Who: Advertising Standards Authority (ASA) and Abellio East Midlands Limited (East Midlands Railway).
Where: United Kingdom
When: 22 September 2021
Law stated as at: 24 September 2021
A competition featured on the East Midlands Railway website, seen on 1 February 2021, invited members of the public to submit ideas to help them “Build Back Better”. The winning entry was due to receive a prize of £5,000. The complainant understood that the promotion was cancelled but challenged the promotion on whether it had breached the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code), even though the terms and conditions of the promotion stated that East Midlands Railway could cancel the competition.
The CAP Code states that promoters must conduct their promotions equitably, promptly and efficiently, be seen to deal fairly and honourably with participants, and avoid causing unnecessary disappointment. Promotions must be conducted under proper supervision, and advertisers must make adequate resources available to administer them, to avoid giving consumers justifiable grounds for complaint. In the case of a prize promotion, promoters must also make the award (or reasonable equivalent) described in their marketing communications.
East Midlands Railway cancelled the competition and proposed a couple of justifications for not awarding the prize, including that they felt they had received a high volume of low-quality entries with ideas that were not suitable to be implemented. However, the only justification for withholding a prize under the CAP Code is if participants have not met the qualifying criteria clearly set out in the rules of the promotion. If the selection of a winning entry is open to subjective interpretation, then the CAP Code requires a demonstrably competent, independent judge, or a panel that includes one independent member, to be appointed.
The complaint was upheld in spite of the fact that the terms and conditions of the promotion stated that the competition could be cancelled. The ASA ruled that, by cancelling the competition and not awarding the prize, East Midlands Railway had not dealt fairly with participants and had caused unnecessary disappointment. They also said that East Midlands Railway must ensure that any future promotions are conducted under proper supervision.
Why this matters:
Rulings on cancelled prize promotions do not come up often. This ruling highlights that the circumstances to withhold a prize are very narrow. The decision also serves as a good reminder that the terms and conditions of the promotion do not absolve the advertiser of its responsibility to comply with the CAP Code.