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What is meant by 'independence' in promotions?

Thursday November 29, 2018 at 2:49pm

Helen Hart, Regulatory Affairs Manager, IPM  

The CAP Code rule 8.26 includes requirements for independent judges and observers in the preparation and management of promotional campaigns. These requirements exist to ensure that prize promotions are administered properly and more to the point, are seen to be administered properly. This helps to give participants confidence in the integrity of a promotion, and also helps to protect the promoter. But what is meant by ‘independence’?  Who counts as an independent judge or observer?

When is an independent observer necessary for a prize draw?

If you are running a prize draw, you need to select winners according to the laws of chance and this must be independently verifiable. It is not sufficient to simply say that a random process was used - you need evidence. This might, for example, include a spreadsheet which clearly uses a random function formula.   

The ASA has upheld complaints that a winner was not genuine or that the winners were too closely connected with the promoter.

Who counts as ‘independent’ for a prize draw?

According to CAP guidance, marketers can use the proverbial ‘man in the street.’ In a 2006 adjudication, the ASA implicitly accepted that an observer from Electoral Reform Services was suitably independent.

When is an independent judge necessary for a competition?

If the selection of a winning entry is open to subjective interpretation, there should be at least one judge (either a sole judge or one judge on a panel) who is independent. ‘Independent’ in this context means demonstrably independent, especially from the competition’s promoters and intermediaries (e.g. agencies) and from the pool of entrants from which the eventual winner is chosen. You can pay a judge, which in itself does not compromise their independence.

Examples of independent people considered by the ASA include the editor of a national newspaper and the chair of an unrelated trade body. The promoter and sponsor are not independent and CAP states that it does not consider agencies who have worked on a campaign or lawyers who have advised on it to be independent.

So who would be independent?​

As well as the people mentioned above, you could ask local councillors, trading standards officers, auditors, unrelated solicitors or a representative of the promoter’s trade association to assist.

Be careful with internal people. Agencies are branching out into other areas outside their traditional scope and it might not necessarily be appropriate to carry out different functions on the same promotion if you don’t want to compromise independence. As an example, according to the CAP guidance, the Promotional Marketing and Direct Response Panel has advised that there is unlikely to be enough separation between editorial and promotional departments of publications, for editorial staff to act as independent judges or observers.
» Categories: Legal, CAP