The ASA has upheld complaints against a prize promotion that offered the chance to win 250 Tesco gift cards worth £500 each. That’s a total prize fund of £125,000. However, only one of these £500 prizes actually found its way to a lucky winner. So what went wrong?
To enter, all you had to do was buy any Napolina product from a Tesco supermarket and then scan a QR code or visit a website. On entering the relevant details, you then found out instantly if you had won – or as was the case for all but one lucky shopper – that you had lost.
The problem was that the promoter (Princes Ltd t/as Princes Foods) had selected winners using a computer process that relied on a mathematical calculation algorithm based on the number of products eligible for the promotion. There were 1,605,000 eligible products and only 250 prizes available, putting the chances of winning at 1 in 6,420. The algorithm awarded prizes in accordance with those chances and, as only 5,404 entries were received, the algorithm only generated one winner.
What did the promoter say?
The promoter argued that it had included all significant terms on the point of sale materials, including how to participate, the opening and closing dates, the requirement for proof purchase, the relevant restrictions, the number and nature of prizes and where consumers could go to find the full T&Cs. They also highlighted the fact that their in-store materials merely said the Tesco vouchers were “available to be won” and that there was a “chance to win” them, which they believed consumers would understand to mean that there was a possibility that not all prizes would be won.
What did the ASA say?
The ASA disagreed. The ASA acknowledged that there is not necessarily an issue with running a promotion in this way, where prizes are awarded based on how many products are purchased, meaning that not all prizes may be awarded. This would account for the possibility that some packs might not be sold during the promotion. However, in this case, it is vital to ensure that consumers understand their true chances of winning and that these chances may be determined by other factors, such as the number of participants and a mathematical algorithm.
Although the full T&Cs included information about the algorithm, the chances of winning and the possibility that some prizes may not be awarded, this was significant information that would influence the consumer’s decision whether to participate. As such, it should have been included in the point of sale materials along with the other significant conditions. The ASA also said that the overall impression created by the ads significantly exaggerated the likelihood that consumers would win a prize – the chances of winning were just so vanishingly small. Princes Foods and Tesco are not the first to fall foul of this – there are various examples of promotions that have gone wrong for similar reasons (see McCain Foods and Highland Spring).
What do we say?
Avoiding mixed messages
It is clear that simply saying "chance to win" and "available to be won" is not enough to alert consumers to the fact that not all prizes will be won. Yes, they may accept that they may not win, but they would expect someone to! But as well as including significant limitations on the chances of winning in ads for promotions, it is important to ensure that the main promotional messages in these ads do not contradict these disclaimers by overstating the chances. In the present case, the ASA said the overall impression of the ads exaggerated the likelihood. However, there’s nothing so obviously outlandish in the copy quoted in the ruling. Perhaps it is just a case of making subtle tweaks such as changing “250 to be won” to make it clearer that this was an “up to” number, and then explaining the limitations in the small print.
Mop up prize draw?
Or perhaps we should ignore the semantics altogether and the promoter should have simply planned for the low take up and built in a “mop up” prize draw at the end to give away outstanding prizes to people who had participated but not won.
Making a reasonable estimate of likely demand
This of course raises the point that one of the reasons this issue arose in the first place was because of the significantly lower than expected take up: only 5,404 entries against 1,605,000 eligible products. One of the requirements of the CAP Code is to make a reasonable estimate of likely demand. Something clearly went awry with that estimate, if there was any such estimate – we don’t know because the ASA didn’t raise this. However, you would expect that the promoter and Tesco would have relatively useful data to indicate how these promotions tend to perform. It is always a good idea to estimate the likely demand – the flipside of what happened here is that too many people take up the offer and the promoter can't cope. We have seen plenty of promotions go wrong on that one.
Consumer protection laws
This is also a consumer protection issue. Under the Consumer Protection from Unfair Trading Regulations 2008, an unfair commercial practice includes a misleading omission – i.e. a commercial practice that omits material information causing the average consumer to take a transactional decision he would not have taken otherwise. In this case, had the consumer known that there was practically no chance of winning anything, would they have taken the decision to purchase the Napolina product over their usual choice? As is often the case, these issues are left for the ASA to adjudicate on and are not investigated as criminal offences, but promoters should be aware of the risk.
Beware comper complaints
There were two complaints in this case, including most notably Compers News, a magazine that pulls together all the current prize draws and competitions in circulation and gives its readers tips on how to enter. It’s not the first time they have complained (see this 2022 ruling against Mondelez for example) and it’s a reminder that it’s not just consumers and competitors who may complain to the ASA. When it comes to prize promotions, compers are savvy, know the rules inside out and can be very quick to cry foul. So it’s important to ensure your promotion bears scrutiny.
One last thing...
For completeness, this wasn’t the only issue investigated. One of the complaints (not upheld) noted that the ad invited people to “buy any Napolina product” but that not all Napolina products were included in the promotion. This is because Tesco does not stock all possible Napolina products. However, all Napolina products sold at Tesco were included in the promotion. So it was simply not possible to buy ineligible Napolina products. In fact this was something of a happy mistake. Two products should have been excluded but were inadvertently included. These purchases were honoured. I think it would have been nitpicking indeed if the ASA had upheld on that one.
Because the ads for the promotion significantly exaggerated the likelihood of consumers’ chances of winning prizes, and because they did not make clear how prizes were allocated, or otherwise manage prospective participant’s expectations of the likelihood of winning, we considered that the promotion was misleading