Summary of Council decision:
Two issues were investigated, both of which were Upheld.
A website for Weleda UK, www.weleda.co.uk, seen on 9 January 2017, featured a “Garden Global” promotion which stated “travel around the world for three months on an exceptional journey of discovery to different Weleda locations worldwide”. The website also stated “complete your application and attract as many online votes as possible, to become one of 6 national finalists. The Weleda judging panel will then select the final candidate from the Top 6, and our national winner will go on to experience an unforgettable week in Germany… to become the ultimate Global Garden Winner. Take your trip from March to June 2018”. The Terms and Conditions stated the initial application period closed at “11.59pm GMT on Sunday 10th September 2017”.
The complainant, who entered the “Garden Global” competition, challenged whether the promotion was run fairly because:
1. the advertiser reopened the competition in the UK for 24 hours at 5 pm on 12 September, after the closing date on 10 September, as it was not possible to vote during the final 24 hours of the competition; and
2. the online voting did not comply with the competition’s terms and conditions, as they believed Weleda employees encouraged people to vote for one of the candidates on Facebook and it was possible for people to submit more than one vote for each candidate.
1. Weleda UK Ltd said in the first phase of the Garden Global competition entrants in each country registered a profile, and then attempted to collect as many votes as possible from the general public. The competition terms and conditions for the UK were displayed on the competition website, which stated the voting would close at 11.59 GMT on 10 September 2017, and the top six candidates would be selected based on the highest number of votes received. It said Weleda UK would then select one person from the top six to become the UK finalist, who would be notified on 12 September. In phase two of the competition the UK finalist would travel to Germany with all the other finalists, where a global finalist was to be selected.
Weleda UK said the voting for the competition closed 24 hours early globally due to a technical error in another country. The voting was set to close at 00.00 on 10 September, rather than at 11.59pm, which meant it closed 24 hours earlier than anticipated. They said that in response to the error, voting in the UK was reopened for an additional 24 hours on 12 September at 5 pm. Weleda UK were notified by their global team by email on 11 September that the voting had closed early. Although the global Weleda contact advised it would technically breach the competition terms and conditions to reopen the competition, Weleda UK stated they made the decision to reopen the voting to ensure each candidate had the full 28 days to enter and amass votes as per the competition terms and conditions. They said that it was an unplanned situation and out of their control, and they acted in good faith by reopening the voting so as not to discriminate or disadvantage entrants who had expected that their friends and family could still vote on the final day. They had received a number of complaints from entrants so therefore felt an obligation to reopen the voting. Of 17 countries that participated in the competition, a small number of countries reopened their voting, including the UK.
Weleda UK said all the UK entrants were communicated with by email on 12 September at 10.38 am to make them aware that the voting was reopening later that day at 5 pm due to the error. They stated the complainant was ranked in the top six places when the voting closed early on 9 September at midnight. However, when the competition closed for the second time on 13 September at 5.01 pm, the complainant and another entrant who were previously in the top six had been overtaken by two other candidates, and were positioned seventh and eighth. Weleda UK said they therefore selected the UK finalist from the top eight entrants, rather than the top six, and the selection panel was comprised of three members of the UK Weleda team, although there was no independent panel member. They provided scanned copies of the panel’s handwritten notes during their consideration of the top six candidates on 7 September, and also on another page, notes regarding the two additional entrants who moved into the top six places after the competition had been reopened.
Weleda UK said they contacted CAP’s copy advice service on 21 September regarding the circumstances under which they had reopened the competition. The next day an internal review of the competition was carried out by a member of staff from Weleda UK who had not been involved in the competition, who concluded that Weleda UK had had an obligation to reopen the voting. They provided notes from the internal review which explored whether the competition had been conducted in adherence to the competition’s terms and conditions.
2. Weleda UK said they had a robust ‘one person one vote’ protocol in place and the votes were independently verified by a third-party agency to ensure voters did not make multiple entries. They said their agency had two security measures in place; only one vote was possible per email address, and there was a double opt-in as the voter had to supply their email address and was then sent an email with a link to verify their vote. The votes were also verified using a programme to ensure they had come from a real internet browser, and all votes were recorded with a timestamp and IP address, which were monitored for irregularities. They said that no suspicious votes were recorded for the votes for the UK finalist. Concerns were raised for the voting for another candidate in the top six places as there were a significant number of votes coming from one IP address in another country. However, it was concluded that these votes did not appear to be suspicious.
