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Privacy statement - Terms and conditions

prize promotions - information requirements

21 November 2012

Marketers reminded to provide significant information at the ‘crucial point’ when running a sales promotion

The Advertising Regulator’s advisor arm has recently issued updated guidance in relation to Sales Promotions. In releasing the updated guidance, it very correctly points out that failing to provide significant information at the crucial point is likely to cause unnecessary disappointment. Further, that it’s worth remembering that sales promotions that result in a consumer having cause to complain and the ASA upholding the complaint not only breaches the [Advertising] Code but undermines one of the very reasons to run a sales promotion: spreading positive awareness of a brand or product.

Background

As most marketers will know, the Advertising Code requires “significant terms” of a promotion to be provided to consumers before purchase or, if no purchase is necessary, before they enter the promotion.

The Advertising Regulator (the Advertising Standards Authority (“ASA”)) generally interprets this as meaning that significant T&Cs should be stated in the initial marketing material.

What are “significant” terms?

Significant terms include: how to participate; start date (if applicable); closing date; proof of purchase; the nature and number of any prizes; the existence of restrictions or limitations (for example, do participants have to be over 18?) and the promoter’s name and address.

However, this list is not exhaustive. Essentially, when advertising a sales promotion or offer, promoters must make clear at the outset any factor that is likely to affect the participants understanding of the offer or decision to participate. These factors will change depending on the circumstances of the promotion. For this reason, it is imperative that promotions are carefully considered as separate and distinct each time.

What if there is not enough space?

If the initial ad is severely restricted by time or space it must include “as much information about significant conditions as practicable”.

In online marketing communications it may be considered sufficient to have conditions of entry one click away from the display, banner or tweet ad.

The ASA will take account of the medium used. Complaint made about a series of tweets by Rio Ferdinand was rejected because the ASA considered the significant T&Cs were clear.  This makes it clear that a ‘trailer’ tweet to followers may be acceptable in some circumstances and that significant conditions of a promotion can be included in a tweet.

However, a fellow tweeter fell foul of the Code by failing to include a closing date. The ASA considered this a significant condition.

It is worth noting that in relation to traditional media there may be circumstances where limited space available precludes it from being an appropriate medium to advertise a complicated competition. In these circumstances advertisers are advised to consider more general trailer copy such as ‘go to our website for all our prize draws and special offers’.

What about other T&Cs?

Less significant conditions should be available before or at the time of entry but do not need to be given as much prominence; they might, for example, be stated on an in-store leaflet, accompanying literature or, if entry is by a website, on the promoter’s home page.

They include (but are not limited to): how and when winners and results will be announced; when prize winners will receive their prizes (if more than 30 days after the closing date); whether there is a cash alternative and any restriction on the number of entries.

One area that is often overlooked on T&Cs is where promoters offer vouchers, either as gifts or prizes. Promoters must ensure that significant conditions in relation to use of such vouchers are stated upfront. This applies to all vouchers, not just the more common holiday and travel vouchers. For example, if a promotion offers shopping vouchers that are redeemable only through specific outlets, that should be stated in the T&Cs.

What if a requirement is not in the T&Cs?

On occasion a promoter may attempt to withhold a prize on the basis that a “winner” has acted inappropriately in relation to a promotion. This has become more common with the rise of online promotions such as those requiring votes or offering free entry because they can be particularly open to abuse.

Recently, a promoter disqualified a participant because it considered she had unfairly canvassed votes.  Notwithstanding its view that canvassing for votes was commonplace on social media sites, the ASA upheld the complaint because the T&Cs did not state that such behaviour was prohibited and would lead to disqualification.  It is important to remember that promoters cannot create and enforce T&Cs retrospectively and it is incumbent on them to ensure that they state clearly how participants should behave.

If you have any queries in relation to any of the above, or would like advice in relation to your promotion or indeed any of your advertising and marketing related issues, please do not hesitate to contact Laura MacKenzie on +44 (0)121 237 3959.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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