Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
Two prize promotions on a social media network:
a. The post for the first promotion stated "@HardRockLondon A cheeky #WinWednesday for you - tell us your dream Burger topping to #WIN a meal for 2 @HardRockLondon #HappyHumpDay".
b. The post for the second promotion stated "@HardRockCafeMRC RT & follow @HardRockCafeMCR to win this T signed by @Slash & tix to see him @Phones4uArena #Manchester 28 Nov!"
Issue
The ASA received three complaints. The complainants, all three in relation to promotion (a) and one in relation to promotion (b), challenged whether:
1. significant conditions of the promotions were omitted from the posts;
2. terms and conditions of the prize promotions should have been provided; and
3. the prizes had been awarded in accordance with the laws of chance by an independent person or by a computer process which produced verifiably random results.
Response
1. & 2. Hard Rock Cafe (UK) Ltd stated that they operated the promotions under US or global guidelines for Twitter usage and best practices, and stated that terms and conditions were not compulsory in these markets. They explained that they did not include terms and conditions because of the limited number of characters, which contributed to their difficulty in conveying brand and contest messaging. They stated that they had officially halted Twitter prize promotions across all of their Cafes until such time that they had addressed the requirements of the CAP Code.
In regards to promotion (a), Hard Rock Cafe acknowledged that the closing date for this promotion was not stated and they had since drawn another winner at random, which was subsequently announced on their Twitter feed.
With regards to promotion (b), Hard Rock Cafe provided screenshots of a number of tweets that showed the provision of the closing date, the date on which the winner would be announced, and that a winner was drawn. The screenshots also showed a tweet for the promotion, dated 16 November 2014, in which the participants were instructed to "RT & Follow to win", immediately followed by another tweet explaining that the winner would be selected at random. Hard Rock Cafe stated that the winner was notified privately via direct messaging on Twitter and the winner's tweet in which he thanked them was later retweeted by Hard Rock Cafe on their feed.
3. Hard Rock Cafe stated that all of their Cafes used www.randomizer.org to generate winners from the total number of entries they received for their prize promotions. However, they did not hold documentary evidence to demonstrate this in this instance.
Assessment
1. Upheld
The ASA understood that the complainants were concerned that the ads for both promotions (a) and (b) did not specify details of the prize promotions, including entry requirements for the promotion; the nature and number of the prizes on offer, for example what the meal for two would consist of in promotion (a) or the number of tickets available for the concert in promotion (b); the closing date for submission of entries; and any applicable age restrictions on entry.
We noted that the above listed details were significant conditions that were likely to influence consumers' understanding of these promotions and their decision to participate, and therefore considered that these should have been made clear before or at the time of entry. We were satisfied that the ads set out the basic entry requirements for both promotions, namely "tell us your dream Burger topping" for promotion (a) and "RT & follow @HardRockCafeMCR to win" for promotion (b).
We acknowledged Hard Rock Cafe's comments in regards to the limited number of characters available in a tweet. However, we noted that promotion (a) did not specify, either in the tweet identified or through any other means, the applicable significant conditions, aside from the basic entry requirements.
Further, we noted that the tweets shown in the screenshots provided in regards to promotion (b) were dated 16, 22 and 24 November. Although the tweets shown in the screenshots included some of the significant conditions listed above, we noted that these tweets post-dated the original ad that the complainants saw on 13 November. We considered that it was insufficient to present these significant conditions after the commencement of the promotion.
For the above reasons, we considered that the significant conditions of both promotions (a) and (b) had not been adequately communicated before or at the time of entry and concluded that they were in breach of the CAP Code.
On this point, the promotions breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading Advertising),
8.2
8.2
Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment.
(Sales Promotions),
8.14
8.14
Promoters must ensure that their promotions are conducted under proper supervision and make adequate resources available to administer them. Promoters, agencies and intermediaries should not give consumers justifiable grounds for complaint.
(Administration),
8.17
8.17
All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. Significant conditions or information may, depending on the circumstances, include:
and
8.18
8.18
Marketing 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.
(Significant Conditions for Promotions).
2. Upheld
We noted the complainants' concerns that certain conditions of the promotions had not been specified, such as how and when winners would be notified, and when the results would be made available. However, these were conditions specific to prize promotions that should have been specified before or at the time of entry and that participants should have been able to retain or easily access them throughout the promotion, as required by the CAP Code.
We noted that the post for promotion (a) did not state the conditions listed above, nor did it indicate that terms and conditions would apply. Also, there was no signpost included which directed consumers to an alternative source where they were able to easily access these conditions.
In regards to promotion (b), we noted that the initial tweet dated 13 November did not make clear how and when the winner would be notified and when the results would be made available, nor indicate that terms and conditions would apply. Although the evidence provided by Hard Rock Cafe demonstrated that these conditions were presented in two tweets dated 22 November, we considered that these should have been conveyed to consumers before or at the time of entry, as well as being made available throughout the promotion.
On the basis that the terms and conditions of both prize promotions (a) and (b) had not been communicated to consumers before or at the time of entry and made easily accessible throughout the promotion, we concluded that the promotions were in breach of the Code.
On this point, the promotions breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading Advertising),
8.2
8.2
Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment.
(Sales Promotions),
8.14
8.14
Promoters must ensure that their promotions are conducted under proper supervision and make adequate resources available to administer them. Promoters, agencies and intermediaries should not give consumers justifiable grounds for complaint.
(Administration),
8.28.4
8.28.4
how and when winners will be notified of results
8.28.5
8.28.5
Promoters must either publish or make available on request the name and county of major prizewinners and, if applicable, their winning entries except in the limited circumstances where promoters are subject to a legal requirement never to publish such information. Promoters must obtain consent to such publicity from all competition entrants at the time of entry. Prizewinners must not be compromised by the publication of excessive personal information
and
8.28.6
8.28.6
in a competition, the criteria and mechanism for judging entries (for example, the most apt and original tiebreaker)
(Prize Promotions).
3. Upheld
We noted Hard Rock Cafe's comments that they used www.randomizer.org to select winners at random for both promotions. However, we had not seen documentary evidence to demonstrate that the prizes were awarded in accordance with the laws of chance by an independent person or by a computer process that produced verifiably random results. On this basis, we concluded that the promoters had not demonstrated that the promotions had complied with the relevant rules and therefore breached the Code.
On this point, the promotions breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(Misleading Advertising),
8.2
8.2
Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment.
(Sales Promotions),
8.14
8.14
Promoters must ensure that their promotions are conducted under proper supervision and make adequate resources available to administer them. Promoters, agencies and intermediaries should not give consumers justifiable grounds for complaint.
(Administration) and
8.24
8.24
Promoters of prize draws must ensure that prizes are awarded in accordance with the laws of chance and, unless winners are selected by a computer process that produces verifiably random results, by an independent person, or under the supervision of an independent person.
(Prize Promotions).
Action
The ads must not appear again in their current form. We told Hard Rock Cafe (UK) Ltd to ensure that significant conditions were clearly communicated before or at the time of entry; that all other conditions must be made available before or at the time of entry, such that they could be retained or easily accessed throughout the promotion. We also told Hard Rock Cafe (UK) Ltd to ensure that future prizes were awarded in accordance with the laws of chance and by an independent person or under the supervision of an independent person, or that the winners were selected by a computer process that produced verifiably random results.
CAP Code (Edition 12)
3.1 3.3 8.14 8.17 8.18 8.2 8.24 8.28.4 8.28.5 8.28.6
