A recent ASA adjudication provided a few lessons for promotional marketers when planning and running promotional marketing initiatives.
An email for a grocery app offered significant discounts on shopping - £20 off a £21 shop. The complainant, who immediately attempted to redeem the promotion but was told it had been paused, challenged whether the promotion had been administered fairly.
Our regular readers will be aware that the CAP Code provides that promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. It also says that promoters must avoid causing unnecessary disappointment and that phrases such as “subject to availability” did not relieve promoters of their obligation to do everything reasonable to avoid disappointing participants. These are very broad principles and they give the ASA a lot of wriggle room when considering complaints from disappointed consumers.
In the present case, the promotion enabled consumers to receive a £20 discount on their shopping bill, meaning they could receive £21 worth of grocery shopping by spending just £1. As a result, the promotion was likely to receive a high level of interest. The promotional email did not include any eligibility criteria, particularly information which indicated that the promotion depended on a consumer’s location. The ASA therefore considered that consumers would expect, regardless of their location, that the promotion was available to everyone.
The ASA understood that the availability of the promotion fluctuated depending on location. Because the email implied that the promotion was available to all, no matter the circumstances, it considered that the promotion had not been administered fairly.
In addition, the promotion had not been honoured where participants had unsuccessfully attempted to redeem the discount. The complainant had immediately attempted to redeem the promotion but was unable to do so, and after contacting the promoter’s customer service team about the matter, was told that they had the right to cancel any promotion. The complainant later attempted to redeem the promotion again but remained unsuccessful. The ASA considered the mechanics of the promotion, and that by its nature, a discount code was scalable and did not rely on providing a product with finite availability. Therefore, it considered that it was reasonable to expect the promotion to be extended to those who had received the email, as the marketing team had originally intended, to avoid disappointing participants. Because this did not happen, it considered that the promoter had not taken all reasonable steps to avoid disappointing participants.
The ASA concluded that the promotion had not been administered fairly and that it was likely to have caused participants unnecessary disappointment. Therefore, it breached CAP Code rules 8.1 and 8.2 (Promotional Marketing) 8.9, 8.10 and 8.11 (Availability).
The issue arose because two teams had been working on the promotion. There had been a miscommunication about the mechanics of the promotion between the two teams; specifically, the marketing team understood the promotion was available to all customers at all times, but in fact, the promotion was only available in certain locations. Therefore, due to this misunderstanding, the marketing materials did not state that the availability of the promotion would be dependent on location and availability.
The promoter had confirmed that the ad had not and would not appear again in the form complained of and that several processes had since been implemented to ensure that similar disappointment did not occur again. They highlighted that the marketing and growth teams were now aligned on the mechanisms behind all promotions, and they ensured emails were indicative of promotions that were available. They also emphasised that their legal team reviewed all promotional materials to ensure that they were compliant with the CAP Code, and that details of all promotions were made clear to consumers, including giving sufficient prominence to significant terms within the main body of emails.
This ruling is also a helpful reminder that simply having terms and conditions that allow you to cancel or suspend a promotion in your discretion is not necessarily something you can rely on in these situations. Just like a right to amend the terms and conditions at any time, or to change the promotion or prizes on the fly, these discretionary rights cannot be relied on as a get-out-of-jail-free-card. They really should only be exercised in emergency-break-glass situations, i.e. in the event of something happening that is genuinely outside the control of the promoter. Here, that wasn’t the case and in these situations it is often better to throw some money behind putting things right for disappointed customers, rather than retreating behind your terms and conditions.
In conclusion, when you are planning and running promotions, ensure that all the relevant teams in your business are communicating with one another, get the legal team or your legal advisers involved, and do not forget to ensure that all significant conditions are set out in the advertising material for the promotion.
We concluded that the promotion had not been administered fairly and that it was likely to have caused participants unnecessary disappointment