Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A TikTok post from MyProtein, seen on 14 January 2023, featured a person speaking to the camera. They said, “2023 is your year and you’re already ready to smash your goals. For that extra motivation MyProtein is running a TikTok competition with your chance to win big. Whatever you’re into or looking to get into this year, whether it’s cycling, boxing, gymnastics or running like me, we want you to capture your journey using our filter.” At the same time, text flashed up on the screen stating “I AM A CYCLIST”, “I AM A BOXER”, “I AM A GYMNAST”, “I AM A RUNNER”. The presenter continued, “No matter what point you’re at. And tag MyProtein to be in with a chance of winning some amazing prizes. They’ve got stuff like a luxury yoga retreat in Morocco, Mirafit flat weight equipment, an Apple watch, and much much more. So get creating and tag us in any videos you make with the filter. Good luck!”
Text in the video stated “#YOUREALREADYREADY”. A caption on the post stated "2023 is your year to smash your goals!! #yourealreadyready #Myprotein #Yoga #Running # Swimmimg [sic] #Gymnastics".
Issue
1. The complainant, who asked MyProtein for a list of winners but was not provided with one and doubted that the prizes had been awarded, challenged whether the promotion breached the Code.
2. The ASA challenged whether the ad breached the Code because it omitted the significant conditions of the promotion.
Response
1. THG Nutrition Ltd t/a MyProtein explained that there were three prize bundles available to be won. First, there was a ‘Running Prize Bundle’ which consisted of Saloman tailor made running shoes, Freetrain v1 running vest, MyProtein Clear Whey electrolytes, MyProtein BCAA Energy Drinks (6 pack), Apple Watch SE and MP Velocity clothing range. Second, there was a ‘Yoga Prize Bundle’ which consisted of a luxury 5* retreat in Morocco, one year’s membership for unlimited digital yoga classes, MP Composure clothing range, MP Composure yoga mat, MP Recovery yoga mat and MyProtein yoga block. Third, there was a ‘Weightlifting Prize Bundle’ which consisted of a Mirafit flat weight bench and hex weight, Pulseroll massage gun, Apple Watch SE, a year’s supply of MyProtein Clear Whey, a year’s supply of MyProtein’s Creatine Monohydrate, a one year’s membership of the FIIT app and MP Temp clothing range. The prize bundles were available to be awarded and the intention was that one winner would be selected for each category.
They understood that following changes in the law on data protection, they were not obliged to publish or make available the full name and details of prize winners, but they were obliged to publish and make available information that indicated that a valid award had taken place. They provided the name and TikTok handle of the person who had been awarded the Running Prize Bundle and confirmed that the winner of that prize bundle had been announced on the MyProtein TikTok account. However, they explained that, because of the reasons set out in 2. below, winners for the Yoga Prize Bundle and Weightlifting Prize Bundle had not been selected and those prizes had not, therefore, been awarded. They said that having become aware of the issue, they had reviewed the entrants again and had now awarded the Yoga Prize Bundle and Weightlifting Prize Bundle (or an appropriate alternative prize, equivalent to the value of the original prizes advertised) to one winner in each category who had met the criteria that were specified in the terms and conditions.
2. MyProtein explained that having reviewed the prize promotion, it was clear that unfortunately certain conditions were omitted from the TikTok post itself. Whilst the terms and conditions posted on the advertiser’s website set out details of the three prize bundles, the post itself did not. Furthermore, they accepted that neither the TikTok post nor the terms on the website set out the full eligibility criteria, which were (i) use the appropriate TikTok filter according to which prize category they were entering (running, yoga or weightlifting), (ii) tag the MyProtein account in their entry, and (iii) be following the MyProtein account. Their social media team responsible for reviewing entries and selecting winners did so on the basis of the eligibility criteria. The omission of the full eligibility criteria had resulted in there being no valid entries for the Yoga Prize Bundle and the Weightlifting Prize Bundle and accordingly no prize had been awarded for those categories. They said they had issued training materials on the relevant parts of the CAP Code to their marketing and social media teams and would continue to carry out spot checks on promotions run on social media platforms to ensure they were compliant with the CAP Code.
TikTok explained that the post appeared in two different formats: a Spark ad (i.e. boosted organic content) and a non-Spark ad, both of which were VSP-controlled advertising. They said the Spark ad was not linked to a landing page. The non-Spark ad was linked to a landing page, but because it did not disclose the terms and conditions of the promotion or provide a link to them, they concluded that the post violated their ad policies and they had removed it from the platform.
Assessment
1. Upheld
The CAP Code stated that promoters must conduct their promotions equitably, promptly and efficiently, be seen to deal fairly and honourably with participants, and avoid causing unnecessary disappointment. Promoters must ensure that their promotions are conducted under proper supervision, and that they make adequate resources available to administer them, to avoid giving consumers justifiable grounds for complaint.
