The ASA has issued an interesting ruling about the importance of not changing the terms of a promotion midway through.

And especially not doing it retrospectively to fit the prize winner... 

And especially not when the prize winner is the prize provider's brother...

The CAP Code says that promoters must conduct their promotions equitably, promptly and efficiently; be seen to deal fairly and honourably with participants and potential participants and avoid causing unnecessary disappointment. It also states that promoters should not give consumers justifiable grounds for complaint. In addition, you have to make it clear who is able to enter a promotion, e.g. age, geographic location, etc.

In this case, the promoter advertised a prize draw on its website for a £5,000 garden makeover and a further £2,000 cash. The eligibility provisions in the terms and conditions stated: 

"The competition is only open to all residents in the United Kingdom aged 18 years or over except: (a) employees of the Promoter; (b) employees of agents or suppliers of the Promoter, who are professionally connected with the competition or its administration; or (c) members of the immediate families or households of (a) or (b) above".

The complainant, who believed the prize had not been awarded in accordance with the terms and conditions because it was won by an immediate family member of the garden makeover supplier, challenged whether the promotion had been administered fairly.

The ASA considered that the original eligibility criteria quoted above would prevent a brother of the prize provider from taking part. It further understood that, after the promotion ended and a winner was selected (who was indeed the brother of the prize provider), the promoter retrospectively changed the terms and conditions of the promotion so that the exclusion of the immediate family members of the prize provider was removed, therefore allowing him to retain the prize. 

The promoter maintained that their terms and conditions gave them the right to change the terms and conditions of the promotion as and when needed, thus allowing them to remove the exclusion of family members. 

The ASA considered that retrospectively removing an exclusion to allow someone to win who would have otherwise been excluded from taking part under the original terms was not a fair or honourable way to treat participants. Further, it was likely to result in disappointment and gave consumers justifiable grounds for complaint. As a result, the ASA concluded that the promotion had not been administered fairly and breached the CAP Code.

In this case, the promoter thought that the inclusion in the promotion terms of a right to change the terms meant they had free rein to do whatever they liked. The ASA rightly gave this idea short shrift. These sorts of unilateral right to cancel the promotion, change the terms, and do other similar things are often included in promotion terms, but they are to be exercised with care on an "emergency break glass" basis, usually only where the promoter or the promotion is affected by an event genuinely outside the promoter's control and the cancellation or amendment is unavoidable.

It is worth mentioning that it is usual to exclude those close to the promotion and their close family members or members of the same household to avoid exactly this situation from arising. Even where an employee or family member, or someone else associated with the promotion, wins a prize purely by chance and in accordance with the rules, it just looks bad and can have the effect of completely undermining an otherwise successful brand activation and a company's reputation. It's hard for the promoter to defend the result, even if it was pure chance.

Depending on the circumstances, this sort of outcome could also cause regulators to question whether a promoter had any intention of awarding an advertised prize, or if the whole thing was just a stunt intended to generate publicity and to return the prize to the prize provider indirectly. Based on the facts of this case, it doesn't look like that was what happened here, but failure to award an advertised prize in a prize promotion is a banned practice under UK consumer laws, so promoters should do what they can to avoid the risk – especially considering the CMA's new direct enforcement powers due to come in soon under the new DMCC Act.