ASA: New CAP guidance on promotional T&Cs
How and when should promotion T&Cs be flagged to consumers?
A key ASA principle is that marketing communications must not mislead consumers. In relation to promotions, this means that promoters must include all of a promotion's significant conditions upfront in any promotional marketing. This requirement applies to all promotions – from "two for one" offers to instant-wins and prize draws.
Promoters must therefore identify the significant conditions of their promotion and ensure these are effectively communicated to consumers in any marketing material. In practice, it can be a tricky exercise to capture the significant T&Cs for a promotion within an ad, without taking away from the ad's impact. This is all the more challenging on social media where space is often limited.
The Committee on Advertising Practice (CAP) issued new guidance on 4 April 2017 to help promoters identify the terms that should be flagged to consumers and when and where they should be set out. In the guidance, CAP addresses:
Which T&Cs are likely to be considered significant?
Where should these significant conditions be set out?
For prize promotions, where should all of the other terms be set out?
What if an ad is significantly limited by time and/or space?
To recap (in CAP's language), significant conditions are those which "are likely to affect a consumer's understanding of that particular offer". The CAP Code lists these conditions, including how to participate in the promotion, the start and closing dates, any restrictions or limitations, the nature and number of any prizes or gifts, and the promoter's name and address (unless obvious).
CAP explains that all significant T&Cs should be stated in the initial marketing material – for online ads, this means the significant terms should be "on the same page as the ad, in the main ad". CAP references a number of useful previous ASA rulings, including one against Betfred where a welcome offer email did not clearly and prominently state in the email that the offer could only be used on member's first bets. This information could only be found on the website, two clicks away.
In a previous ASA ruling, a "welcome" email sent to new customers advertising an extra £30 when betting £10 included a hyperlink to a landing page with a further hyperlink to the full terms, which stated that the offer only applied to a customer's first bet. The ASA noted that the terms were two clicks away and that the omission of such a significant condition was likely to mislead customers, who may have started betting before reading the email.
Conditions for prize draws
For prize draws, other less significant conditions must be available before or at the time of entry but do not need to be as prominent; for example, they may be on the promoter's home page or on a page linked to through the ad. These conditions are listed in the CAP Code and include any restriction on the number of entries, whether there is a cash alternative and when winners will receive their prizes.
Ads limited by time and space
The CAP Code provides that promotional marketing that is significantly limited by time or space must include as much information about significant conditions as practicable and clearly direct consumers to an easily accessible source where all significant conditions are prominently stated.
The ASA will take account of the medium used, so eg on Twitter, 'trailer' tweets or "(1/2)" "(2/2)" may be used. A complaint about a tweet by Rio Ferdinand was rejected in 2012 because the significant T&Cs were communicated, albeit by a series of linked tweets.
The ASA is unlikely to consider advertisers' own websites or emails to be limited by space. In previous guidance, CAP has also indicated that Facebook posts are likely to be seen in the same way.
Where space is genuinely limited in promotional marketing, CAP explains that it might be acceptable for the significant conditions to be on the landing page (rather than in the ad itself) and other less important conditions to be one click away. However, the initial ad should always state that terms and conditions apply. Tread carefully though – even texts have failed the test because the ASA considered there was enough room for the significant conditions (Lucky Pants Bingo, 2016).
Why is it important?
As our screens get smaller, and more and more promoters turn to the web and in particular social media, the pressure on lawyers to cut down T&Cs becomes ever more intense. After all, no creative wants his impactful tweet ruined by legalese. But the ASA is clear that significant conditions must be communicated where possible – and on this basis CAP's guidance is a little gem in that it means you can play the 'don't shoot the messenger' card, simply by sending it on to the marketing team in the event of too much heavy busy back against T&C inclusion.
Any practical tips?
When creating or reviewing marketing material for a promotion, check through the conditions listed in the CAP Code (rule 8.17 and, for prize draws, rule 8.28) and ensure these are communicated clearly. In practice, the best way to avoid a complaint to the ASA is to avoid disappointing potential participants – so consider how a consumer might understand the promotion from the ad and whether any important information is missing.
Bear in mind that the ASA takes a fairly restrictive view on whether an ad is limited by time/space, including on social media, and ensure that significant conditions are either stated in the ad itself or (if really necessary) no more than one click away.
Promoters are responsible for all aspects and all stages of their promotions under the CAP Code – this includes where the promotion is run jointly with another organisation. Ensure that you keep a check on all promotional marketing materials, including via social media, to ensure they comply with the CAP Code.