Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
A prize promotion shown on www.homeraffler.com, seen on 30 June 2017, featured text that stated “WIN A LUXURIOUS LONDON HOME ?… With the help of Eventbrite you can now purchase tickets by using Credit and Debit Cards …? How to Enter To enter into this contest please either purchase ticket using the Payment Methods below or use the free posted entry option as instructed below. To enter successfully you must also correctly answer the following question: WHICH LONDON PARK IS THIS HOME LOCATED NEXT TO? A) Hyde Park B) Greenwich Park C) Victoria Park PAYMENT METHODS … Please be aware that the amount of tickets you want to purchase will be determined by the amount you transfer … FOR EXAMPLE: The cost of a single ticket is £5 therefore if you transfer £15 you will be entered into the contest 3 times … ? To participate via free entry please send a letter inside an envelope or on a postcard including your name, address, telephone number, email address (if applicable) and answer to our question by 1st class post to the following address … Please note, only one free entry will be entered into the contest per envelope or postcard received … Entries received after the contest deadline will not be included.
Towards the bottom of the page was further text that stated “By entering this contest you declare that you have read and agree to the terms and conditions of entry” and provided a link to the full terms and conditions.
Issue
The complainant, who worked in a compliance role within the promotions and competitions industry, challenged whether the competition breached the CAP Code because:
1. The ad did not include a closing date, which they noted from the terms and conditions could be extended at the advertiser's discretion by up to six months, or if a sufficient number of paid entries had been obtained before the deadline, the prize draw would be closed early; and
2. It did not make sufficiently clear that a cash substitute prize applied and that a 15% deduction would be made by the promoter before awarding it to the winner.
3. The ASA understood that the property would be awarded at the promoter’s discretion on whether they considered that they had obtained sufficient proceeds from paid entries and challenged whether that had been made sufficiently clear in the ad.
Response
homeraffler.com stated that the terms and conditions (T&Cs) to the prize promotion were available on the website.
1. In response to our enquiries, homeraffler.com amended the ad’s home page which now included the closing date for the prize promotion within the main body, located at the top of the page. Furthermore, a link to the T&Cs was also shown at the top of the home page (outside the main body).
2. & 3. homeraffler.com stated that if the number of paid entries received was not equal to the maximum required on the closing date, the draw would close and the proceeds would either be deemed sufficient to award the property as a prize at the discretion of the promoters, or the remaining funds would be allocated as a cash prize to a winner after the deduction of any expenses and marketing fees. homeraffler.com would be entitled to retain 15% of the entry fees to cover administration and marketing expenditure. The remaining balance following deduction of the 15% would then be classed as the prize fund and would then be given to the winner.
Assessment
1. Upheld
The ASA welcomed homeraffler.com amending the ad by including a prominent closing date (7 January 2018) within the main body of the home page, which was located at the top of the page. Nevertheless, it was a requirement under the CAP Code for promoters to provide a prominent closing date for submissions of entries. Therefore, given that the promotion had not initially disclosed a prominent closing date for submitted entries, it had breached the CAP Code in that respect.
We referred to the T&Cs governing the prize promotion. We noted that homeraffler.com could extend the closing date by up to six months and understood that this could apply if homeraffler.com had not received enough paid entries (575,000 at £5 per ticket). Furthermore, we understood that the T&Cs also permitted homeraffler to close the prize draw early if they received a sufficient number of paid entries. However, this was prohibited under the CAP Code, which stated that promoters could not change the closing date for a promotion unless unavoidable circumstances beyond their control made it necessary.
Therefore, because the prize draw did not disclose a prominent closing date for submitted entries and the fact that it could be changed based on the number of paid entries received, we concluded that it breached the CAP Code.
On this point the promotion breached CAP Code (Edition 12) rules 8.1 8.1 Promoters are responsible for all aspects and all stages of their promotions. and 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. (Promotional marketing), 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: 8.17.4.a 8.17.4.a A prominent closing date, if applicable, for purchases and submissions of entries or claims. Closing dates are not always necessary, for example: comparisons that refer to a special offer (whether the promoter's previous offer or a competitor's offer) if the offer is and is stated to be "subject to availability"; promotions limited only by the availability of promotional packs (gifts with a purchase, extra-volume packs and reduced-price packs) and loyalty schemes run on an open-ended basis nbsp; 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. (Significant conditions for promotions).
2. Upheld
We understood that the T&Cs allowed homeraffler to substitute the property for a cash alternative.
If the cash alternative prize was awarded, the T&Cs allowed homeraffler to retain 15% of that cash value to cover administration and marketing expenditure. We referred to the CAP Code and noted it stated that promoters had to award the prizes as described in the ad or reasonable equivalents. We noted in this case that the advertised prize was “A LUXURIOUS LONDON HOME” and understood this was located in Blackheath. We considered that an alternative cash prize whereby applicable deductions would be made prior to awarding it to the winner was not a reasonable equivalent to a “LUXURIOUS LONDON HOME”.
Notwithstanding the above, the CAP Code required promoters to make clear in their advertising whether they might substitute a cash alternative for any prize. However, we noted that this information had not been presented in the ad.
Therefore, because we considered that the cash alternative was not equivalent to the advertised prize described as a “LUXURIOUS LONDON HOME” and that such information had been omitted from the ad, we concluded that the promotion breached the CAP Code.
On this point the promotion breached CAP Code (Edition 12) rules 8.1 8.1 Promoters are responsible for all aspects and all stages of their promotions. and 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. (Promotional marketing), 8.15.1 8.15.1 Promoters must award the prizes as described in their marketing communications or reasonable equivalents, normally within 30 days. (Administration) and 8.28 8.28 Participants must be able to retain conditions or easily access them throughout the promotion. In addition to rule 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: prize promotions must specify on all marketing communications or other material referring to them, the following information, clearly before or at the time of entry, where the omission of any of the specified items is likely to mislead. and 8.28.2 8.28.2 whether the promoter may substitute a cash alternative for any prize (Prize promotions).
3. Upheld
We noted that the T&Cs stated that the property would be awarded at homeraffler’s discretion, based on whether they considered that they had obtained sufficient proceeds from paid entries. We considered that this was a significant condition to the promotion and should have been clearly presented in the ad. However, no such information was presented in the ad.
Because of that, we considered that the promotion had omitted a significant condition and therefore concluded breached the CAP Code.
On this point the promotion breached CAP Code (Edition 12) rule 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: (Significant conditions for promotions).
Action
The promotion must not appear again in its current form. We told homeraffler.com that their future promotions must disclose a prominent closing date for submitted entries and should not be changed unless unavoidable circumstances beyond their control made it necessary. Furthermore, they must ensure that they award the prizes as described in the ad or reasonable equivalents, which must include all significant conditions to the promotion.
CAP Code (Edition 12)
8.1 8.15.1 8.17 8.17.4.A 8.17.4.E 8.2 8.28 8.28.2
