ASA ruling – why Nike should have gone that extra mile

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Did you hear about Nike and the ASA? No? Perhaps you don’t follow the ASA’s rulings quite as avidly as I do, so let me tell you about it, because it was a very interesting decision (well, I thought so, anyway!).

Right, what happened was the complainant won a Nike Twitter competition which gave him the chance to buy a particular pair of limited edition Nike trainers. He didn’t win the trainers, mind. The prize was just the opportunity to purchase them, which he did, and Nike posted them off to him. So a happy winner and a happy ending, you would think.

Except it wasn’t, because the trainers never arrived. That may not surprise you. It didn’t particularly surprise me as I’ve personally been on the non-receiving end of many parcels. However, it did seem to surprise Nike, because they didn’t have a spare pair, so they apologised, issued a full refund for the purchase and, as a nice gesture of goodwill, gave the winner a 20% off voucher as well.

However, the winner wasn’t happy and complained to the ASA, challenging whether the promotion had been administered fairly. Nike argued that the nature of the promotion meant that entrants understood that the shoes they would be entitled to buy if they were won were a limited edition item and as such there was limited stock available.

The ASA accepted that the complainant had received his prize, which was the opportunity to purchase the trainers. However, the CAP Code states that promoters are responsible for all aspects and all stages of their promotions, and in the ASA’s view that included delivery of the item which the winner had purchased as a result of winning.

The ASA also thought that, limited edition or not, Nike should have had a spare pair in stock, in case of such an eventuality. And, given that it didn’t have another pair, Nike should have offered the winner the chance to buy a different piece of limited edition sports apparel for a similar price, as this would have been a ‘reasonable equivalent’ to the original prize. As a result, the ASA upheld the complaint and ruled that Nike had failed to conduct the promotion fairly or efficiently.

There are three key points that I take from this ruling. Firstly, winner management is vital, because as a promoter your responsibility only ends when your winner has actually received their prize or, in Nike’s case, when the winner had received the product which they were entitled to as a result of winning the prize. I’m tempted to say it’s a marathon not a sprint…!

The end point will be different for different promotions, depending on the concept and mechanic, but you must follow through right to the finishing line, even if that’s further ahead than you initially envisaged. To be honest, though, this is in the promoter’s interests anyway, because treating winners well turns them into ardent brand advocates.

Secondly, always assume the worst. Be imaginative about the potential disasters that could befall you and plan for every eventuality. The issue for Nike was that a parcel got lost in the post. That happens. Even with courier services, that happens quite regularly, so Nike should have anticipated it and had a contingency plan in place. In this instance, the plan could simply have been to ensure there was another pair of trainers in the stock cupboard.

Thirdly, if, despite everything, you can’t award the prize as described, you need to ensure that what you offer as a substitute – and you do have to offer a substitute – is genuinely equivalent to the original and, if you’re smart, you can cover this off in the terms and conditions. Again, if Nike had thought this promotion through properly it probably wouldn’t have been a big deal to give the winner the chance to purchase a different pair of limited edition trainers. It’s possible the winner would still have been disgruntled, but it wouldn’t actually have cost the company anything more and, more importantly, it would have been the correct and compliant thing to do. Perhaps it wasn’t so much a case of just do it as just do it right…? (Sorry, couldn’t resist!).

When it comes to prize promotions, Prizeology excels at strategic thinking. We know what might trip you up, so we can ensure your promotion is fully compliant and, due to our exceptional winner management, we can deliver the ultimate prize of satisfied winners. Do get in touch if we can help.

As well Prizeology’s chief prizeologist, Sarah Burns is a Scambassador for the National Trading Standards Scams Team and an anti-scam campaigner.
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