ASA Ruling on Associated Newspapers Ltd t/a Daily Mail – reasonable estimate of demand for promotions

What constitutes a “reasonable estimate of the likely response” to a promotion?

The complaint

The Daily Mail, in association with Iceland Foods, ran a front-page banner that stated “FREE GIANT JAR OF MARMITE PICK UP FROM ICELAND TODAY”. Smaller text in the banner stated that the promotion was subject to availability, while stocks last and on that day only.

Further text on the promotion page inside the paper explained how to redeem the offer and repeated that stock was limited, that the promotional jars were subject to availability and would be available on a first-come, first-served basis, while stocks last.

Seven complainants challenged whether the ad breached the CAP Code after they were informed in-store that the promotional jars had run out when they tried to redeem the offer.

The response

Associated Newspapers Ltd t/a Daily Mail said that, although it was experienced in running promotions of this nature, it had not worked with Iceland recently, which made estimating demand difficult. The Daily Mail said it based its estimate on recent promotions it had run with similar brands. A total of 10,000 jars were in stock across Iceland stores and only 6,479 of these had been redeemed. Additionally, the promotion page included a store finder web address, so readers could find their nearest store. The Daily Mail said it had tried to include suffcient clear information regarding stock levels, but it had been unable to anticipate such a high level of response.

Iceland said that the parties’ lawyers had not been involved in checking the wording regarding the number of jars available due to a very tight timescale, and accepted that there had only been limited stock in some stores.

The decision

The ASA upheld the complaint. It noted that the CAP Code required promoters to:

• demonstrate that they had made a reasonable estimate of the likely response and
• either be capable of meeting the likely response or provide consumers with sufficient information, presented clearly and in a timely fashion, to make an informed decision on whether or not to participate.

The ASA said it had not been shown any documentary evidence about how the estimate of demand had been carried out, eg info about similar promotions or stock distribution for particular stores. Interestingly, a few days before the Daily Mail launched the promotion, another major supermarket had withdrawn a number of products from its shelves (including Marmite), and the ASA stated that the parties should have taken into account the impact of this publicity on the demand for the promotion. Although around 3,500 jars weren’t redeemed, some Iceland stores reportedly only had 10 jars in stock, so the ASA concluded that Iceland was incapable of meeting the likely response.

Despite the many qualifications included in the ad regarding stock availability, the ASA did not consider phrases such as “subject to availability”, “stock is limited” and “while stocks last” as sufficient to convey the limited number of jars available. On top of this, there were no means of checking which stores were participating and whether they had stock.

Why is this important?

The ASA’s decision (love it or hate it) is a good reminder of just how easy it is to have a complaint upheld where prizes or promotional items run out. The need to make a “reasonable estimate of demand” is much more than a tick-box exercise. It’s important that promoters consider how best to estimate the likely customer response (and document this!). The ASA’s comments on the parties’ failure to take account of the increased demand due to the “Marmite shortage” suggests the ASA may expect a more thorough assessment than many promoters are presently likely to carry out.

The ruling also highlights that “subject to availability” type wording cannot be relied on if a more reasonable estimate of demand should have been made.

Any practical tips?

Once you’ve estimated the likely response to your promotion, clearly the safest way to avoid a complaint will be to ensure you have enough prizes/promotional items for everyone (eg by procuring more items or targeting fewer consumers).

When running a promotion where the pool of items is limited, ensure that this is clearly signposted in initial marketing. The more limited the pool, the more information you will need to provide and the more prominently it will have to be stated. While we would still recommend including wording such as subject to availability, if there are significant limitations (eg 10 jars in a store) you will need to consider very carefully how to communicate this in your marketing.