This article just provides an overview of the law in this area. You should talk to our Disputes Team for a complete understanding of how it may affect your particular circumstances.
Charles Abraham, Head of Disputes highlights what a business needs to know about the different types of sales promotions that can be used to promote its goods or services.
What is a sales promotion?
A sales promotion is a marketing device designed to encourage the purchase of a product or service (for example, a competition or prize draw). There are laws and voluntary codes that regulate most sales promotions, so do take legal advice before running any type of sales promotion. Failure to comply could result in the business:
- Having to withdraw a campaign.
- Being fined.
- Being sued.
- Suffering adverse publicity.
- Facing possible criminal prosecution.
- If a prize competition requires payment to enter, then success must depend on the exercise of sufficient skill, judgement or knowledge.
- The competition should not merely consist of guessing the outcome of a race, competition or other event, or guessing whether or not something will happen or is true (chance). The combination of payment, chance and prize would make the competition an illegal lottery.
- A prize draw is a scheme in which prizes are allocated by chance but there is no entry charge.
- In Great Britain (but not Northern Ireland), a business can require a product purchase as a condition of entry to the prize draw, but cannot inflate the price of the product to cover the cost of the promotion. Otherwise the draw will be considered an illegal lottery.
- A business can also make it a condition of entry to the draw that the participant has to accept certain conditions (such as giving personal information).
- If the draw is open to all, the chances of success must be the same for everyone regardless of how they entered and the prize allocation must be by chance.
- Participants in an “instant win” draw should be able to get their prize immediately or know they have won and how to claim their prize without delay, cost or hassle.
- A business should not offer a prize promotion without awarding the prizes described or a reasonable equivalent.
- Do not create a false impression that a prize has been won if there is no prize or the customer has to incur a cost to claim the prize, as this is a criminal offence.
Price and value promotions
- A price promotion could be money off or free extra volume.
- The promotion must be (and a business must be able to prove that the promotion is) a genuine price reduction or increase in volume that is applied to a product for a particular period of time.
- The business must say when the offer ends or that it is “subject to availability”. It must also make sure that demand for the offer is estimated as accurately as possible.
- The promotion must always be clear and not misleading. The comparison with the regular price or amount must be clearly marked and should not be ambiguous. For example, is the consumer getting 10% more volume or the same volume for 10% less cost?
- The products must be of the same quality and size as normally priced products.
- If the business is comparing the price of a product to its previous or usual price (including for volume promotions), then its previous price should have been the most recent price available for 28 consecutive days or more and comparisons cannot be made with prices that were last offered more than six months ago. The business can then reduce the sale price further, provided it mentions the interim price. Businesses must be able to provide proof of all prices used in comparison exercises.
- A business cannot suggest the sale is for a shorter period of time than is intended. However, the business can extend the sale if it announces the extension clearly.
- Businesses can use notices saying, for example, “up to 50% off” if the maximum discount quoted applies to at least 10% of the range of products on offer.
Introductory offer price
The offer must be limited in time and the promoted product must be available after the promotion has ended at the same outlet but at a higher price. Claiming an offer is limited when it is not, is a criminal offence.
Free products (for example, “buy one get one free”) and coupons
- Free” products must be that: free. A business cannot increase the price of any product the consumer must also buy to get the “free” product or add on any other charges (beyond unavoidable cost, such as the true cost of freight) to contribute towards the cost of the “free” product.
- If a business is issuing coupons to be redeemed against a particular product, it must ensure that retailers only accept the coupons against that product.
- Never describe a gift (that is, something offered to all or most participants) as a prize.
If you have any queries in relation to this post, please contact our Head of Disputes, Charles Abraham on 0113 201 0405.