Background
Summary of Council decision:
Two issues were investigated, of which one was Upheld and the other was Not upheld.
Ad description
An in-store promotional display and a website for a promotion to win Tesco gift vouchers by purchasing Napolina products, seen in January and February 2023.
a. The in-store promotional display included large text which stated, “Buy any Napolina product and scan the QR code to enter”, above a large QR code. Smaller text underneath stated, “Napolina.com”. At the bottom of the display, smaller text stated, “Visit www.napolina.com & enter details inc. barcode…. Prizes: 250 x £500 Tesco cards available to be won instantly online …”.
b. The website www.napolina.com, included text which stated, “WIN WITH NAPOLINA … CHANCE TO WIN £500 in TESCO VOUCHERS … 250 to be Won!”. Smaller text underneath stated, “Prizes: 250 x £500 Tesco gift cards to be won instantly online.”
Issue
The ASA received complaints from Compers News magazine and a member of the public. The complainants:
1. understood that only selected products from the Napolina range were included in the promotion, challenged whether the claim “Buy any Napolina product and scan the QR code to enter” seen in ad (a) was misleading and breached the Code; and
2. believed that ads (a) and (b) did not make clear that all 250 prizes might not be won, challenged whether the promotion breached the Code.
Response
1. Princes said the promotion had been exclusive to Tesco, and that it had been developed to include all Napolina products stocked by participating Tesco stores. They believed that communication at the point of sale had been clear that “any Napolina product” referred to any of the product lines stocked by those stores. At the time of the promotion, participating Tesco stores had not stocked any Napolina products other than those included in the promotion. Princes therefore believed that the wording of the promotion had been factually correct and was not misleading, given that all Napolina products stocked by relevant Tesco stores were eligible.
Princes said that two different types of 200g Napolina Oil Sprays, neither of which had meant to have been included in the promotion, had been added to the list of eligible products, meaning that all Napolina products stocked by Tesco, in both participating and non-participating stores had been included in the promotion.
2. Princes said that the significant terms and conditions of the competition had been clearly listed on the in-store point of sale materials, and had included details on how to participate, the starting and closing dates of the promotion, the requirement for proof purchase, the relevant restrictions, the number and nature of the prizes, and where consumers could find the full terms and conditions. They said the key terms and conditions had been provided to ensure consumers had a realistic expectation of their likelihood of winning a prize, given that consumers could enter multiple times. They said that detail had followed guidance from the Institute of Promotional Marketing.
Princes said that they had tried to balance the requirement to provide consumers with key information in their point of sale marketing materials, while not overly complicating the message or confusing consumers, by presenting them with too much information. They said that they had considered how to indicate that not all prizes would be won in the point of sale materials, which they believed was reflected in the wording of the significant terms and conditions in ad (a), that 250 of the £500 Tesco vouchers were “available to be won”.
Princes believed that consumers would infer from the wording of both ads - that the prizes were “available to be won”, and that there was a “chance to win” - that there was a possibility that not all prizes would be won. They believed that had been reinforced by both the long and short form terms and conditions found on the website. Princes said that the longer-form terms and conditions on the website provided further information, including how the prizes would be allocated, and confirmed that not all prizes would be won.
Princes confirmed that the mechanism to award the prizes had been completed by mathematical calculation algorithm, performed by a secure, independently verified computer program which allocated prizes randomly. They confirmed that 1,605,000 products had been eligible for the promotion, meaning that with 250 prizes to potentially be won, there had been a 1-in-6,420 chance of winning. Only 5,404 entries were received, however, a much lower figure than expected. Princes said that as a result, and due to the algorithm governing the promotion, only one of the £500 voucher prizes had been won. They said that while the allocation of prizes had been lower than expected, it had been in line with the algorithm expectations, given that the number of entrants was under 6420.
Princes believed that consumers were sophisticated enough to understand from the promotional materials, that there had been no guarantee of winning a prize, and therefore did not believe that the ads or promotion had misleadingly implied the chances of winning a prize were guaranteed.
Assessment
1. Not upheld
The ASA noted that the prominent text seen in ad (a) stated, “Buy any napolina [sic] product and scan the QR code to enter”. We considered that consumers would expect, from that text, that any Napolina product available in a participating Tesco store would be included in the promotion.
