Background
Summary of Council decision:
Three issues were investigated, of which two were Upheld and one was Not upheld.
Ad description
A story post and a post on influencers Molly-Mae Hague and Tommy Fury’s @mollymaison Instagram account, seen on 20 May 2022:
a. The story post featured an image of various items of homeware with superimposed text that stated, “TERMS AND CONDITIONS. How to enter: Like the giveaway post and comment; Follow @mollymaison_; Share the main page post to your story and TAG US so we can see for an extra entry … T&Cs. All items have been purchased independently and there is no affiliation to any of the brands included. Delivery of all items will be arranged by @mollymaison_ once the winner had been announced. This competition is only available to entrants based in the UK due to delivery [sic]. The winner will be selected via a RANDOM GENERATOR on Friday 3rd June at midnight and contacted via this page ONLY”.
b. The post on @mollymaison’s account, referenced in ad (a), featured an image of Molly-Mae Hague surrounded by various items of homeware. A caption accompanying the image stated, "IT’S THAT TIME AGAIN….GIVEAWAYYY. The least I can do to thank you all for helping me reach 1 million followers over here and following me on this journey! I’ve put together some of my favourite home essential and 1 lucky winner will receive ALL OF THIS!!!!. So the important bit … HOW TO ENTER: Like this post and comment!; Make sure you’re following @mollymaison_; Share this post to your story and make sure you TAG US for an extra entry!; Check the highlight titled “GIVEAWAY” for all the t&cs, good luck … Competition ends- 03/06/22 at midnight”.
Issue
The complainant, who believed that not all entrants were included in the ‘final draw’ and so did not have an equal chance of winning, challenged whether:
1. the prize was awarded in accordance with the laws of chance; and
2. the promotion was administered fairly.
3. The ASA challenged whether ad (b) breached the Code because it omitted a significant condition of the promotion.
Response
1., 2. & 3. Molly-Mae Hague’s representative explained that in order to determine the prize draw winner independently and fairly, a random comment selection software had been used to select a comment from those on the relevant post on @mollymaison’s Instagram account. The draw had been conducted at midnight on 3 June 2022. They explained that in order to select a winner, the Uniform Resource Locator (URL) for the relevant Instagram post had been entered into the software used. The winner selected by the software was then manually cross referenced with the original prize draw guidelines to ensure all conditions had been met.
Molly-Mae Hague said that due to Instagram’s restrictions for private accounts, they would not have been able to see mentions in Instagram stories posted by those accounts. They explained that those restrictions did not disqualify the private account from entering the prize draw, but they would have prevented the account making an additional entry into the draw. They said that this information had not been included in the prize draw terms and conditions as it was a standard feature of Instagram accounts.
Tommy Fury’s representative said they believed the competition had been administered fairly and had used a random number generator. They said they had been unable to determine whether someone with a private account had qualified for an extra entry into the prize draw. They believed the winner had been chosen fairly and in accordance with the laws of chance.
Assessment
1. Not upheld
The CAP Code required promoters of prize draws to ensure that prizes are awarded in accordance with the laws of chance and, unless winners were selected by a computer process that produced verifiably random results, by an independent person, or under the supervision of an independent person.
The complainant challenged whether the prize was awarded in accordance with the laws of chance because they understood the draw had not taken place live, so they could not see that a winner had been selected at random. The ASA understood that @mollymaison had used a piece of online software that could ascertain certain data, such as “likes”, comments, and tags, from the promotional Instagram post and from that data a potential winner was chosen at random. We understood that process had produced verifiably random results.
We therefore concluded the prize had been awarded in accordance with the laws of chance, and the promotion had therefore not breached the Code.
On that point, we investigated ads (a) and (b) under CAP Code (Edition 12) rules 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), 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), but did not find them in breach.
2. Upheld
The CAP Code required promoters to conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters were required to avoid causing unnecessary disappointment.
The promotion allowed entrants to qualify for a bonus entry by sharing the promotional post as an Instagram story. We considered those who shared the post would expect to increase their chances of winning the prize as a result. However, Molly-Mae Hague told us that because of the nature of “private” Instagram accounts, if an entrant with a private account had shared the promotional Instagram to their story, that would not have counted as an extra entry into the prize draw. We understood that meant if the post was shared as an Instagram story from a private account, it would not be possible for @mollymaison to identify whether the entrant had qualified for a bonus entry. We therefore considered those who had met the criteria for a bonus entry would not increase their chances of winning the prize by doing so.
For that reason, we concluded that the promotion was not administered fairly and therefore breached the Code.
On that point, ads (a) and (b) breached CAP Code (Edition 12) rules 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), and 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).
3. Upheld
The CAP Code required that marketing communications or other material referring to promotions must communicate all applicable significant conditions or information, where the omission of such conditions or information was likely to mislead.
Ad (a) stated the prize draw was only open to entries from UK-based consumers. However, that condition was not stated in the terms and conditions listed in ad (b). We considered that this information was likely to significantly influence consumers’ understanding of the promotion, and was important so that they could make an informed choice about whether or not to enter. We that reason, we concluded that the promotion had breached the Code.
On that point, ad (b) breached CAP Code (Edition 12)
18.17
18.17
Marketing communications may give factual information about product contents, including comparisons, but must not make any health, fitness or weight-control claims.
The only permitted nutrition claims are "low-alcohol", "reduced alcohol" and "reduced energy" and any claim likely to have the same meaning for the consumer.
and
18.17
18.17
Marketing communications may give factual information about product contents, including comparisons, but must not make any health, fitness or weight-control claims.
The only permitted nutrition claims are "low-alcohol", "reduced alcohol" and "reduced energy" and any claim likely to have the same meaning for the consumer.
7 (Significant conditions for promotions).
Action
We told @mollymaison, Molly-Mae Hague and Tommy Fury to ensure their future promotions did not claim to offer bonus entries if they were unable to identify all those who had qualified for an extra entry and that they would not be taken into account when drawing a winner. We also told them to ensure their future promotions did not omit significant conditions or information.
