ASA Ruling on News UK & Ireland Ltd t/a News UK

The Times ran a promotion offering “two Legoland tickets for £10” upon the collection and redemption of four unique codes. The small print at the bottom of the promotion included “subject to availability” but did not include a closing date.

The complaints 

Two complainants challenged the promotion on the grounds that it was misleading and did not  comply with the Code because it was their belief that the advertiser had not made a  reasonable estimate of demand. Another challenged the promotion on the grounds it was  misleading because the promotion did not display a closing date. 

The response

•  Despite the fact that it was the first time that the Times had offered tickets to be acquired  by token collection with a payment element, News UK believed that it had made a  reasonable estimate of demand based on previous promotions which included free or  discounted experience offers. The examples it gave were promotions for free Legoland  tickets run by Times+ that had 10,000 redemptions and Alton Tower tickets by the Times  which had 15,000 redemptions. These two promotions (which involved the collection of  four tokens) were for the redemption of free tickets and the dates that the tickets were  available fell on the school holidays. The promotion in contention however had availability  from 10 March to 15 May 2017 and the redeemer had to pay £10 for two tickets. Taking  these factors into account, News UK believed that the Legoland promotion would be less  attractive than the Times+ or Alton Towers promotions. Notwithstanding this, News UK  purchased 35,000 pairs of tickets for the promotion.  News UK received 500 direct requests for tickets after the tickets were exhausted which it  believed was partly due to the fact that a prominent journalist had mentioned their  promotion on breakfast TV and on a popular finance website. This led to the promotion  being featured on multiple discount channels without their direct involvement, which they  had not anticipated at the time.
  
  News UK explained that as the sudden spike in demand  occurred after the final day of in-paper advertising, it was unable to remove or alter the  ads in the newspapers. Customers would however be aware that the tickets had run out  because they would receive an error message when they tried to book an available date to  attend Legoland. To avoid disappointment, News UK released an additional 500 pairs to  the entrants who had contacted them. 

• The closing date was included in the full terms and conditions, but News UK stated that in  future promotions it would ensure that it would include a closing date in a more prominent  place. News UK also stated that it had believed that the tickets allocated for the promotion  would not be exhausted by the end of the promotion and therefore the closing date had  not been extended. Furthermore, News UK believed that customers would know that they  needed to book quickly to secure their preferred date and therefore News UK did not  believe that the non-inclusion of the closing date would materially disadvantage any  customers.

The decision

• The ASA found that News UK had been reasonable in basing the estimate for this  promotion on promotions conducted in the past, notwithstanding the fact that these  previous promotions were not strictly identical to the Legoland promotion. Furthermore,  the ASA acknowledged that the spike in demand was due to the promotion’s unexpected  feature on breakfast TV which News UK could not have predicted although it was common  for discount websites to share information about promotions.
  
  The ASA did however note that the inclusion of “subject to availability” did not relieve  promotors of their obligation to do everything reasonable to avoid disappointing  customers. The CAP code requires promotors to communicate with consumers in a timely  manner and, if appropriate, offer a refund or a reasonable substitute product if they cannot  meet estimated demand. Other than release an additional 500 pairs of tickets to  customers who had contacted them directly, News UK did not further communicate with  and either refund or offer a reasonable substitute to customers more widely. This was  deemed likely to have caused disappointment and detriment to consumers who purchased  the newspapers to obtain the codes and as such the promotion was found to be  misleading and had not complied with the CAP Code. 

• The ASA acknowledged that the closing date was in the full terms and conditions but as a  significant condition, it should have been more prominently displayed. Furthermore the  dates that were displayed differed from the actual closing date and that, coupled with the  fact that the promotion was subject to availability, meant that it was imperative that the  consumers understood how long they had to redeem the codes in order to receive the  tickets. 
  
  The ASA ruled that the ads for future promotions must include the closing date and that if  they were unable to supply demand because of some unanticipated factor outside their  control, then they must ensure relevant timely communication with applicants and  consumers and, in cases of any likely detriment, offer a refund or a reasonable substitute  product. 

Why is this important? 

News UK had gone through the hoops and proved that it had made a reasonable estimate of  the demand for tickets. But the ASA put significant weight on the fact that they had not  communicated properly to consumers once the tickets had run out. It’s hard to see quite what  else News UK could have done here, especially in terms of providing a reasonable substitute  when the tickets ran out, albeit it’s likely that extra communication would have helped. So  what the case seems to be really saying is plan ahead – ie think about the communications  you will post if demand exceeds supplies, and consider what you will offer in advance as a  reasonable substitute. 

Any practical tips?

When preparing a redemption promotion, think through the practical steps you will take should  you run out of stock. Work out the messaging for this eventuality ahead of the start of the  promotion, so that you can deploy this immediately should your promotion prove too popular.  Think also on a substitute product you can offer participants. And, if there is a closing date,  always flag this prominently.