We understood that two Napolina product lines had meant to be excluded from the promotion, which would have been available for purchase at non-participating Tesco stores, but that those products – both 200g oil sprays – had mistakenly been included in the list of acceptable products when the promotion was launched. We understood that if consumers had purchased one of those products from a store which had not been intended to participate in the promotion, they would still have been able to enter, because the website would have accepted the barcode. We also noted that the promotion had run exclusively in Tesco stores, and was not available in other supermarkets, which might have carried other items from the Napolina range.
Because any Napolina product a consumer would have been able to purchase in a Tesco store would have been eligible for the promotion, we considered that ad (a) had not presented a misleading impression of which Napolina products had been included in the promotion, and therefore concluded that it had not breached the Code.
On that point, we investigated ad (a) under CAP Code (Edition 12) rule 3.1 (Misleading advertising), but did not find it in breach.
2. Upheld
The CAP Code stated that marketers must be seen to deal fairly and honourably with participants and potential participants, and must avoid causing unnecessary disappointment. It also stated that marketing communications must communicate all applicable significant conditions or information, where the omission of such conditions or information was likely to mislead, including specifying the number and nature of prizes or gifts, and distinguishing those prizes that could be won from those prizes that would be won by someone by the end of the promotional period.
We noted that the prominent claim seen in ad (a) stated that consumers could scan a QR code found on Napolina packs in order to enter, but made no mention of what prizes could be won, or the nature of the promotion. Although we acknowledged that smaller text at the bottom of the ad stated “Prizes: 250 x £500 Tesco gift cards available to be won instantly online”, the short terms and conditions gave no information on how the promotion worked, or otherwise explained how likely a consumer was to win a prize. The prominent claim seen in ad (b) stated that there was a “CHANCE TO WIN £500 in TESCO VOUCHERS”, but the short terms and conditions were the same as in ad (a), so contained no further information on the details of the mechanics of the promotion.
We considered that because of the lack of detail in ad (a), and the emphasis in ad (b) being that there were 250 vouchers on offer, consumers would expect from the headline claims that all of the prizes referred to would be won. We also considered it was unlikely that the wording of the prominent claims in ad (a) and (b) would lead consumers to infer that there was a possibility that not all of the prizes would be won.
The figures provided by Princes, which showed that consumers had a 1-in-6,420 chance of winning, meant that at the outset of the promotion there had been less than a 0.02% likelihood of winning one of the prizes, prior to any reduction in the total number of prizes being taken into consideration. We also noted that only one of the prizes had actually been won, meaning that of an advertised £125,000 prize fund, only £500 had been won.
The full terms and conditions of the promotion stated that there was no guarantee that all the prizes would be won, and that prizes were awarded based on a mathematic calculation algorithm. While that information was accessible on the promotions’ website, there was no mention that all the prizes might not be won in either of the ads. We therefore considered that neither ad (a) nor ad (b) gave consumers any indication that the chances of winning a prize would be dictated by other factors, such as the number of participants, or that they were governed by an algorithm. We also considered that neither ad gave consumers any indication of the likelihood of wining one of the prizes.
We considered that it was reasonable to use a mathematic calculation algorithm mechanic in such promotions, to account for the possibility that some promotional packs might not be sold during a promotional period. We expected, however, that the ads should have given a realistic indication of the chances of winning, so that consumers could make an informed decision on whether participation was worthwhile.
Because the likelihood of winning a prize (and, consequently, the number of prizes that had actually been won) was so extremely low, we considered that the overall impression created by the ads significantly exaggerated the likelihood that consumers would win the prizes. We also considered that the terms which related to the awarding of prizes were likely to significantly influence a consumer’s understanding and decision to participate in the promotion. While we recognised that the full terms and conditions were available on the website, we did not consider it sufficient for such significant conditions to appear only in the full terms and conditions.
Because the ads for the promotion significantly exaggerated the likelihood of consumers’ chances of winning prizes, and because they did not make clear how prizes were allocated, or otherwise manage prospective participant’s expectations of the likelihood of winning, we considered that the promotion was misleading, and likely to cause unnecessary disappointment for those entering.
On that point, ad (a) and ad (b) breached CAP Code (Edition 12) rules 8.2 (Promotional marketing), 8.14 (Administration), 8.17, 8.17.1, 8.17.6, and 8.17.6.a (Significant conditions for promotions), and 8.20 (Prize promotions).
Action
The promotion must not be run again in the form complained of. We told Princes Ltd to ensure that ads for future promotions managed prospective participants’ expectations of the likelihood of winning, or otherwise made significant conditions clear, such as how prizes were allocated or awarded, in order to avoid misleading or causing unnecessary disappointment.
