Introduction
The provisions relating to promotional marketing practices regulate the nature and administration of those marketing techniques which involve the provision of direct or indirect additional benefits, usually on a temporary basis, designed to make goods or services more attractive to purchasers. The provisions cover, amongst others, such forms of promotion as:
- premium offers,
- reduced price and free offers,
- the distribution of vouchers, coupons and samples,
- personality promotions,
- charity-linked promotions,
- prize promotions.
The provisions are designed primarily to protect the public but they also apply to trade promotions and incentive schemes and to the promotional elements of sponsorship.
Sales promotions should be conducted equitably, promptly and efficiently and should be seen to deal fairly and honourably with consumers. Promoters should avoid causing unnecessary disappointment.
Protection of Consumers
Promoters should have proper regard for normal safety precautions. Promotional products and samples should be distributed in such a way as to avoid the risk of harm to consumers. Special care should be taken when sales promotions are addressed to children or where products intended for adults may fall into the hands of children. Literature accompanying promotional items should contain any necessary safety warnings.
Sales promotions should be designed and conducted in a way that respects the right of consumers to a reasonable degree of privacy and freedom from annoyance.
Consumers should be told before entry if participants may be required to become involved in any of the promoters’ publicity or advertising, whether it is connected with the sales promotion or not. Prizewinners’ interests should not be compromised by the publication of excessively detailed information.
Suitability
Promoters should not offer promotional products which are of a nature likely to cause offence or products which, in the context of the promotion, may reasonably be considered to be socially undesirable.
Availability
Promoters should be able to demonstrate that they have made a reasonable estimate of the likely response and that they are capable of meeting that response. This applies in all cases except prize promotions, where the number of prizes to be awarded should be made clear to participants.
Phrases such as “subject to availability” do not relieve promoters of the obligation to take all reasonable steps to avoid disappointing participants.
If promoters are unable to meet demand for a promotional offer because of an unexpectedly high response or some other unanticipated factor outside their control, products of a similar or greater quality and value or a cash payment should normally be substituted.
Quality
Promoters should ensure that promotional products meet satisfactory standards of safety, durability and performance in use.Where appropriate, such matters as guarantees and aftersales service should be clearly explained.
Presentation
The presentation of sales promotions and the associated publicity should not mislead consumers.
All supporting advertising material should conform both to the law and to the general and sectoral rules of the Code, as appropriate. In particular, descriptions of promotional products should not overstate their quality, availability, uses or value.
The fact that promotional products may be acquired free of charge does not dispense with the need for a full and correct description.
Terms of the Promotion
The terms in which a promotion is presented should be clear, complete and easy for the consumer to understand. The following points should be clearly explained:
(a) how to participate, including any conditions and costs;
(b) the promoters’ full name and business address in a form that can be retained by consumers;
(c) the closing date prominently displayed; where the final date for purchase of the promoted product differs from the closing date for the submission of claims or entries, this should be made clear to participants;
(d) any proof-of-purchase requirements; this information should be emphasised, for example by using bold type, separating it from other text or using a different colour. A requirement to purchase more than one unit of a product to participate in a promotion ideally should be stated on the front of any label or material carrying details of the promotion;
(e) any geographical or personal restrictions;
(f) any necessary permissions (e.g. those of parents or guardians);
(g) any limit on the number of applications permitted;
(h) any limit on the number of promotional products or prizes that an individual consumer or household may claim or win;
(i) any other factor likely to influence consumers’ decisions or understanding about the promotion.
Any terms or conditions, the effect of which is either:
- to exclude some consumers from the opportunity to participate or
- to impose requirements that are likely to affect a consumer’s decision whether or not to participate,
should be clearly and prominently stated so as to be clear to the consumer before any commitment is made.
Administration
Sales promotions should be conducted under proper supervision and with adequate resources. Promoters and intermediaries should not give consumers any justifiable grounds for complaint.
Promoters should allow ample time for each phase of the promotion: notifying the trade, distributing the goods, issuing rules where appropriate, collecting the wrappers and the like, judging and announcing the results.
Promoters should fulfil applications within 30 days unless:
(a) participants have been told in advance that it is impractical to do so;
(b) participants are informed promptly of unforeseen delays and are offered another delivery date or an opportunity to recover any money paid for the offer.
When damaged or faulty goods are received by a consumer, promoters should ensure either that they are replaced without delay or that a refund is sent immediately. The promoters are entitled to seek the return of the faulty goods and, if possible, the original packaging, at their expense. The full cost of replacing damaged or faulty goods should fall on promoters. If any applicant does not receive goods, promoters should normally replace them free of charge.
Free Offers
An offer should be described as free only if consumers pay no more than:
(a) the minimum, unavoidable cost of responding to the promotion, e.g. the current public rate of postage, the cost of telephoning up to and including the national rate or the minimum, unavoidable cost of sending an e-mail or SMS text message,
(b) the actual cost of freight or delivery;
(c) the cost, including incidental expenses, of any travel involved if consumers collect the offer. In all cases consumers’ liability for such costs should be made clear and there should be no additional charges for packaging or handling.
Marketers should not attempt to recover their costs by reducing the quality or composition of a product by imposing additional charges or inflating incidental expenses or by increasing the price of any other product that must be purchased as a pre-condition of obtaining a free item.
A trial should not be described as free if the consumer is expected to pay the cost of returning any goods, unless this requirement is made clear to the consumer when the offer is made.