The CAP Code, which reflected the current legal requirements, also required that promoters must award the prizes as described in their ads or reasonable equivalents, and stated that withholding prizes was justified only if participants had not met the qualifying criteria set out clearly in the rules of the promotion. Promoters must either publish or make available information that indicates that a valid award took place – ordinarily the surname and county of major prizewinners and, if applicable, their winning entries. They must also inform entrants at or before the time of entry of their intention to publish or make available the information and give them the opportunity to object to this or to reduce the amount of information published or made available. In such circumstances, the promoter must nevertheless still provide the information and winning entry to the ASA if challenged.
The ASA understood that there were three categories of prize bundles: running, yoga and weightlifting and that one winner would be selected for each of the three categories. We understood that one winner had been selected for the Runing Prize Bundle and had been awarded their prize. We had been provided with the name and TikTok handle of that winner. However, we understood that no winners had been selected for the Yoga Prize Bundle or the Weightlifting Prize Bundle because there were no entries for those categories that had fulfilled all three eligibility requirements.
We considered that the ad did not clearly set out the qualifying criteria. Whilst it did make sufficiently clear that one of the entry requirements was to tag MyProtein in any video submitted, we considered that the ad did not make sufficiently clear the other two entry requirements, namely, the requirement to use the appropriate filter depending on the particular prize category they were entering and the requirement to follow MyProtein’s TikTok account. Although we acknowledged that the ad referred to “capture your journey using our filter” and “tag us in any video you make with the filter”, we considered that did not sufficiently explain which filter they were referring to and that there was more than one filter to reflect the different prize categories.
Because the ad did not clearly set out the qualifying criteria, we considered it was not justified for MyProtein not to select and award the Yoga Prize Bundle and Weightlifting Prize Bundle from the entries that had been received. We considered that by not awarding the prizes for the reasons given, MyProtein had not dealt fairly with participants and had caused unnecessary disappointment to participants. We also considered that MyProtein had failed to publish or make available information that a valid award had taken place for the Running Prize Bundle.
For those reasons, we concluded that the prize promotion had breached the Code.
On that point, the promotion breached CAP Code (Edition 12) rules 8.2, 8.15.1 (Promotional marketing) and 8.28.5 (Prize promotions).
2. 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 is likely to mislead. Significant conditions or information may, depending on the circumstances, include information about how to participate, a closing date, the number and nature of prizes to be won and whether they were to be awarded in instalments or to be shared among recipients. The Code also stated that marketing communications that include a promotion and are significantly limited by time or space must include as much information about significant conditions as practicable and must direct consumers clearly to an easily accessible alternative source where all the significant conditions of the promotion are prominently stated. Participants should be able to retain those conditions or easily access them throughout the promotion.
As stated in point 1, we understood that there were three prize bundles to be won: a Running Prize Bundle, a Yoga Prize Bundle and a Weightlifting Prize Bundle. We understood from the terms and conditions on MyProtein’s website that it was intended that one winner would be selected from each category at the end of each calendar month and winners would be announced by MyProtein ambassadors on TikTok. They would then have five working days in which to reply to claim their prize. We also understood from those terms and conditions that the closing date was 31 March at 12pm GMT, that entrants must be 18 or over and living in the UK and must be following @myprotein on TikTok to be eligible. We considered those were significant conditions which were likely to influence consumers’ understanding of the promotion and their decision to participate. Therefore, we considered the omission of that information from the ad was likely to mislead.
We also considered that information about the number and nature of the prize bundles available (including the individual prizes and that they would be awarded to one winner as a bundle, for each of the three categories) as well as information about which filter to use and how prize winners were to be selected were significant conditions likely to influence consumers’ understanding of the promotion and their decision to participate. For example, it was not clear from the ad how winners from each category would be selected; whether it would be a random selection or based on their skill at performing the activity in their video submitted. It was also not clear from the ad which referred to “the filter” and “our filter”, that there were different filters for each of the three categories. The ad also referred to activities that were not one of the three categories such as boxing and cycling. We considered that the TikTok post was not sufficiently limited by time or space to justify the omission of the significant conditions of the promotion from the ad itself and the omission of those significant conditions from the ad was likely to mislead participants or potential participants.
We therefore concluded that the ad breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules 8.17, 8.17.1, 8.17.4a, 8.17.6, 8.17.6b and 8.18 (Significant conditions for promotions).
Action
The promotion must not be run again in the form complained of. We told THG Nutrition Ltd t/a MyProtein to ensure that in future promotions they awarded the prizes as described in their ads or reasonable equivalents, and did not withhold prizes unless justified, i.e., where participants had not met the qualifying criteria set out clearly in the rules of the promotion. We also told them to ensure they either published or made available information that indicated that a valid award had taken place and included in their ads significant conditions or information about the promotion, where the omission of such conditions or information was likely to mislead.
CAP Code (Edition 12)
8.2 8.15.1 8.17 8.17.1 8.17.4 8.17.6 8.18 8.28 8.28.5
