Current laws and codes affecting promotional draws and competitions and participant data capture have been in place for years. Yet big brand owners who should know better are still getting them wrong. We pick holes in a recent prize promo at
A well-known sports goods brand
Marketinglaw's roving reporters picked up a leaflet promoting a competition to win a pair of tickets to a prominent international sporting event occurring later in 2005. No purchase was necessary, the leaflet stated. All that participants had to do was "answer the question below and fill in your details on the reverse."
The question asked which particular team a famous England International sportsman played for and this was followed by a "tie-breaker" asking the participant to state in no more than 20 words why they thought that England would win the up and coming international for which tickets were being offered as a prize.
A date by which entries had to be received was indicated and the participant's details requested included an e-mail address.
Under the personal details section was the statement "From time to time [promoter] will contact you about their products and services. This activity helps to better understand and meet the needs of you the customer. Please indicate below your preferences. Should you wish to receive such communications [promoter] will respect your decision.
Please tick here if you want to receive relevant information from carefully selected third parties
Please tick here if you do not want to receive relevant information from [promoter]"
So what was wrong?
That was it in terms of the basic content of the leaflet, so what was wrong with this?
Quite a few things, with the following being just examples:-
· no indication as to who would be judging the tie-breaker;
· no indication as to what criteria the judges will be applying in establishing who will win the tie-break;
· no indication as to how many winners of the competition there were going to be;
· no wording dealing with the copyright in the tie-breaker answers e.g. was it assigned to the promoter?;
· no reservation to the promoter of the right to make use of the participant's details to promote the competition;
· no indication of the date by which the winner would be announced and/or notified;
· no indication as to where details of the winner could be obtained and over what period;
· no minimum age for participation stipulated or country of residence;
· no exclusion from participation of employees of the promoter or their agencies; and
· usage disclosures and opt in/opt out deficient in many ways including:
– lack of specific reference to the promoter's possible use of details supplied for the purposes of e-mail or SMS marketing puts in doubt the promoter's future ability to send any digital marketing messages to participants about its products; and
– use of the phrase "relevant information" in the context of both the opt in and opt out opportunities is too vague and in danger of resulting in all the data collected being worthless for those purposes.
Why this matters:
It is extraordinary that the owners of such a leading brand should have made so many basic errors, errors which give rise to either breaches of the law, breaches of the CAP Code of Advertising Sales Promotion and Direct Marketing, serious questions as to the usability of the data captured or the promoter's exposure to breach of contract claims by disappointed participants.
The law in this area is due for reform under the Gambling Act 2005 within the next two years. However, this is no defence to a charge of non-compliance with the current law, to complaints that the CAP Code has been breached or to breach of contract claims by participants.