April 10, 2017

CAP reminds readers that all promotional marketing should clearly include all significant T&C’s upfront in initial marketing material. T&C’s are considered significant if they are likely to affect a consumer’s understanding of the promotion and their decision on whether or not to participate. Rule 8.17 lists the conditions that are likely to be considered significant in all types of promotional marketing. All other terms and conditions should be clearly signposted and easily accessible by consumers. Rule 8.28 states conditions that should be stated before or at the time of entry in relation to prize draws and should remain accessible throughout the promotion.

The specific terms and conditions that are likely to be considered significant will differ according to the specific promotion, and will be the conditions that are likely to affect a consumer’s understanding of that particular offer, the advice states.

Whilst significant conditions may differ between promotions, Rule 8.17 lists significant conditions that are likely to apply to all promotions. These include:

• how to participate, including any costs or factors likely to influence consumers’ understanding of the promotion;
• any free entry route explanation;
• start date (if applicable);
• closing date;
• any proof of purchase requirements;
• the nature and number of any prizes or gifts, or a reasonable estimate if the number cannot be determined;
• the existence of any restrictions or limitations, such as age, date or geographical restrictions;
• any limitations of availability; and
• unless obvious, the promoter’s name and address.

The ASA generally considers that all significant T&Cs should be stated in the initial marketing material, for online advertising this means that they should be included on the same page as the ad, in the main ad.

Less significant conditions should be available before or at the time of entry, but do not need to be given as much prominence, according to the advice. They might, for example, be stated on an in-store leaflet, accompanying literature or, if entry is by a website, on the promoter’s home page or a page linked to from the ad. They include (but are not limited to):

• any restriction on the number of entries;
• whether there is a cash alternative;
• when prize winners will receive their prizes (if more than 30 days after the closing date);
• how and when winners and results will be announced;
• the criteria and mechanism for judging entries;
• any copyright information regarding entries and how entries will be returned; and
• any intention to use winners in publicity.

Rule 8.28 states that these terms and conditions should be clear before, or at the time of entry and should be easily accessible throughout the promotion.

Some online promotions can be limited by space, and in these cases not all terms and conditions need to be stated in the initial ad, the advice states. If readers can click through to more information, it might be acceptable for significant conditions to be on the landing page and other less important conditions to be one click away. The initial ad should always indicate that terms and conditions apply.

Promoters should note that the ASA is unlikely to consider advertisers’ own websites or emails to be limited by space and they should take care to ensure significant terms and conditions are in the email or in the ad itself on the same page of the website.

Text messages may be considered media that is limited by space. However, marketers should be aware that the ASA will consider these on a case-by-case basis to establish whether this exemption is applicable. To read the advice in full, click here.