Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
The CAP Code does not prescribe what should be included in the terms and conditions (T&Cs) of a promotion and does not give legal advice. It states the sort of information promoters should give consumers and when that information should be available. Broadly, rule 8.17 lists ‘significant’ conditions which often appear in the initial advertising material, and rule 8.28 states conditions which should be stated before or at the time of entry. In short, T&Cs that are likely to affect a consumer’s understanding of the promotion should be upfront so that promoters do not cause unnecessary disappointment.
Rule 8.17 lists significant conditions for all promotions. Although the rule states those conditions should be available before purchase or, if no purchase is required, before or at the time of entry or application, the ASA has generally interpreted this as meaning that significant T&Cs should be stated in the initial marketing material (Profitable Ply Ltd, 17 August 2011). Those conditions include: how to participate; start date (if applicable); closing date; proof of purchase; the nature and number of any prizes; the existence of restrictions or limitations (for example, do participants have to be over 18?) and the promoter’s name and address. In short, CAP would urge promoters to make clear at the outset any factor likely to affect the participant’s understanding of the offer or decision to participate.
In 2012, the ASA criticised a ‘free’ website promotion that resulted in participants incurring a cost if they did not cancel their financial details. Although the promoter argued it had stated the consumer’s ongoing financial commitment, the ASA concluded it was not sufficiently clear and asked that that condition be stated on the home page (ecigsbrand.com, 17 October 2012). Promoters should take care to ensure availability restrictions are stated upfront. The ASA upheld complaints against an website promotion which claimed "Free Parking... In January & February 2013" because this would be interpreted by readers to mean that parking was available for free throughout those two months whereas the terms of the offer excluded nine dates (London Southend Airport Company Ltd, 3 April 2013).
In April 2012, the ASA upheld a complaint from a competition winner who discovered after winning that the prize cost £140 to deliver. The ASA ruled that the potentially substantial cost of delivery was a significant condition likely to affect consumers’ decision to enter the competition and that it should have been stated clearly in the main body of the ad (3D Cakes, 11 April 2012). In February 2013 the ASA upheld complaints against an ad for a promotion which required consumers to ring a premium rate service to claim an award because, although the cost was stated, rule 8.21.1 of the CAP Code prohibits promotions where consumers incur a cost to claim a prize or equivalent benefit (Churchcastle Ltd t/a Spencer & Mayfair 2011, 20 February 2013). In light of that ruling regarding rule 8.21.1, promoters must be careful to ensure the prize is clearly described because consumers cannot incur any cost to claim their prize. Using the example from 3D cakes, in order to be acceptable post Churchcastle, the promoter would either need to absorb the cost of delivery or clearly describe the prize as “win a cake available for collection” or similar.
An email for a gambling promotion stating “We're offering you a £10 bonus on your favourite Slot of all time! Simply deposit £10 using the code ALICEW and play Alice's Wonderland^ to release your 100% bonus of up to £10...” was found to breach rule 8.17 because it did not make it clear that participants would have to play and lose their deposit five times over in order to receive up to £10. Because consumers could participate without first being told of the significant condition, the ASA concluded the ad breached the Code (Gala Coral Group Ltd, 11 July 2012).
Conversely, a complaint about a series of tweets by Rio Ferdinand was rejected because the ASA considered the significant T&Cs were clear (New Era Global Sports Management Ltd, 25 April 2012). The initial tweet stated “I'm giving 2 tickets away for our home match against Stoke (31st Jan KO 8pm) ... I will tweet tomorrow morning with details of how to enter...”. The subsequent tweet explained “If you have downloaded the Rio Ferdinand App on iphone/ipad/Android or do so by Monday 5pm u may be randomly picked out to win the tickets! GO”. This adjudication demonstrates that the ASA will take account of the medium used (hence a ‘trailer’ tweet to followers may be acceptable in some circumstances) and that the significant conditions of a promotion (type of promotion, how to participate and closing date etc) can be included in a tweet.
Other significant conditions include the closing date. One promoter tweeted "To celebrate #petdentalcare month we are giving away 10 goodie bags filled full of dental treats. Follow and RT to win! #competition". The ASA concluded that the promotion breached the Code because it failed to include significant terms and conditions (Pet Plan Ltd, 26 September 2012).
Prize promotions T&Cs
Less significant conditions should be available before or at the time of entry but do not need to be given as much prominence; they might, for example, be stated on an in-store leaflet, accompanying literature or, if entry is by a website, on the promoter’s home page. They include (but are not limited to): how and when winners and results will be announced; when prize winners will receive their prizes (if more than 30 days after the closing date); whether there is a cash alternative and any restriction on the number of entries (Rule 8.28).
All the terms and conditions of a sales promotion must be easily accessed throughout the promotion (for example, on a website) or in a form retainable by entrants (rule 8.28). The ASA ruled that a prize draw mailing breached the Code because important information included in the terms and conditions should have been stated prominently in the body copy but appeared only on the envelope, which recipients were unlikely to retain (Kingstown Associates Ltd t/a Healthy Living Direct, 10 August 2011, HHS Trading (UK) Ltd, 20 June 2007).
In 2012, a promoter disqualified a participant because it considered she had unfairly canvassed votes. The ASA upheld the complaint because the T&Cs did not state that such behaviour was prohibited and would lead to disqualification (The Number UK Ltd, 4 April 2012). Promoters cannot create and enforce T&Cs retrospectively and it is incumbent on them to ensure that they state clearly how participants should behave. Promoters should take special care with online promotions, such as those requiring votes or offering free entry because they can be particularly open to abuse (Ferrero UK Ltd, 7 July 2010; Co-operative Group Ltd, 7 March 2012). See ‘Promotional marketing: Abuse’
Rule 8.18 states 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."
Some online promotions can be limited by space and the Copy Advice team advises that not all terms and conditions need to be stated in the initial ad. If readers can click through to more information, it might be acceptable for significant conditions to be on the landing page and other less important conditions to be one or two clicks away. The initial ad should indicate that ‘T&Cs apply’. Promoters should note that the ASA is unlikely to apply 8.18 to emails and they should take care to ensure significant terms and conditions are in the email (Gala Coral Group Ltd, 11 July 2012). Limited space might dictate where the information appears but does not influence the requirement to provide that info in a way that can be retained or accessed by consumers (Pet Plan Ltd, 26 September 2012).
Promoters who offer vouchers, either as gifts or prizes, should ensure that significant conditions are stated upfront. That applies to all vouchers, not just the more common holiday and travel vouchers. For example, if a scratchcard promotion offers shopping vouchers that are redeemable only through specific outlets, that should be stated in the T&Cs. Closing dates for holiday travel vouchers should be stated. The terms and conditions should state the value of individual vouchers if more than one is offered and should state whether a minimum spend is required to realise the full value of the vouchers.
This advice is designed to be read in conjunction with the Promotion marketing section of the CAP Code and the other entries in this advice section. Also, promoters might want to seek legal advice.