LIVE ISSUE: 10 Most complained-about SP Campaigns - Why your promotion must obey the rules

Philip Circus introduces the top ten most complained-about SP campaigns of the past ten years

The Advertising Standards Authority (ASA) has been regulating promotional marketing since 1974, when the British Code of Sales Promotion was launched.

Nearly 30 years on, SP is integrated into the relaunched code - recognition that the ASA is a multi-disciplinary regulator overseeing issues that are common to advertising and SP.

The campaigns covered here are the most complained about over the past 10 years, taking us back to the Hoover case, which put SP firmly in the limelight after the free flights fiasco. What they highlight is that a marketing discipline come of age must show appropriate standards of professionalism.

Breaches of the code generate negative publicity and SP's integrity suffers.

And our ability to break down barriers to promotional marketing in Europe depend, in part, in demonstrating what some call "a high level of consumer protection".

In the 1920s, the International Chamber of Commerce concluded that self-regulation was needed because, in a world of repeat-purchase goods and services, consumers had to believe in the claims made by advertising.

That is even more the case now and is the best reason why the rules must be followed.

1 NTL - September 2000, 176 complaints - Upheld

Complainants objected to the "free internet access" claim on a direct mailing because they had not been able to receive the service. NTL said demand had led to overload. Although subsequent ads included the caveat "subject to availability", the ASA was concerned that NTL continued to advertise a "free service" in the full knowledge that it could not satisfy demand.

Circus says: This illustrates the importance of making a reasonable estimate of likely demand. Nothing annoys consumers more, nor better undermines their faith in SP, than an advertised offer that is not available. The offer should not continue to be advertised against a background of supply difficulties.

2 Federal Savings Vouchers November 1993, 157 complaints - Upheld

Complainants objected to a direct mailing that thanked them for their time and effort in filling in a survey and enclosed a ticket to win a prize. The complainants questioned the claimed source of their details as they did not recall taking part in a survey. The advertiser failed to provide the ASA with details of how it obtained recipients' details. The ASA considered the items on offer to be gifts, not prizes.

Circus says: This is a common problem. The code says there is a distinct difference between gifts and prizes. A reward that goes to all or most of those who take part in a promotion is a gift not a prize.

3 Health and Home Shopping - February 1996, 124 complaints - Upheld

Complainants objected to a prize draw mailing implying they had already won £20,000. The ASA considered the impression given by the mailing was that the recipient had already won the prize when, in fact, the draw had not yet taken place.

4 JND Ltd July 1997, 121 complaints - Upheld

Public objections to a series of mailings that purported to inform recipients they had won various cash prizes in a sweepstake, when in fact they were merely offering entry into a sweepstake.

5 Atlantic 252 - January 2001, 77 complaints - Not upheld

Objections that two posters and a direct mailer for a dance music radio station that used the phrase "Dance your tits off" were offensive. The mailer featured the opportunity to participate in a prize draw when the recipient listened to the radio station. The ASA decided the posters were unlikely to cause serious or widespread offence, ruling that because the mailer had been sent to adults only it was acceptable.

6 Hospital Plan Insurance Services February 1996, 51 complaints - Upheld

Objections that a series of mailings misleadingly created the impression that recipients had won a large cash prize. The first mailing said: "You have won a money prize"; the next required consumers to complete a direct debit mandate before being eligible to receive their prizes. The ASA ruled the promotion did not make clear enough at the outset that recipients had to complete a direct debit form to participate, finding that because every entrant received a cash sum it should be described as a gift, not a prize.

7 The Telegraph Group t/a The Daily Telegraph, April 2000, 43 complaints - Upheld

Complaints from participants in a Daily Telegraph scratchcard competition who, despite answering the competition questions correctly, had not received their prizes. Competition rules stated that, if there were more claims than prizes, they would be shared among claimants. The ASA found these rules contradicted other claims in the competition and the promoter had not shown it tried to avoid causing unnecessary disappointment.

