Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
A page on a website for Elite Competitions, www.elitecompetitions.co.uk, for prize competitions, seen in November 2019, titled “30,0000 GIVEAWAY”. The page included a countdown timer. On 14 November 2019 the countdown timer stated “COMPETITION CLOSES IN 02 Days 01 Hours 15 Minutes 37 Seconds”. Larger text underneath the countdown timer gave the price of the ticket - £25 - and included a button to choose the ticket.
On 15 November 2019 the same countdown timer on the same competition said that it would close in 6 days, 4 hours, 34 minutes and 10 seconds. Text stated “TICKET SALE PRICE: £25.00 £22.00”. Further down, the page included a list of prizes: “1st - £10,000 Tax Free Cash 2nd - £5,000 Tax Free Cash 3rd - £5,000 Tax Free Cash, 4th - £5,000 Tax Free Cash 5th - £5,000 Tax Free Cash”. Underneath, text stated “Free delivery to winner see terms and conditions for free entry method … *If all of the tickets the competitions [sic] does not sell out by the time the countdown timer reaches zero, an additional 7 days will be added on to the countdown timer. If all of the tickets have not sold after the first extended time period, a 7 day extension will be added up to a maximum of 4 times. If all tickets have not been sold after 4 extensions of 7 days, a cash alternative prize of 70% of tickets sales will be awarded to the winner instead of a prize.”
Issue
The ASA received two complaints, one from a member of the public and one from a solicitor specialising in regulation and compliance in the gaming and betting industry:
1. Both complainants challenged whether the promotion breached the Code because the free entry route was not explained clearly or prominently.
2. One complainant challenged whether the promotion breached the Code because the closing date was extended.
3. One complainant, who understood that if enough tickets were not sold a cash alternative of 70% of ticket sales was given, challenged whether the promotion breached the Code because 70% of ticket sales was not equivalent to the value of the prize.
Response
Hydro Solutions Fylde Ltd t/a Elite Competitions acknowledged the complaint but did not provide a substantive response.Assessment
The ASA was concerned at Hydro Solutions Fylde Ltd t/a Elite Competitions’ lack of substantive response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule 1.7 (Unreasonable delay). We reminded them of their responsibility to provide a substantive response to our enquiries and told them to do so in future.
1. Upheld
The CAP Code stated that all marketing communications referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information was likely to mislead. Significant information could include information about any free entry route, which should be explained clearly and prominently. The ASA considered that the free entry route was significant information that consumers should have been made aware of so that they could make an informed choice about how to enter the promotion. The free entry route should therefore have been explained clearly and prominently.
The ad stated “see terms and conditions for free entry method” at the bottom of the page but did not include any other information and did not include a link to the terms and conditions page. On the terms and conditions page the free entry method was stated within a long series of terms and conditions. We considered that including information about the free entry route only in the terms and conditions was not sufficiently prominent.
We therefore concluded that the ad was misleading and breached the Code. On that point the promotion breached CAP Code (Edition 12) rules
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
8.17.2
8.17.2
Free-entry route explanation
Any free-entry route should be explained clearly and prominently
(Significant conditions for promotions).
2. Upheld
The CAP Code stated that closing dates for promotions must not be changed unless unavoidable circumstances outside the control of the advertiser made 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 would not be disadvantaged by the change. The ad stated that if all tickets were not sold then the closing date would be extended by seven days, and that that extension would be repeated up to four times if all tickets still had not been sold. However, we considered that not selling all available tickets did not constitute unavoidable circumstances outside of the advertisers’ control that made it necessary to extend the closing date even once. The statement that had been included in the ad did not release the advertiser from complying with the requirements of the Code in relation to the extension of promotion closing dates. We therefore concluded that on that point, the ad breached the Code.
On that point the promotion breached CAP Code (Edition 12) rules
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
8.17.4
Closing date
and
8.17.4
8.17.4
Closing date
(Significant conditions for promotions).
3. Upheld
The CAP Code stated that promoters must award the prizes as described in their marketing communications or reasonable equivalents. The ad stated that the prizes were “1st - £10,000 Tax Free Cash 2nd - £5,000 Tax Free Cash 3rd - £5,000 Tax Free Cash, 4th - £5,000 Tax Free Cash 5th - £5,000 Tax Free Cash”. In that context we considered the incentive for entering the promotion was to win a cash prize of £10,000 or £5,000. We considered that any promoter who needed to generate sufficient revenue from the competition to fund the advertised prizes was likely to breach the Code if they failed to sell the requisite number of tickets. We considered that a prize consisting of 70% of ticket sales was not a reasonable equivalent to the first prize of £10,000 or the second, third, fourth and fifth prizes of £5,000.
We acknowledged that the ad stated that if all tickets were not sold (after a number of extensions to the closing date) then the winner would receive 70% of ticket sales instead of the advertised prize. However, we considered that was not sufficient to dispel the impression created by the ad that the purpose of entering the competition was to be in with a chance of winning £10,000 or £5,000. Because a prize of 70% of ticket sales was not a reasonable equivalent to the advertised prizes, we concluded that the promotion breached the Code.
On that point the promotion breached CAP Code (Edition 12) rule
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).
Action
We told Hydro Solutions Fylde Ltd t/a Elite Competitions that their future promotions must include a clear and prominent explanation of any free entry route. We also told them that they must not change the closing date for promotions unless unavoidable circumstances beyond their control made 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 would not be disadvantaged by the change. They also must ensure that they awarded the prizes as described in their marketing communications, or reasonable equivalents. We referred Hydro Solutions Fylde Ltd t/a Elite Competitions to the CAP compliance team.
CAP Code (Edition 12)
8.15.1 8.17 8.17.2 8.17.4 8.17.4.E
