ASA Rulings Recap October 2021
Whilst recent Advertising Standards Authority rulings have focused on influencers, their latest cases highlight where brands are still getting the basics wrong. Emily Vickers, Paralegal at PromoVeritas, looks at how obvious tasks such as failing to award prizes and not fairly picking winners are getting brands into big trouble.
An Instagram post in February included the captions “VALENTINES GIVEAWAY Would you LOVE to win all these V-Day goodies” and “Including a Cartier Love Ring, A BRAND NEW Dyson Airwrap Styler, £5,000 CASH, a £500 PLT wardrobe AND a beauty bundle worth over £100”, “All you have to do to enter is”, “Double Tap & Save this post”, “Tag your best Galentines”, “Comment [heart emoji] on ANY post”, “BONUS: Share on your story”, “Enter as many times as you want”, “Must be following @prettylittlething to enter” and “Ends 11:59pm GMT February 14th”.
The complainant believed that it was not possible for the promoter to track who had fulfilled the promotion’s entry conditions, challenging whether the promotion was administered fairly.
PrettyLitteThing.com Ltd said that they used an independent third-party website which could download a range of data from Instagram posts which allowed them to produce verifiable random results and select a winner. They took additional steps to check the eligibility of the chosen winner by manually checking that all entry requirements had been satisfied before awarding the prize.
UPHELD – the CAP Code requires promoters to conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters are required to avoid causing unnecessary disappointment. The CAP Code also requires promoters to ensure that prizes are awarded in accordance with the laws of chance, and unless winners were selected by a computer process that produced verifiably random results, this was done by an independent person, or under the supervision of an independent person.
CAP Code Rules 8.2 – Promotional marketing, 8.14 – Administration and 8.24 – Prize promotions.
Lessons to be learnt:
Whilst the ASA understood that PLT had a computer program to download certain data and would then choose the winner randomly, they were not certain which data the program downloaded or the other entry requirements that entrants had fulfilled. The ASA acknowledged that they could ask the potential winner to show they had fulfilled the other criteria, they considered it important that a promoter was able to independently verify that the conditions for entry were met.
The ASA also considered the route for a bonus entry but concluded that those who had met the criteria for a bonus entry would not increase their chances of winning the prize by doing so. The ASA concluded that the promotion was not fairly administered and breached the code.
A competition which featured on East Midlands Railways’ website earlier this year invited members of the public to submit ideas to help them ‘Build Back Better’, with the winner awarded £5,000.
The complainant who understood that the competition was cancelled, challenged whether it breach the CAP Code.
Abellio said that the competition was a contractual obligation which had been agreed prior to the Covid-19 pandemic, and whilst they had not planned on running the competition under the circumstances, they decided to go ahead with it hopeful that it would generate innovative ideas. They said they received a high number of entries but that they were of a poor quality and that at that point they had started to see the financial impact of the pandemic on UK rail services, which led them to withdraw the competition. Whilst they acknowledged that this would likely cause disappointment to the entrants, they felt they had acted within the terms of the competition which stated they had a right to cancel at any point.
UPHELD – The CAP Code states that promoters must conduct their promotions equitably, promptly, and efficiently, be seen to deal fairly and honourably with participants, and avoid causing unnecessary disappointment. The Code requires promoters to ensure that their promotions are conducted under proper supervision, that they made adequate resources available to administer them, to avoid giving consumers justifiable grounds for complaint. The Code also requires promoters to award prizes as described in their marketing communications, or reasonable equivalents, and stated that withholding prizes was justified only if participants had not met the qualifying criteria set out clearly in the rules of the promotion.
Whilst the ASA acknowledged that the terms and conditions of the promotion stated that they could cancel the competition, they did not absolve the advertiser of their obligation to comply with the Code. Including clauses in the terms and conditions which flout the rules does NOT protect the brand. The ASA recognised the impact of Covid-19 but the competition was launched in February 2021, nearly a year into the pandemic Abellio could have anticipated challenges that might arise before deciding to go ahead.
The competition was cancelled, and the prize of £5,000 was not awarded. The fact that Abellio had not identified any ideas that they considered would be suitable would not have prevented them from awarding the prize to the idea chosen to be the best by the judges, and the terms and conditions did not set out what would happen if none of the ideas could be implemented. The terms and conditions stated “ideas must be realistic and achievable and able to be implemented quickly and easily by the promoter”. The ASA considered that the criteria of the promotion were not clearly set out. We also need to be mindful of this when we draft terms and conditions.
CAP Code Rules 8.2, 8.14, 8.15.1, 8.26, 8.27 and 8.28.6 – Promotional marketing.
Lessons to be learnt:
The Code states that if the selection was open to subjective interpretation, a demonstrably competent, independent judge, or a panel that included one independent member, must be appointed. This had not been done. By cancelling the competition for the reasons given and not awarding the prize, Abellio had not dealt fairly with participants and had caused unnecessary disappointment, in turn breaching the Code.
Ads appeared on their Instagram, Facebook and Twitter channels promoting a prize draw to win a washing machine.
One complainant believed that the three ads on Facebook, Instagram and Twitter related to the same promotion but that it was not possible to combine all the entrants into a single draw, and so challenged whether the promotion was administered fairly.
Hughes said that each of the ads related to the same promotion and outlined their winner selection process and that for each of the mechanisms they would then confirm the selected winner had qualified for the competition.
UPHELD – The CAP Code requires that promoters ensure prizes are awarded in accordance with the laws of chance, and unless winners were selected by a computer process that produced verifiably random results, by an independent person, or under supervision of an independent person. The complainant challenged whether the prizes were awarded in accordance with the laws of chance, they understood there was no way of combining entrants from across all platforms and selecting a winner at random. The ASA did note that Hughes had a system in place for selecting a prize winner which used a computer process that produced verifiably random results.
CAP Code Rules 8.2 – Promotional marketing, 8.4 – Administration, 8.17 and 8.17.1 – Significant conditions for promotions
Lessons to be learnt:
All of the examples this month clearly have similar lessons that can be drawn from. Whilst new rules are coming in regarding influencers and ‘green claims’ it is important that promoters and brands ensure that they continue to remember the basics of running promotions, ensuring they run promotions fairly and in accordance with the CAP Code.