8 Mirror Group Newspapers t/a Daily Mirror, October 1996, 36 complaints - Upheld

Objections to a scratchcard promotion where participants, who seemed to have qualified to win prizes of up to £10,000, were told their claims were invalid because of a printing error. The advertiser had published the correct number twice and with greater prominence, but the ASA was concerned that readers might think both numbers were valid. It was concerned that checking procedures were not rigorous enough to prevent such errors.

9 News Group Newspapers t/a The Sun, September 1999, 34 complaints - Not upheld

Complaints from participants in a Who Wants to be a Millionaire promotion that they had not been able to get through on the telephone lines and that the push had not been administered in a way that was fair to all complainants. The ASA was satisfied the promotion had been properly administered.

10 Serif (Europe) Ltd - November 1994, 33 complaints - Upheld

This involved a national press ad for free software. The complainants objected that a £6 shipping and administration charge meant that the software was not really free, as advertised. The ASA ruled that it was misleading to describe the offer as "free" because it was conditional on paying a fee that exceeded the postage required.

With thanks to the ASA and Philip Circus, director for legal affairs at the Institute of Sales Promotion, legal adviser to the British Promotional Merchandise Association and a partner in Lawmark

TOP TIPS - COMMON PITFALLS

- Don't forget to take legal advice - Don't fall foul of the Lotteries and Amusements Act by inadvertently running an illegal lottery. With a few exceptions, lotteries (where consumers pay for the chance of winning a prize) are illegal. Don't risk it. Get legal advice.

- Know the difference between a competition and a prize draw Competitions involve skill. You can make consumers pay to enter them.

Prize draws involve chance. To avoid an illegal lottery, you must let consumers enter the prize draw for free, so offer a "no-purchase" entry route.

- Don't mislead participants about prizes - Anything likely to affect a consumer's understanding of the prize or the promotion itself needs to be stated up front.

- Don't send SMS offers without clear terms and conditions - State all major terms and conditions, such as closing date, before participation.

If the push is so complicated you can't fit them in to a 160-character message, you're using the wrong communication channel.

- Don't confuse prizes and gifts - An item available to all - or virtually all - is a gift, not a prize.

- Don't imply that consumers are luckier than they are - Using terms such as "finalist" and "final stage" to suggest consumers have reached advanced stages of a promotion when they have not is misleading.

Consumers are not "lucky" just because they're on your database. Don't suggest consumers who scratch off three matching symbols on a scratchcard are lucky if all - or virtually all - scratchcards have three matching symbols.

- Know your audience - You must make every effort to ensure that promotional material and items are safe and are suitable for those who receive them. Take extra care if you're aiming your promotion at children and bear in mind that parental consent might be needed.

- How much is enough? - You should be able to satisfy demand for promotional goods. If you can't, you must be able to show that you took all reasonable steps (making a realistic estimate of likely response, for example) to avoid disappointment.

"Subject to availability" in a footnote won't get you out of jail.

- Are you sure it's really free? - Is the free item conditional on the purchase of another item? If so, say so up front. Are consumers charged more than the minimum, unavoidable cost of applying for the free item?

If so, you can't call it "free". Are you trying to recoup your costs by artificially inflating the price of the item consumers have got to buy as a precondition for getting the free item? If so, you can't call it "free".

- Some "easy-to-forget" terms and conditions Make sure participants can retain terms and conditions or have easy access to them throughout the promotion. Say how and when winners will be notified of results.

Say how you will judge competition entries and make sure at least one judge is independent if you are judging subjective entries.

Be prepared to verify on request that instant-win promotions have been independently audited to ensure all prizes have been distributed or made available for distribution

Lastly, call Copy Advice for free, fast and confidential help when planning promotions - by telephone on 020 7580 4100, by fax on 020 7580 4072, or by e-mail at copyadvice@cap.org.uk.

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