ASA New CAP guidance on prize draws including the Northern Irish anomaly

Why are “no purchase necessary” (NPN) entry routes still required in Northern Ireland but not in the rest of the UK? And what does CAP have to say about it?

The background

For most of the UK, the Gambling Act 2005, which came into force in September 2007, brought gambling regulation in line with modern practices. One of the significant changes introduced by the new law was that promoters no longer needed to offer a “no purchase necessary” (NPN) entry route to prize draw promotions where a purchase is involved. Provided that the price of a product is not inflated and there is no additional charge to the consumer, then a free entry route is no longer required.

But the Gambling Act 2005 does not apply in Northern Ireland, which still operates under the old rule of preventing any form of purchase with a prize draw. So NPN entry routes are still required – or rather a mechanism by which consumers can enter a promotion without paying or by paying no more than the minimum unavoidable cost of entering (eg a first or second class letter, an email or a standard rate SMS). While there have been calls to review Northern Ireland’s gambling laws for several years, no action has actually been taken on this front and promoters are still required to offer consumers an NPN entry route to prize draw promotions.

The development

The Committee of Advertising Practice (CAP) issued new guidance on 15 March 2017 which explains when a promotion will be considered an illegal lottery under the Gambling Act 2005. The guidance also refers to the position in Northern Ireland.

Previous CAP guidance noted that the Gambling Act 2005 did not apply in Northern Ireland, but went on to state that “in practice under EU law, there is no longer likely to be a requirement to always offer consumers an NPN route”. While this appears to suggest that free entry routes are not required in Northern Ireland, the opposite is true and CAP were likely comparing the position in Northern Ireland to that in the rest of the EU. CAP’s new guidance confirms that offering NPN routes to prize draws is “likely to remain commonplace” in Northern Ireland and recommends promoters seek legal advice before running promotions there.

For most promoters running UK-wide prize draws, the simplest solution will be to exclude Northern Irish residents from the promotion. The alternative is to set up an NPN route for Northern Ireland only, although this is likely to add a layer of complexity for promoters.

Why is this important?

CAP’s new guidance is useful, if only to remind good advertising lawyers of the quirks of the archaic lottery regulation still applying in Northern Ireland (12 years after the rest of the UK had sorted this out!).

Any practical tips?

Always consider which jurisdiction your promotion may end up appearing in, and who exactly you can safely target. The Northern Irish NPN anomaly for prize draws is a classic, and one promoters can easily forget about. So if you are running a prize draw in Northern Ireland, either (a) clearly exclude Northern Irish residents or (b) find a workable NPN for the promotion in Northern Ireland.