UK: Space NK's Christmas Calendar Ruled Unfair

Who: The Advertising Standards Authority (ASA) and Space NK

Where: United Kingdom

When: 28 February 2024

Law stated as at: 12 March 2024

Overview

The ASA ruled against Space NK's 2023 beauty advent calendar related promotion, citing breaches of the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) and highlighting concerns over fairness of administration and the omittance of significant conditions, serving as a crucial reminder for brands to ensure that their promotions comply with the CAP Code.

The promotion, which was launched on Space NK's social media account, offered participants a chance to win the coveted 2023 beauty advent calendar. The social media post explained that, in order to enter the promotion, participants had to follow Space NK's account, comment on the post with a present emoji, tag three friends in the comments section and get zero "likes" on the present emoji comment. The post also explained that participants could obtain two bonus entries by sharing the post to their account.

The ASA received complaints about the promotion and these prompted an investigation. The complaints related to the fairness of the promotion's administration, including whether or not the prize was awarded in accordance with the laws of chance. The ASA also challenged whether significant conditions had been omitted from the adverts.

Fairness of administration

The CAP Code states that promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants.

Promoters of prize draws must also ensure that prizes are awarded in accordance with the laws of chance. This can be done by a verifiably random computer process, as long as there is evidence of its use. If a computer process is not used, winners must be selected under the supervision of an independent observer.

While Space NK was able to demonstrate that the winner of the advent calendar was selected via a verifiably random computer process, they were unable to demonstrate that all valid entries were included in the final draw and that invalid entries had been excluded.

Specifically, Space NK could not show that the manual review of the comments and bonus entries they carried out before participants were placed into the random computer process excluded entries that were "liked" after the prize draw closed, but before the list of valid entries was compiled.

Additionally, while Space NK were including bonus entries from both public and private accounts, they were only actually able to validate posts shared from public accounts. The ASA understood that Space NK could only review whether a private account had mentioned them in a post, rather than if they had shared the promotional post itself. This meant that bonus entries could have been awarded to participants who had not necessarily met the full requirements.

Finally, the ASA noted no evidence of policies being implemented by Space NJ to prevent the "zero likes" aspect of the promotion from being abused. The ASA observed that by simply liking another's comment, participants would have increased their chances of winning.

Omittance of significant conditions

The CAP Code states that promotional materials must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. Significant conditions will, in most circumstances, include the specific start and end dates of the promotion and may also include information about how many entries participants can make.

The ASA noted that Space NK's social media post did not include the specific time the promotion started or ended. Additionally, the post did not confirm that participants could make more than one entry into the draw by posting more than one comment. The ASA considered that these were both significant conditions and that their omission was likely to mislead.

Ruling

Ultimately, the ASA upheld each of the issues that were investigated, concluding that the promotion had not been administered fairly and omitted significant conditions, thereby breaching several CAP Code rules.

The ASA ruled that the promotion must not appear again in the form complained of and told Space NK to ensure that future promotions included all significant conditions within the advert (and provided a link to the full terms and conditions) and were administered fairly in a way that is designed to prevent abuse.

Why this matters

This ruling should serve as a reminder to marketers of the importance of ensuring that social media promotions are administered in accordance with CAP Code standards. While it may be tempting to incorporate components related to, for example, "like" buttons or emojis, within the promotion, marketers must consider whether they will still be able to administer the campaign fairly and in a way that protects against potential abuse. As always, promoters must also ensure that they include all significant conditions within their marketing materials.

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