Updated sales promotion rules give advertisers more flexibility, says expert

Amendments were made to the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the CAP Code) by the Committee of Advertising Practice (CAP) to ensure the advertising rules correspond to consumer protection legislation in the UK. The changes came into force on 1 May.

"The changes and clarifications to the sales promotion rules, driven by a requirement to reflect changes in the law, appear to add increased flexibility for promoters in certain circumstances," said copy clearance expert Bernadine Nordmann of Pinsent Masons, the law firm behind Out-Law.com.

"Guidance will be issued by CAP in due course to assist with the interpretation of key provisions; however, the underlying key provisions of the code remain unchanged to ensure that sales promotions must not mislead, harm or offend and that consumers are dealt with fairly in all stages of the promotion," she said.

Under the sales promotion rules (18-page / 117KB PDF), businesses face restrictions on how they market offers on goods and services they sell. The rules address circumstances where consumers' demand for promotional offers outstrips the number of offers a business is able or willing to honour.

Under the old rules, businesses had to be able to show that they had made a "reasonable estimate of the likely response" to their sales promotions and demonstrate that they were "capable of meeting that response".

However, now promoters can remain compliant with the rules if, as an alternative, they show that "consumers had sufficient information, presented clearly and in a timely fashion, to make an informed decision on whether or not to participate" in a sales promotion. This could include explaining to consumers that there is limited availability of products on offer and what demand they expected would be generated by the offer, according to the new rules.

The old rules also banned promoters from encouraging consumers to buy goods or services as a means for applying for promotional items if those items are limited in number. However, under the new rules, businesses can engage in this activity so long as they make it "sufficiently clear" what limitation applies to consumers "at each stage" in a way which allows them "accurately to assess whether participation is worthwhile".

Nordmann also said that there is also now "limited increased flexibility" for businesses running promotions or prize promotions addressed or targeted at children.

The rules require businesses to ensure their marketing communications or materials contain "all applicable significant conditions or information where the omission of such conditions or information is likely to mislead".

Previously this meant that businesses needed to prominently detail the closing date, if there was one, for "purchases and submissions of entries or claims" for promotional offers "unless the promotional pack includes the promotional item or prize and the only limit is the availability of that pack". The rules now state that a closing date is only "likely" to be necessary in these circumstances.