Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Marketers must make clear if stocks are limited. Products should not be advertised unless marketers can demonstrate that they have reasonable grounds for believing that they can satisfy demand. If a product becomes unavailable, marketers will be required to show evidence of stock monitoring, communications with outlets and swift withdrawal of marketing material whenever possible (Rule 3.29).
Products that cannot be supplied should not normally be advertised as a way of assessing potential demand unless it is clear that this is the purpose of the marketing communication (Rule 3.28.2). Switch selling is unacceptable (Rule 3.30).
Promoters should be able to show that they have made a reasonable estimate of likely response and that they are capable of meeting that response (Rule 8.9). Phrases such as “subject to availability” do not relieve promoters of the obligation to take all reasonable steps to avoid disappointing participants (Rule 8.10).
If promoters are unable to supply demand for a promotional offer because of an unexpectedly high response or some other unanticipated factor outside their control, participants should be offered a refund or a product of a similar or greater quality and value (Rules 8.12 and 9.5.1 and ASA decision: Condé Nast Publications t/a Glamour, 4 July 2001).
Purchase-dependent promotions such as token-collect schemes are not allowed to ‘cap’, i.e. limit, the number of gifts available to consumers. Promoters, particularly publishers, often offer a limited number of promotional items, e.g. 100 videos, to the first readers to respond. Because the immediate response to such offers usually exceeds the number of promotional items, promoters have to randomly pick those who will receive the items. Consequently, speed of response is not the only determinant as to who receives the items. Promoters should not make ‘entry’ to such limited offers dependent upon purchase (that could render the promotion an illegal lottery). However, the CAP Sales Promotion & Direct Response Panel at its 9 November 1999 meeting felt that promoters would not breach Clause 35.2 of the 10th edition of the Code (now replaced by Rule 8.11) if consumers purchased a newspaper unaware that doing so gave them the chance to ‘enter’ for the limited promotional items (there should, though, be no ‘allurement’ in the form of, for example, a front page flash). In practice, most publishers running limited offers simply say “write to us” or “ring us” and readers need not purchase the title.
Last modified : 29 June 2010