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.
Promotions often have significant conditions, which should be stated up front on the initial marketing material. That can cause some difficulty for promoters who use media in which space is extremely limited, for example SMS, Bluetooth or banner ads.
Rule 8.17 lists significant conditions for all promotions; they should be stated in all material advertising the promotion. Key conditions 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? Are promotional packs likely to be available throughout the promotion?) and the promoter’s name and address. In short, any factor likely to affect the participant’s understanding of the offer or decision to participate should be clear at the outset. Those Ts & Cs should be available throughout the promotion (for example, on a website) or in a form retainable by entrants. In 2006, the ASA ruled that a prize draw mailing was misleading because important information included in the terms and conditions should have been stated prominently in the body copy but appeared only on the envelope, which recipients were unlikely to retain (HHS Trading (UK) Ltd, 20 June 2007).
Failure to state material Ts & Cs often generates complaints and the ASA has criticised promoters for not stating clearly costs associated with promotions (Cover Look, 30 January 2008, and Kenwood Travel Ltd, 23 April 2008). The ASA has taken the view that consumers would expect prizes to be free and rule 8.21.1 states that marketers should not falsely claim or imply that the consumer has already won, will win or will win if the consumer must incur a cost to claim the prize.
But prize promotions are not the only promotions that need to be transparent when it comes to stating costs. In 2006, the ASA criticised a newspaper for not stating clearly enough that a claim on a front-page flash was a buy-one-get-one-free offer (Express Newspapers plc, 6 September 2006). And, in 2007, the ASA ruled that press and poster ads for Orange's Magic Numbers promotion were misleading because they did not inform consumers that a minimum monthly top-up fee applied. The ASA considered that that was a significant condition of the promotion, one that could affect a consumer's decision to take up the offer, and concluded that the ads were likely to mislead (Orange Personal Communications Services Ltd, 28 March 2007).
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 prizewinners 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.
Rule 8.18 states that "[M]arketing communications that include a promotion and are significantly limited by time or space must include as much information about significant conditions as practicable and must direct consumers clearly to an easily-accessible alternative source where all the significant conditions of the promotion are prominently stated. Participants should be able to retain those conditions or easily access them throughout the promotion."
Online promotions are often limited by space and the Copy Advice team advises that not all terms and conditions need to be stated in the initial ad. If readers can click through to more information, it is probably acceptable to relegate less important conditions to information one or two clicks away.
Promoters who offer vouchers, either as gifts or prizes, should ensure that significant conditions are stated upfront. That applies to all vouchers, not just the more common holiday and travel vouchers. For example, if a scratchcard promotion offers shopping vouchers that are redeemable only through specific outlets, that should be stated in the Ts & Cs. Closing dates for holiday travel vouchers should be stated. The terms and conditions should state the value of individual vouchers if more than one is offered and should state whether a minimum spend is required to realise the full value of the vouchers.
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