Summary of Council decision:
Two issues were investigated, both of which were Upheld.
A paid-for Instagram post and website for a promotion by Team Hard Racing Ltd, seen in November 2020:
a. The Instagram post stated “You could own this current NGTC BTCC Volkswagen CC which is currently driven by Jack Goff! This car has won BTCC races and the teams [sic] championship. Own a piece of British Motorsport history. This car is also eligible for series such as the TCR/TCRUK, Britcar and BTCC championships and comes FULLY RACE READY! Find out more, it’s cheaper than you think [pointed finger emoji] [wink emoji].”
An image of a racing car on a track appeared, alongside an image featuring a car interior. Text on the images stated “TEAM-HARD.COM/WIN” and “OWN ME!”. A clickable button underneath included the text “Learn more”.
b. The website www.team-hard.com, featured a web page titled “NGTC BTCC Volkswagen CC £19.99 YOU COULD WIN A CURRENT RACE AND CHAMPIONSHIP WINNING NFTC BRITISH TOURING CAR!” A countdown clock appeared underneath, and further text included “Lottery ends: January 29, 2021 00:00 Timezone UTC+1 This competition has a minimum of 1 tickets This competition is limited to 5000 tickets”.
Further text below stated “Answer the question: Who is the Managing Director at Team HARD Racing?” followed by three names and an “ENTER NOW” button. A separate tab below titled “How it works” included the text “Select how many tickets you wish to purchase (there is no limit)”. Another tab titled “Free Entry” stated “For our free entry route click here”. A web page titled “Free Postal Entry Route” stated “If you wish to enter any of our competitions via post, then you are required to send an unenclosed postcard via stamped 1st class post stating: The name of the competition you would like to take part in, the answer to the question specific to that competition along with the following personal details. Full name Date of Birth Postal Address Email Address One contact number Postcards must also contain the correct Answer to the question for the competition you wish to enter. All details must be either typed or clearly written, we cannot enter you into a competition if the writing on your postcard is not legible. If we receive one postcard in the post containing multiple entries this will not comply with the above terms and conditions. Send entries to: Team HARD. Racing, Detling Aerodrome, Maidstone, Kent, ME14 1EY Postal entries must be received and processed before the close of the competition, Any entries that fail to follow the above criteria will be void. Entrants must have an active account on our website at the time the postal entries are processed and all details on postcards must match the name and address on the active account of which they will be added to. If we believe that one person is trying to enter using multiple names and details all associated entries will be canceled and void, as per the paid entry route.”
The Terms and Conditions on the website included the clause “8.7 The Promoter also reserves the right at its sole discretion to extend the closing date of any Competition. Each Competition can have the closing time extended by the Promoter up to 4 times”.
The complainant challenged whether the promotion in ads (a) and (b):
1. had been administered fairly because entry to the paid route listed was unlimited but entry to the free route was limited to one; and
2. breached the Code because the closing date could be extended by up to four times.
1. & 2. Team Hard Racing Ltd stated that ad (b) did not make any reference to a purchase price or the free entry option. All of the relevant information was enclosed on the website once prospective participants clicked the link in the ad. For that reason, they had included the ‘learn more’ click through button and not the ‘shop now’ button. They said that they had their extension policy in place due to the current uncertainty surrounding COVID-19. They said that many of their competitions involved human interaction and they felt that it was important to be able to extend promotions in case they had to delay the experiences due to COVID-19 restrictions.
In the past two months they had had 13 promotions close on or before the original end date, which showed their commitment to fulfilling their promotions despite the current uncertainty. They said that they had temporarily paused all of their competitions while the ASA investigation was ongoing to ensure that they were not breaching any rules and would resume their competitions once the investigation was concluded.
The CAP Code stated that promoters must conduct their promotions equitably, promptly and efficiently, be seen to deal fairly and honourably with participants and potential participants and avoid causing unnecessary disappointment. We therefore expected the free-entry route to be equitable and not discriminatory against those who had entered using it.
We understood that participants could pay to enter the competition as many times as they wanted whereas participants who had entered through the free route were limited to one entry. We considered that this gave participants who had paid to enter multiple times an unfair advantage by giving them a greater chance of winning than participants who could only enter once through the free entry route. We therefore concluded that the promotion had not been conducted equitably and breached the Code.
On that point, the ad breached CAP Code 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. (Promotional marketing).
The CAP Code stated that closing dates must not be changed unless: unavoidable circumstances beyond the control of the promoter made it necessary; to not to change the date would be unfair to those who sought to participate within the original terms; or those who sought to participate within the original terms would not be disadvantaged by the change. In this case, the terms and conditions for the promotion stated “The Promoter also reserves the right at its sole discretion to extend the closing date of any Competition. Each Competition can have the closing time extended by the Promoter up to 4 times”.
The original deadline for the promotion was 29 January 2021, and we understood that the deadline had been extended to 19 February 2021. We considered it was the duty of the competition promoter to ensure that those who sought to participate within the original terms were not disadvantaged and to award the prize as described, or a reasonable equivalent. The terms and conditions also should not be devised so that they could be changed to suit the promoter if the competition did not progress as anticipated. The extension of the closing date reduced the odds of winning for those who had participated by the original closing date. Team Hard Racing stated that their extension policy was in place due to the current uncertainty surrounding COVID-19, as many of their competitions involved human interactions. We noted that some of their promotions involved winning experiences such as test drives around racing tracks and entries to car-testing and racing events in 2021 which required human interaction and might be subject to restrictions or cancellations due to the pandemic. However, with the particular promotion in this case, we understood that the prize was a racing car and would likely require minimal human interaction to be awarded. In any case, we considered that anticipating future COVID-19 restrictions did not constitute unavoidable circumstances outside of Team Hard Racing’s control that made it necessary to extend the closing date.
While we acknowledged that restrictions due to COVID-19 created limitations and uncertainties, we did not consider that this exempted Team Hard Racing from doing everything they could to honour the original closing date in line with the requirements of the CAP Code, for example, having other mechanisms in place to address any unexpected occurrences such as delaying the award of the prize, or offering a reasonable substitute while keeping the original closing date. Because the closing date was liable to change due to factors that were not unavoidable circumstances beyond the control of the promoter, we concluded that the ad was in breach of the Code.
On that point the ad breached CAP Code (Edition 12) rule 18.17.4.e (Promotional marketing).
The ad must not appear again in the form complained about. We told Team Hard Racing Ltd to ensure that in future promotions, the number of entries permitted per person for the paid-entry route was the same as the free-entry route and that closing dates were not changed unless unavoidable circumstances beyond the control of the promoter made it necessary.