Where an offer appears on a product, and when benefiting from that offer requires several purchases of the product, the need to make additional purchases should be clearly indicated.
Where an offer covers two or more items, of which only one is free, it should be made clear to the consumer what is offered free and what they must pay for.
Where unsolicited samples or gifts are distributed through a promotion, it should be made clear that the consumer is under no obligation to buy or return the items.
Promotions with Prizes
Promotions involving prizes are subject to legal requirements and promoters are strongly advised to seek expert legal advice.
Entry conditions should be clearly worded and should set out the following details:
(a) the closing date;
(b) any age, eligibility or geographical restrictions;
(c) any restrictions on the number of entries or prizes;
(d) any requirements for proof of purchase;
(e) any permissions required (e.g. from parent or employer);
(f) the criteria for judging entries;
(g) a full and accurate description of the prizes;
(h) any limitations imposed on acceptance of the prizes and any duties or obligations on the part of the winners (e.g. in regard to post-event publicity);
(i) whether a cash alternative can be substituted for any prize;
(j) how and when winners will be notified of results;
(k) how and when results will be published (see 3.32);
(l) where appropriate, who owns the copyright of the entries;
(m) whether and how entries will be returned.
Complex rules should be avoided and promoters should not need to supplement conditions of entry with additional rules. If further rules cannot be avoided participants should be informed how to obtain them; the rules should contain nothing that would have influenced a consumer against making a purchase or participating. Participants should always be able to retain entry instructions and rules.
The closing date should be clearly stated in each advertisement, on each entry form and on the outer surface of any relevant pack, wrapper or label. This date should not be changed unless circumstances outside the reasonable control of the promoters make it unavoidable.
A poor response or a low level of entries is not an acceptable basis for extending the duration of a promotion or withholding prizes unless the promoters have explicitly reserved their right to do so at the outset. An exception to this is where, in a promotion involving a collection or redemption mechanic, a poor response may be an acceptable basis for extending the promotion for a reasonable duration.
Promoters should either publish or make available on request details of the name and county of residence of major prizewinners. Promoters should bear in mind the risk of theft or harassment that may arise if the details given are sufficient to allow the address of a winner of a prize of substantial value to be pinpointed.
Unless otherwise stated in advance, prizewinners should receive their prizes no more than six weeks after the promotion has ended.
If the selection of winning entries is open to subjective interpretation, an independent judge, or a panel including one member who is independent of the competition’s promoters and intermediaries, should be appointed. Those appointed to act as judges should be competent to judge the subject matter of the competition. The identity of judges should be made available to the Authority on request.
Where a prize promotion involves any form of draw, promoters should ensure that tokens, tickets or numbers are allocated on a fair and random basis. An independent observer should supervise the draw to ensure that individual entries enjoy equal chances.
When prize promotions are widely advertised, promoters should ensure that entry forms and any goods needed to establish proof of purchase are widely available.
The distinction between a prize and a gift should always be clear to consumers. Gifts offered to all or most participants in a promotion should not be described as prizes. If promoters offer a gift to all entrants in addition to giving a prize to those who win, particular care is needed to avoid confusing the two.
Promoters should not exaggerate the likelihood of consumers winning a prize.
Advertisement Promotions
Advertisement promotions should be designed and presented in such a way that they can easily be distinguished from editorial material.
Features, announcements or promotions that are published in exchange for a payment or other reciprocal arrangement where their content is controlled by the promoter should comply with the Code.
Publishers announcing reader promotions on the front page or cover should ensure that consumers know whether they will be expected to buy subsequent issues of the publication or if any financial contribution is required. Major qualifications that may significantly influence consumers in their decision to purchase the publication should appear on the front page or cover.
Charity-linked Promotions
Promotions claiming that participation will benefit a charity or good cause should:
(a) name the charity or good cause that will benefit, and be able to demonstrate that those benefiting consent to the advertising or promotion;
(b) define the nature and objectives of the charity or cause unless that information is already widely available;
(c) specify the extent and the nature of the advantage to be gained by the charity or cause;
(d) state if the promoters have imposed any limitations on the contribution they will make;
(e) not limit consumers’ contributions; any extra money collected should be given to the named charity or cause on the same basis as contributions below that level;
(f) not exaggerate the benefit to the charity or cause derived from individual purchases of the promoted product;
(g) make available on request a current or final total of contributions made.
Promotions and the Trade
Promotions and incentive schemes should be designed and implemented to take account of the interests of everyone involved and should not conflict with the duty of employees to their employer or their obligation to give honest advice to consumers.
Promoters should secure the prior agreement of employers or of the manager responsible if they intend to ask for assistance from, or offer incentives to, any other company’s employees. Promoters should observe any procedures established by companies for their employees, including any rules for participating in promotions. In the case of a trade incentive scheme that has been advertised rather than individually targeted, employees should be advised to obtain their employer’s permission before participating.
It should be made clear to those benefiting from an incentive scheme that they may be liable for tax.
Data Protection
Attention is drawn to the requirements of the Data Protection Act, 1988, in regard to the collection, processing, keeping, use and disclosure of personal data.
Other Requirements
Attention is drawn to the Gaming and Lotteries Act, 1956. (Promoters should note that a prize promotion which involves purchase requires a test of skill; otherwise it may contravene the Gaming and Lotteries Act, 1956.)