With regard to the assertion that Weleda employees were encouraging votes on social media for one candidate who had been a guest speaker at a Weleda event, they said that Weleda Advisors who had done so were not their employees, as they were self-employed and independent. They said their terms and conditions had been adhered to as their Advisors were considered as members of the public.
The CAP Code stated that closing dates must not be changed unless unavoidable circumstances beyond the control of the promoter 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 the original terms would not be disadvantaged by the change.
We understood that the mechanics of the competition, including the timing of the voting period, were administrated and overseen by the global Weleda team in conjunction with an agency. Weleda UK had made the decision to reopen the competition in the UK two days after the closing date, whilst the majority of the other participating countries did not reopen their voting. We acknowledged that the early closure of online voting for entrants at midnight on 9 September, which occurred in all participating countries, was an unintentional technical error. However, we considered, on balance, that the voting timings were in the advertiser’s control, and they ought to have ensured that this element of the competition was administrated correctly, particularly given the level of participation and commitment required by the entrants. Therefore, we did not consider that the reopening of voting and change to the closing date arose from unavoidable circumstances beyond the advertiser's control.
We noted that the original voting period was over four weeks, therefore the final day of voting, which was lost, had represented a small proportion of that time. Additionally, two entrants who were not initially in the top six places gained a number of votes when the voting was reopened, finishing in positions one and five. We considered entrants had been given insufficient notice by Weleda UK of the reopening of voting at 5 pm on 12 September, as it was communicated by email only a few hours prior to that time and on a weekday during business hours when entrants were likely to be working. We considered that reopening the voting in those circumstances could have disadvantaged those who sought to participate within the original terms of the competition because the short notice period did not provide all entrants with equal opportunity to gain further votes during the additional window of time; this may have reduced some entrants’ chances of finishing in the top six.
We considered that the change to the closing date caused by reopening the voting 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; we therefore concluded that the promotion had not been administered fairly and was in breach of the Code.
On that point the ad breached CAP Code (Edition 12) rules 8.1 8.1 Promoters are responsible for all aspects and all stages of their promotions. 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) and 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 8.17.4.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).
We understood that the global Weleda team had put into place measures to prevent individuals from submitting multiple votes and that the voting data was monitored for irregularities. In the instance in which multiple votes from the same IP address were identified, we agreed with the decision to count those votes once the irregularity had been investigated, based on the information provided on the reasoning for that decision. Therefore we considered that in that regard the competition had been conducted under proper supervision and Weleda UK had not given consumers justifiable grounds for complaint.
However, we had seen examples of Weleda Advisors encouraging the general public to vote for one of the entrants who had spoken at a Weleda event prior to the competition or stating that they had voted for that entrant, using personal Facebook accounts which were titled ‘Weleda Wellbeing Advisor’ or similar. While we noted that Weleda Advisors were self-employed, we considered that Weleda Advisors operating on social media under the company name would be understood by consumers to represent Weleda UK. As Weleda representatives had encouraged the public to vote for a particular entrant whom they were familiar with, we considered consumers were likely to understand that Weleda UK specifically endorsed that participant over other competition participants. We therefore considered that in that regard, Weleda UK had not been seen to deal fairly and honourably with participants and consumers had been given justifiable grounds for complaint.
Additionally, the Code stated that in competitions if the selection of a winning entry was open to subjective interpretation, an independent judge or a panel that included 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. We considered that the presence of an independent judge held particular importance in light of the circumstances of the competition, in which the voting had been reopened and as a result two entrants who were not previously in the group of six had moved into positions one and five. We understood that there was no independent member on the panel, which was comprised of three members of the UK Weleda team, appointed to select the UK finalists. The promotion had therefore breached the Code on that basis.
For those reasons we concluded that Weleda UK had not been seen to deal fairly and honourably with participants and had breached the Code.
On that point the ad breached CAP Code (Edition 12) rules 8.1 8.1 Promoters are responsible for all aspects and all stages of their promotions. 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), 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 8.26 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. (Prize promotions).
We told Weleda UK Ltd to ensure in future that they did not change the closing dates of competitions unless unavoidable circumstances beyond their 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 the original terms would not be disadvantaged by the change. Additionally, representatives of Weleda UK Ltd must not encourage voting for specific entrants when acting in a capacity under the organisation’s name, and an independent judge or panel member must be appointed if the winning entry of a competition is open to subjective interpretation.