A competition first seen on 25 May 2015, and promoted on www.vivobarefoot.com, invited participants to design a t-shirt for the chance to win the opportunity to have their t-shirt sold by the advertiser, as well as receiving a copy of that t-shirt and three pairs of shoes. Shortlisted entries would receive one of the winning t-shirts and a pair of shoes.
The complainant, who understood that the closing date had been changed, and that the number of designs which would form the shortlist had been reduced from 20 to nine, challenged whether the promotion breached the Code.
Terra Plana International Ltd t/a Vivobarefoot said the quality of entries they received was not thought to be of a high enough standard to publish and release to the broader public, and the closing date was therefore extended to encourage more entries. They said the extension of the closing date could have had no impact on the complainant's ability to enter, and that it would in fact have made it easier to enter. On reviewing the entries it was deemed only nine were worthy and appropriate to put out to public vote.
They said both of those decisions were made in the interests of customer engagement and brand integrity. It was the first competition they had conducted of that nature so the volume of worthy entries to be shortlisted was unknown. In hindsight, they said, a lower short list would have been safer. They said there were appropriate ways to use their shoes and because of that they had to be very specific about how they were marketed – many of the entries received did not correctly and appropriately explain how they should be used, which they said could have led to more substantial complaints regarding the incorrect use of their product, or outlandish statements that could not be substantiated.
The CAP Code stated that closing dates must not be changed unless unavoidable circumstances beyond the promoter's control made it necessary and either 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 those original terms would not be disadvantaged. They must also avoid causing unnecessary disappointment.
We noted that the terms and conditions of a promotion were in the advertiser's control and we considered Vivobarefoot ought to have foreseen before starting the promotion the problems that could arise, such as inappropriate entries. We therefore did not consider that the circumstances were unavoidable or beyond the promoter's control.
We understood that Vivobarefoot had decided that they had not received enough entries of sufficient quality by the deadline, and had therefore extended the closing date of the promotion. We considered that meant those who had originally entered were likely to find themselves competing against a larger pool of entrants due to the extended deadline, and would therefore be disadvantaged. We also considered that a number of participants had missed out on the chance to win a prize because of the reduction in the shortlist, which we considered was likely to cause unnecessary disappointment.
Because the extension of the closing date had not arisen from unavoidable circumstances beyond the advertiser's control, and some participants who had taken part under the original terms and conditions could have been disadvantaged, and because the shortlist had been reduced from the number stated in the original terms, resulting in fewer prizes being awarded, we concluded that the promotion had not been administered fairly and was in breach of the Code.
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. (Sales promotions), 8.14 8.14 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. (Administration), 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: and 8.17.4.e 8.17.4.e Closing dates must not be changed unless unavoidable circumstances beyond the control of the promoter make it necessary and either 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 will not be disadvantaged by the change. (Significant conditions for promotions).
The promotion must not appear again in its current form. We told Terra Plana International Ltd to ensure that they did not change the closing date of future promotions unless unavoidable circumstances beyond their control made it necessary, and participants who sought to participate within the original terms were not disadvantaged by the change. We also told them to avoid causing unnecessary disappointment.