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Newspapers' Health Lottery stories "outside remit" of advertising watchdog


The Advertising Standards Authority (ASA) has declined to rule on whether two front page newspaper articles promoting a new lottery competition were marketing communications, saying that the content was "outside its remit".

The advertising watchdog received complaints about the articles, which appeared on the front pages of the Daily Express and Daily Star on 28 September last year. Both papers are published by Northern and Shell, which also operates the Health Lottery.

The UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) defines an advertorial as a feature "the content of which is controlled by the marketer, not the publisher" in exchange for "a payment or other reciprocal arrangement".

"The ASA received two complaints as to whether news items published on 28 September 2011 in the Daily Express and the Daily Star were marketing communications," said the ASA ruling. "The ASA Council considered that the news items were outside remit."

The advertising watchdog also received complaints about the way the Health Lottery advertised itself.

The Health Lottery, which began operating in 2011, is a fixed prize lottery game offering prizes worth £100,000, £500 or £50 to players who choose five, four or three correct numbers. According to evidence provided by the company to the ASA, the prizes are not shared no matter how many players have the same winning lottery numbers, with an "insurance scheme" covering the lottery if the amount paid out was more than that taken in through revenue.

The national press advert, which was published in the Daily Mail on 15 October, said that players were "7 times more likely to win our top prize" than that of the national Lotto competition. The television advert, broadcast from 28 September, stated that players who matched five numbers won "a whopping one hundred thousand pounds" while on-screen text added that "T&Cs, Game Rules and Procedures apply".

Six viewers challenged the claim in the television advert because they understood that the top prize was "up to" £100,000, while another viewer said that similar claims relating to the smaller prizes available were misleading. Under its terms and conditions the Health Lottery "reserved the right to adjust the prize pay-out" if the total exceeded £15 million in any one week, and the ASA accepted its analysis that there was "no significant likelihood" of that happening.

The ASA cleared the Health Lottery of the complaints, ruling that it was "unnecessary" to include the words 'up to' before the reference to a top prize of £100,000. The chances of the company not being able to pay that amount to a player who matched five numbers was "statistically shown to be once every 200 years", it said.

In addition, it agreed with the Health Lottery that including the words "up to" in the advert could misleadingly imply that the top prize would "rarely be won" or would usually be shared.

The ASA also allowed the national press advert strapline concerning the "top prize", saying that the qualifying small print was a "clear reference" to the chances of winning the top prize rather than a reference to how many numbers had to be matched to qualify or prize amounts. "We understood that if the odds were based on winning £100,000 in both lotteries, or based on matching five numbers in the two lotteries, then the odds were likely to be different to that quoted in the ad," the adjudication said.

Marketing communications that "materially mislead" consumers or are "likely to do so" are prohibited under both the CAP Code and its broadcast equivalent, the BCAP Code.

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