ASA ruling on extending closing dates - Ogilvie
Does the illness of a key staff member and/or technical issues constitute unavoidable events beyond the control of a promotor, in order that they can exercise a contractual right to extend the end date of a promotion by 12 months?
The key takeaway
In order for an extension to be appropriate, it must be due to both unavoidable circumstances beyond the control of the promoter and it must not disadvantage original entrants. Consider also making contingency plans for your promotions. Failure to do so will not sit well with the ASA.
A promotion offered the opportunity to win a house, by entering into a prize draw, after answering a multiple choice question. Tickets were £10 plus a 50p booking fee. Due to staffing issues and technical issues, competitors were informed on 29 October 2018 that the original closing date of 30 November 2018 was to be extended by 12 months to 30 November 2019. Following the ASA’s investigation, the closing date was brought forward to 30 June 2019.
Ogilvie argued that the competition was not run as a raffle or lottery, but that it required entrants to exercise skill in order to be considered for a prize, as they had to answer a multiple choice question correctly. They also stressed that Part IV(h) of the Preface of the Code stated that “the Code is primarily concerned with the content of advertisements, promotions and direct marketing communications and not with terms of business and products”. As the competition was their product, and the ad was an offer for potential entrants to enter into a contract with them, the extension of time was a contractual matter beyond the purview of the ASA.
The ASA considered that the competition to win a mansion and other prizes as listed on the website amounted to a promotion in non-broadcast media. Additionally, Part IV(h) of the Preface of the CAP Code states that “some rules, however, go beyond content; for example those that cover the administration of promotions”. They considered that these circumstances fell within this.
As the extension of the date would increase the number of entrants and thus decrease the chance of winning for any one individual, the ASA held that the original entrants had been disadvantaged by the extension. They also gave short shrift to Ogilvie's contention that the illness of a key member of staff was an unavoidable circumstance beyond their control which required an extension of 12 months.
Why is this important?
The CAP Code requires that any extension to a promotion should only be made where this is due to unavoidable events beyond the promoter’s control. In these circumstances, the promoter must not change the date where to do so would be unfair to those who sought to participate within the original terms or it must ensure that those who sought to participate within the original terms would not be disadvantaged by the change.
There needs to be evidence to show that circumstances were outside of the promoter’s control, were unavoidable and required that the closing date be extended. It is also necessary to do this in such a way that original entrants would not be disadvantaged.
The ASA made it very clear that businesses are expected to have contingency plans in place to ensure adequate staffing in the case of illness, and this of its own will likely be insufficient to justify an extension. While technical issues may be compelling, Ogilvie was criticised for failing to provide details of both the issues faced and how they made the 12 month extension necessary.