Who: The Dutch Advertising Board of Appeal (CvB), the Dutch Advertising Code Committee (RCC) and the Dutch State Lottery.
Where: The Netherlands
When: 13 February 2020
Law stated as at: 2 April 2020
What happened:
The Dutch State Lottery (Staatsloterij) placed an ad on a social media network involving a spinning wheel with the claim: “Make a chance to win 1, 10 or 100 State Lottery tickets! You can play along automatically, spin the wheel!“. The spinning wheel contained several boxes with the numbers 1, 10 or 100. The wheel automatically stopped at the “100” box. Users had to read the terms and conditions – which were hidden behind the “more information” button – to find out that the lottery tickets were awarded in a completely different way.
This ad resulted in a misleading advertisement complaint with the RCC, which argued that the Staatsloterij’s advertisement created the impression that participants had a high odds of winning (multiple) tickets.
RCC’s ruling (first instance)
The RCC agreed with the complaint and ruled that the advertisement was misleading and violated the Dutch advertising rules. According to the RCC, the spinning wheel and the text created the impression that participants had a high odds of winning State Lottery tickets. The advertisement did not clarify that the wheel was merely intended as a metaphor. The terms and conditions did not change the RCC’s position, and the RCC added that the advertisement did not refer to the terms and conditions.
Defence
Staatsloterij appealed the RCC’s ruling with the CvB. Staatslotterij argued that the average consumer can be expected not to equate a virtual wheel with a physical wheel. Moreover, the average consumer should understand that the odds of winning multiple State Lottery tickets would not be high If those odds were accurate, that would result in a large loss-making campaign. In addition, Staatsloterij argued that the terms and conditions do apply, and that it is clear to the average users that the terms and conditions are available in the “more information” section.
CvB’s ruling (appeal)
The CvB did not follow Staatsloterij’s arguments and confirmed the RCC’s ruling. To determine whether an advertisement is misleading, one has to take into account the overall expression and context of the communications. The spinning wheel dominated Staatsloterij’s advertisement with the intention of catching the consumer’s attention. The primary information available to the consumer was the spinning wheel, which most consumers would equate to a physical spinning wheel.
In its ruling, the CvB referred to a decision of the Dutch Supreme Court and stated that consumers’ irrational thoughts, emotions and habits play an important role when considering to participate in a game of chance. Therefore, the CvB ruled that the Staatsloterij has no argument for promoting the game in such a way, as the consumer’s decision to participate is no longer based solely on rational considerations. There should have been no ambiguity in the contested advertisement about the game and prices to win. The reference included in the advertisement does not justify the fact that it could give a false impression in this respect.
Why this matters:
This ruling contains the following interesting takeaways:
- Advertisers should be aware that the overall impression of an advertisement for a game of chance shall be reinforced by a call for action.
- Irrational thoughts, emotions and habits are taken into account when assessing whether an advertisement for a game of chance raises false expectations among consumers and violates advertising rules.
- A restriction in the advertisement, for example by providing the possibility to click through for further information, does not justify the fact that the consumer is given the wrong impression.
- The applicability of additional terms and conditions should be front and center, and can not be hidden under a “more information” section.
These takeaways can be applied to other advertising and should be taken into account by marketers when creating a new ad campaign.
