PROMOTIONAL COMPETITIONS: WHEN IS A PROMOTIONAL COMPETITION REGULATED BY THE CONSUMER PROTECTION ACT, 68 OF 2008 (“THE CPA”)

PROMOTIONAL COMPETITIONS: WHEN IS A PROMOTIONAL COMPETITION REGULATED BY THE CONSUMER PROTECTION ACT, 68 OF 2008 (“THE CPA”)

If you are a promoter of a competition, then chances are that the CPA is likely to apply to that competition. It is important for the promotor to know when a promotional competition is regulated by the CPA and to comply with its requirements in order to avoid the risk of incurring penalties. This article will examine the relevant provisions in the CPA relating to promotional competitions and highlight the most important obligations placed on a promoter when running a promotional competition.

PROMOTIONAL COMPETITIONS IN TERMS OF THE CPA:

Section 36 of the CPA governs promotional competitions and defines a promoter as “a person who directly or indirectly promotes, sponsors, organises or conducts a promotional competition, or for whose benefit such a competition is promoted, sponsored, organised or conducted.”

A promotional competition is further defined in the CPA as “any competition, game, scheme, arrangement, system, plan or device for distributing prizes by lot or chance if:

  • it is conducted in the ordinary course of business for the purpose of promoting a producer, distributor, supplier, or association of any such persons, or the sale of any goods or services; and
  • any prize offered exceeds the threshold prescribed in terms of subsection (11) (currently R1.00),

irrespective of whether a participant is required to demonstrate any skill or ability before being awarded a prize.

Given the rather wide definitions in the CPA and the low value threshold, it is safe to say that the vast majority of competitions conducted in South Africa will be governed by the CPA.

HOW A PROMOTOR CAN COMPLY WITH THE CPA:

Very importantly, a promoter of a promotional competition must not require any consideration to be paid by the participant (e.g. the participant should not be asked to pay for the opportunity to participate in the competition or participation in the competition should not require the purchase of goods and services at a price that is more than what is ordinarily charged without the opportunity of taking part in the competition) other than the reasonable costs for posting  or transmitting an entry form.

For the purposes of ensuring fairness, the CPA also requires that a promoter may not award a prize to any person who is a director, member, partner, employee or agent of, or consultant to, the promoter or to the supplier of any goods or services in respect of that competition.

Before each competition, the promotor must prepare a set of competition rules which should be made available to any participant upon request. Regulation 11(6) of the CPA also requires that a copy of the competition rules (together with certain important information) be retained for a period of at least three years.

A promotor must ensure that an offer to participate in a promotional competition must clearly state the following:

  • the competition or benefit to which the offer relates;
  • the steps required to participate in the competition or accept the offer;
  • the basis on which the results of the competition will be determined;
  • the closing date for the competition;
  • the medium through which the results of the competition will be made known; and
  • the person from whom, the place where and the date / time on which a successful participant may receive the prize.

The promoter must further ensure that an independent accountant, registered auditor, attorney or advocate oversees and certifies the conducting of the competition and must report this through the promoter’s internal audit reporting or other appropriate validation or verification procedures.

The CPA imposes a significant burden on promotors who wish to run a promotional competition, both from an administrative and financial perspective. It is therefore important for a promoter to be aware of and adhere to these requirements as far as possible to prevent non-compliance and possible punitive measures being taken against the promoter.

Let us know if you require any assistance in drafting promotional competition rules or overseeing and certifying the running of the competition.

14 thoughts on “PROMOTIONAL COMPETITIONS: WHEN IS A PROMOTIONAL COMPETITION REGULATED BY THE CONSUMER PROTECTION ACT, 68 OF 2008 (“THE CPA”)

  1. TO WHOM IT MAY CONCERN

    We are a hair salon and we are currently in the process of running a promo which is if you spend R1500.00 or more on hair services and products you stand a chance of winning a five day holiday to Sun City Vacation Club from 17 to 21 September 2018, draw date will be the 10 September 2018.

    We urgently require assistance on how to go about drawing up the terms and conditions for the above. also if the winner does not redeem the prize within a certain time period, can we do another draw?

    You can either email on the address below or call on 0114358911/0832973094

    1. Hi Merle,
      Thank you for your query. Apologies for not responding in time before your competition ended. We would have been able to assist you in drawing up a set of Terms and Conditions for your competition. Please contact us directly through info@dommisseattorneys.co.za should you need any further assistance with competition terms and competition auditing in future.

  2. What does the CPA state with regards to the winner’s cooling off period between competitions? Is there a minimum or maximum period?

    1. 25 August: Shelley What does the CPA state with regards to the winner’s cooling off period between competitions? Is there a minimum or maximum period?
      Hi Shelley,
      Thank you for your query. Section 16 of the Consumer Protection Act, 68 of 2008 (“the CPA”) provides for a cooling-off period of 5 business days, allowing a consumer to cancel a transaction without incurring any penalty, in instances where such transactions resulted from direct marketing. The cooling-off period will commence on the day on which the transaction or agreement was concluded, or the day on which the goods or services were delivered to the consumer. This section does not apply to transactions which are governed by section 44 of the Electronic Communications and Transactions Act, 2002. Unfortunately, no provision has been made in relation to the winner’s cooling-off period between competitions in the CPA.

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  4. Does this Act apply to competitions such as winning international getaways in magazines too? Can they change the T&C’s or add to it after you actually won the competition?

    1. Hi Beaunita,
      The Consumer Protection Act, 68 of 2008 (“the CPA”) is applicable to all competitions which are conducted in the Republic of South Africa, even when the benefits are international. The CPA provides that all terms and conditions must be prepared before the beginning of the competition and made available to the Commission and participants upon request. A copy must also be retained by the promoter for a prescribed period after the competition has ended. Terms and conditions cannot be drafted or changed after a competition. Thank you for your query and please do not hesitate to contact us should you need further assistance.

  5. we are currently running a competition that runs until end of November 2018, you kindly appraise us on the fees of overseeing and running of the competition.

  6. Should all competitions be regulated by the CPA, in this case referring to one in a well known magazine? The competition’s T&C’s states that the winner is responsible for airport taxes, after winning the competition you are then asked to pay your own airport transfer fees to the hotel which amounts to 180euros. There was no mention of this in the T&C’s, so entering the competition one would assume airport transfers are included since no mention of this was made, otherwise how would you get to your destination. Can they actually change the T&C’s afterwards?

    1. Hi Beaunita,
      Thank you for your query. The Consumer Protection Act, 68 of 2008 (“the CPA”) is applicable to all competitions which are conducted in the Republic of South Africa, even when the benefits are international. The terms and conditions of a competition cannot be changed after a winner has been identified. The CPA provides that all terms and conditions must be prepared before the beginning of the competition and made available to the Commission and participants. A copy must also be retained by the promoter for a prescribed period after the competition has ended. Please do not hesitate to contact us for further assistance.

  7. Hi there
    I am investigating legal requirements regarding a subscription based competition with prizes. Firstly by skill and secondly, a small component by chance.
    My concerns:
    1) Lotteries Act
    2) CPA
    Thanks

    1. Hi Martin,
      All promotional competitions are now dealt with under section 36 of the Consumer Protection Act, 68 of 2008. We will need more information to determine if your competition falls within the Lotteries Act. Please provide this information with supporting documents for a comprehensive response. Our contact details are info@dommisseattorneys.co.za or 021 671 1550.

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