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.
To ensure promotions are administered properly and participants have confidence in their integrity, the sales promotion rules require both prize draws and competitions to have the input of an independent party. Rule 8.24 states “Promoters of prize draws should ensure that prizes are awarded in accordance with the laws of chance and under the supervision of an independent observer”. Rule 8.28.6 states “If the selection of a winning entry [for a competition] is open to subjective interpretation [for example, judging of a tie-breaker or an art competition], an independent judge, or a panel that includes one independent member must be appointed …”.
Traditionally, the Copy Advice team recommended that both independent judges and independent observers should be demonstrably impartial and free of: commercial considerations; the running of the promotion; the awarding of the prizes and the prize winners. We suggested that people who might fit those criteria could be Trading Standards officers, auditors, solicitors, someone from the promoter’s trade association or similar. Of course, it is not overly onerous for promoters to ensure a prize draw is independently supervised: marketers can use the proverbial “man in the street” but judges of competitions and the like, who need to be both competent to judge and independent, are sometimes more difficult to find.
The ASA receives very few complaints about independent judges or observers. In 2006, the ASA ruled that a prize draw for the chance to become a Big Brother housemate had not been adequately supervised. Although it ruled against the promotion because an independent observer was not present throughout the drawing process, the ASA implicitly accepted that an observer from the Electoral Reform Services was suitably independent (Nestle UK Ltd, 13 September 2006).
In 2007, the ASA investigated a complaint about a website-run music competition. It concluded that the promotion did not have an independent judge because the judging was done by the promoter and the sponsor who provided the prize (Bandwagon Digital Ltd, 25 July 2007). About a year later, it ruled on a complaint about another internet competition but this time the promoter was able to satisfy the ASA that two of the three judges it used were independent: one was an editor of a national newspaper and the other was the chairman of an unrelated trade association (Bradford & Bingley plc, 9 July 2008).
Sometimes a judge or observer is obviously independent but often the distinction is blurred. Could, for example, a local newspaper competition to write the best news article be “independently” judged by that newspaper’s editor? In 2007, the Sales Promotion and Direct Response (SPDR) Panel considered both independent judges and independent observers.
The Panel recognised that getting an independent observer to witness or supervise a prize draw was less onerous on the observer than on a judge who might be expected to have ‘judged’ several hundred entries. The Panel considered it was reasonable for some filtering of entries to be done by, say, a handling house (for example, tie-breakers that were longer than the required length). Filtering that went beyond excluding entries that did not meet entry criteria was likely to be acceptable as long as the independent judge agreed to the process by which entries would be filtered.
Beyond that, the Panel decided that independent observers or competition judges should not have a contractual relationship with the promoter or work for a company that has a contractual relationship with the promoter if the nature of the contractual relationship could compromise their independence. The Panel believed that, for promotions carried by publications, staff who had been involved in designing, negotiating or administering the promotion could be conflicted. Because the editorial and promotional departments of publications were often separate, independent judges or observers could be editorial staff who would not necessarily be compromised by a commercial arrangement between their publisher and the promoter.
The Panel’s definition would not necessarily exclude individuals or companies, such as lawyers, auditors, advisors, accountants or respected trade bodies, with a normal contractual relationship with the promoter or people or companies that were paid a fee to act as the independent observer if they could demonstrate their independence.
This advice is designed to be read in conjunction with the Sales Promotion section of the CAP Code and the other entries in this advice section. Also, promoters might want to seek legal advice.
Last modified : 10 January 2012