Ad description
A promotion on Twitter by Nike offered as the prize the opportunity to purchase a pair of shoes. The Tweet stated “The Draw for the @nikesportswear @Roc_A_Fella Air Force 1 ‘Roc-a-Fella’ is now open until 10:30 a.m. ET in [image of US flag]” and included an image of the shoe.
Issue
The complainant, who was informed that they had won, but had not received the shoes, challenged whether the promotion had been administered fairly.
Response
Nike European Operations Netherlands B.V. said the outcome for the complainant was unfortunate but was not brought about by inadequate operation of the promotion by Nike.
Nike explained that the promotion was run on 30 November 2017. In line with the terms and conditions, the complainant won the opportunity to purchase the shoes and their card was automatically charged for the purchase price. The shoes were then promptly dispatched using their standard distribution channel on 30 November 2017.
On 18 December 2017, Nike were notified that the complainant had not received the shoes. They immediately placed a tracer on the relevant parcel to try to identify the location of the shoes and when that was unsuccessful, it promptly (2 January 2018) apologised to the complainant, issued a full refund and offered a 20% discount voucher. On 3 January 2018, Nike confirmed to the complainant that it was unable to provide a replacement pair of shoes as they were a limited edition item and there was no surplus stock available. They said it was unfortunate that in some instances goods went missing in transit, and that, given the nature of the promotion, it was not possible on this occasion to source a replacement item for the complainant. However, Nike said that did not represent a failure to manage the promotion responsibly.
Nike said participants were aware that the promotion provided the opportunity to purchase a one-off item of which there was very limited stock available. They said the situation was comparable to the prize of a one-off piece of artwork which was lost in transit to the winner. The premise of the promotion provided sufficient warning to participants that the shoes were a limited edition item and therefore limited stock was available. They would therefore understand that were stock to be damaged or lost, no further stock would be available to winners.
Nike said their promotion should be distinguished from a previous promotion in which the ASA had ruled that a percentage discount voucher was not a reasonable equivalent to a prize that had been lost in transit because no purchase was required to win the original prize but a purchase was required to gain the benefit of the discount. They pointed out that in their promotion a purchase was required to win the prize, that they had provided a full refund of the purchase and that they had issued an additional 20% off voucher as a goodwill gesture to alleviate the disappointment of the complainant.
Assessment
Upheld
The ASA understood that Nike regularly ran promotions that offered consumers the opportunity to buy limited edition items. While the tweet did not explicitly state what the prize was, we considered those who followed Nike on Twitter would be familiar with the type of promotion and would therefore understand, as the complainant did, that by entering “The Draw” they were applying for the opportunity to buy the featured shoes, not to win them as a prize.
We accepted that the complainant received his prize – the opportunity to buy the shoes – and that the problem that arose was with the delivery of the shoes to the complainant. However, the CAP Code (the Code) stated that promoters were responsible for all aspects and all stages of their promotions, and we considered that extended to delivery by third-party carriers of items which participants in a promotion had won the right to buy.
The Code also required that promoters award the prizes as described in their marketing communications or reasonable equivalents. It was clear from the nature of the promotion that only a limited number of the shoes were available, but we considered that consumers would still expect a business of the size of Nike to have sufficient stock to be able to ensure promotion winners could receive the items they had won the right to buy, even taking into account the foreseeable risk of some items being lost or damaged. We therefore considered that Nike should have been able to source and supply a replacement pair of the shoes to send to the complainant.
In the circumstances in which Nike would be unable to provide a replacement pair of shoes, Nike would refund the complainant and provide a 20% discount voucher to be used on a future purchase. We considered that a “reasonable equivalent” to the prize to buy a pair of limited edition shoes would have been the opportunity to buy another item of clothing that was similarly limited and that cost a similar amount to buy.
Because Nike failed to ensure that the promotion winner received the item he had won the opportunity to buy and because they failed to offer him the opportunity to buy a reasonable equivalent item, we considered that Nike had failed to conduct the promotion equitably or efficiently and had as a result caused undue disappointment to the winner.
The promotion breached CAP Code (Edition 12) rules 8.1 8.1 Promoters are responsible for all aspects and all stages of their promotions. 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. 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. and 8.15.1 8.15.1 Promoters must award the prizes as described in their marketing communications or reasonable equivalents, normally within 30 days. (Promotional marketing).
Action
We told Nike European Operations Netherlands B.V. to ensure in future that they were in a position to provide promotion winners with items they had won the opportunity to buy, and failing that to offer them the opportunity to buy a reasonable equivalent item.
