Helen Hart, Regulatory Affairs Manager, IPM
The ASA has ruled this week on two 'winning moments' or algorithmic promotions, which have excited some controversy in recent months across various sections of the media. The complaints were upheld in relation to both promotions. The adjudications were made under the existing rules of the CAP Code, which set out principles and the ASA then interpreted the principles, assessing each complaint on its merits.
In the first case, the ASA told the promoter to ensure that
their future advertisements managed prospective participants’ expectations of
the likelihood of winning, or otherwise made significant conditions, such as
how prizes were allocated or awarded, to avoid being misleading or
causing unnecessary disappointment.
In the other adjudication, the ASA told the promoter that, if
they intend to use instant win promotions in the future, they should ensure
that those promotions are conducted fairly and will not cause unnecessary
disappointment and do not exaggerate the
likelihood of consumers’ chances of winning prizes.
The rulings represent a significant change to the way 'winning
moments' or instant win promotions should be presented, although the CAP Code itself has not
So what does this mean for brands and agencies wishing to
carry out 'winning moments' promotions or promotions using algorithms? The good news is that you can still run them,
even though one of the brands in question has decided not to run them, although with some key aspects to be aware of.
The short terms on a promotional pack or point of sale
material must provide information about how the promotion works and explain how
likely it is for a consumer to win a prize. Effectively, advertisements need to
give a realistic indication of the chances of winning so that consumers can
decide whether taking part is worthwhile or not. Therefore, you need to clarify
that it is a winning moments or instant win promotion and summarise how it works. You also
need to detail how many prizes there are and if there are tiers of prizes, how
many prizes are available in each tier. If you have a variety of
different-valued prizes, ensure that the higher value prizes are won as well
as the lower value ones.
It is also advisable to say on the pack how many promotional
packs there are. The reason behind this is that the ASA stated terms that
relate to the awarding of prizes are likely to significantly influence a consumer's
understanding and decision to participate in the promotion, so people need to
understand the odds of winning. It is not sufficient for this information only
to be in the full terms, located on a website.
The ASA said that promotional materials or packs/labels must
make clear how prizes are allocated or otherwise manage consumer expectations
of the likelihood of winning. It is important that promoters do not exaggerate
the chances of winning a prize or a higher value prize.
Another issue to consider is whether all prizes will be won.
Are they merely "available" to be won, or will they actually be won?
In some promotions, if a consumer does not enter at the exact second - or even
fraction of a second - of the winning moment, no prize will be awarded. It is
better, albeit potentially more costly, to have a mechanism where the first person to enter after the winning
moment receives a prize. Alternatively, if nobody wins, you can roll over the
prize to the next winning moment.
So what practical steps does the IPM advise?
- Set out the number of prizes and the odds of winning (this should be upfront) – and say what the mechanic is on the pack.
- Ensure that
the balance between prizes, the number of prizes of different value, and
promotional packs is fair. What would you consider to be fair as a consumer?
- Decide what
would be reasonable for your customers, think about what you’d expect to see as
a consumer and don't try to pull the wool over consumers' eyes.
- Ensure that
the prizes are guaranteed and that all will be won.
- Have a sweep
up draw at the end of the promotion to allocate unwon or unwanted prizes
and to give all entrants an extra chance of winning.