Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A website for HMV Competitions, www.hmvcompetitions,co.uk, advertising a prize draw for a house, seen on 4 September 2017, was headed "HMV PRIZE COMPETITIONS - Win Houses, Motors and Valuables". Highlighted text stated "BUY TICKETS". Other text stated "Buy your ticket now - you really do stand to 'Win a lot for not a lot' and the tickets are just £5, less than a bottle wine, a round of drinks or a packet of cigarettes". Text further down the page stated "ENTER THE COMPETITION FOR FREE VIA POST - Send your entry on a postcard to: HMV Competitions [postal address followed]".
Issue
1. The complainant, who believed the closing date of the prize draw was changed, challenged whether it had been administered fairly.
2. The ASA challenged whether the free route to enter the draw was sufficiently prominent.
Response
1. HMV Competitions said that when they took the decision to extend the closing date, their only other option was to cancel the whole draw and refund participants. They said had they done that, no one would have won and none of the charities set to benefit would have done so. They did not believe anyone had been disadvantaged by the delay and said the terms and conditions, which participants were required to tick to confirm they had read and agreed with, stated that there was an option to extend the draw date.
2. HMV Competitions believed their website had a natural flow to explain how the competition worked and the benefit of being able to vote for a charity. The charity details were then given and they considered the free entry route was shown prominently and directly below that. They said entrants needed to scroll down to see the charities in order to vote and would therefore have been made aware of the free entry route. HMV Competitions said they had also published social media posts to publicise the free entry route. They said a significant proportion, more than 10%, of the entries they received were postal, which they believed demonstrated that the information about the free entry route was sufficiently prominent.
Assessment
1. Upheld
The CAP Code stated that closing dates must not be changed unless: unavoidable circumstances beyond the control of the promoter made it necessary; to not to change the date would be unfair to those who sought to participate within the original terms; or those who sought to participate within the original terms would not be disadvantaged by the change. In this case, a post on HMV Competitions' Facebook page dated 1 October explained that a decision had been taken to extend the closing date to allow the full 20,000 tickets to be sold. A further update dated 12 December stated that ticket sales had not been as high as anticipated, "so the good news is: You have a much greater chance of winning! However, under the terms and conditions of the competition, the prize will not be as high since we did not reach the target of 10,000 ticket sales. The grand prize of £7,000 cash will be drawn at 2pm tomorrow, 13 December ...". Another update on 19 December showed the winner being presented with a cheque. Text stated that the winner "... originally saw the feature in The Sun in October and meant to buy a ticket then but forgot until the last few weeks".
We considered it was the duty of the competition promoter to ensure that those who sought to participate within the original terms were not disadvantaged and to award the prize as described, or a reasonable equivalent, and not to devise terms and conditions that could be changed to suit the promoter if the competition did not progress as anticipated. In this case, not only did the extension of the closing date reduce the odds of winning for those who sought to participate by the original closing date (with the winner in fact being someone who participated after the original closing date), but the prize was also reduced from a house to £7,000 cash. Although the terms and conditions allowed for this, these were nevertheless changes brought about at HMV Competitions' own choosing rather than circumstances that were beyond their control. Because the terms of the promotion, including the closing date, were liable to change due to factors that were not unavoidable circumstances beyond the control of the promoter, we concluded that the ad was in breach of the Code.
On that point the ad breached CAP Code (Edition 12) rule 8.17.4.e 8.17.4.e Closing dates must not be changed unless unavoidable circumstances beyond the control of the promoter make it necessary and either not to change the date would be unfair to those who sought to participate within the original terms, or those who sought to participate within the original terms will not be disadvantaged by the change. (Promotional marketing).
2. Upheld
The CAP Code stated that promotions must communicate all applicable significant conditions or information where their omission was likely to mislead. The Code cited free-entry route explanation as significant and stated that any free-entry route should be explained clearly and prominently. We considered that, where they appeared at the bottom of the web page, the instructions for entering by post were fairly prominent. However, the instructions for entering by post were separated from the links where participants could buy tickets and choose a charity. The links were in turn followed by the text "WHAT ARE YOU WAITING FOR? LET'S GET STARTED WITH THE COMPETITION"; a prominent visual device showing the text "BUY TICKETS" across two paper tickets and the logos of the three charities that participants could choose from. We considered, therefore, that participants could easily miss the free entry route and that it was not sufficiently prominent. We therefore concluded that the ad was misleading.
On that point the ad breached CAP Code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
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) and
8.17.2
8.17.2
Free-entry route explanation
Any free-entry route should be explained clearly and prominently
(Promotional marketing).
Action
The promotion was no longer appearing. We told HMV Competitions to ensure that, in any future promotions, any free-entry route was explained clearly and prominently and that closing dates were not changed unless unavoidable circumstances beyond the control of the promoter made it necessary.
