique entry codes, it would not be possible for advertisers to prevent consumers sharing information online or for them to readily determine which of the entrants had obtained an entry code by purchasing the product and which had not. We considered it was reasonable for advertisers not to use unique codes, provided promotions were administered fairly. Notwithstanding the concerns outlined below, we noted that PepsiCo monitored entrants' contact details to ensure compliance with the terms and conditions related to bulk entries and that neither the promotional packaging or website, which both made clear consumers could enter without purchasing the product, stated that the entry Codes were unique. We therefore concluded that the promotion had been administered fairly.
On this point, we investigated the promotion under CAP Code (Edition 12) rule 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. (Sales promotions but did not find it in breach.
2. Upheld
We considered that generating multiple e-mail addresses to make a large number of entries was not within the spirit of the promotion and could unfairly disadvantage other participants who entered using only existing e-mail addresses. We noted, however, the terms and conditions clearly stated that there was a limit of one entry per e-mail address per hourly prize draw. We considered the additional explanation in condition eight, which related to the number of entries allowed, was ambiguous. While we noted it did not directly refer to "automated" entries, we considered, in the context of text that made clear the acceptability of entering once per e-mail address, and of further text that stated "No bulk, consumer group, third party or agent entries will be valid", the reference to "bulk" entries was likely to be interpreted as suggesting that entries generated automatically, and in particular not by individuals, would not be accepted. We noted that PepsiCo had not provided evidence to demonstrate that the complainant's entries were made by means other than individuals generating multiple e-mail addresses.
We noted the terms and conditions, which did not make clear that it was not acceptable to make multiple entries from a single IP address, stated that winners would be selected "… from all valid entries for each draw" and that the complainant and his family members each received confirmation of several wins following the draws. We therefore considered that to withdraw the prizes subsequently, and in some cases over a month after those entrants had been notified of the wins, caused unnecessary disappointment given that, we understood, they had used a different e-mail address for each entry, as per the requirements of the terms and conditions. We considered significant conditions of the promotion were not made sufficiently clear and that, because unnecessary disappointment had been caused, the promotion had not been administered fairly.
On this point, the promotion breached CAP Code (Edition 12) rules 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. 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: (Sales promotions) and 8.23 8.23 Promoters must avoid rules that are too complex to be understood and they must only exceptionally supplement or amend conditions of entry with extra rules. 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. 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 8.28.1 8.28.1 any restriction on the number of entries (Prize promotions).
Action
We told PepsiCo to ensure promotions were administered fairly and that significant conditions of promotions were made clear in future.
