SECTION A OVERVIEW

Updates since June 2023 (slimmed)

* Recommended read

Amendments to ad codes re DMCCA

CAP and BCAP April 7, 2025

Meta settles privacy case. Guardian Mar 22, 2025

Lewis Silkin Annual review Jan 16, 2024. Issues DMCC, Green Claims, Influencer & affiliate marketing, AdTech & AI, VOD regulation, Childhood obesity, ASA decisions

Pretty much all you need to know 

Digital, Commerce & Creative Annual Report Jan 2025

More from the busy folks at Lewis Silkin. Issues AI, Online Safety, IP (inc. AI), consumer protection: pricing, green/ethical claims, online targeting

AI

AI bill re-introduced. Wiggin March 17, 2024

Code of Practice DSIT Jan 31, 2025

ICO on using personal data in gen AI
Osborne Clarke Jan 31, 2025

Year in review: AI Law in the UK
Latham & Watkins Dec 3, 2024

THE AD CODES

Amendments to ad codes re DMCCA

CAP & BCAP April 7, 2025

See above for some important amends to the ad codes in light of the introduction of the consumer protection elements of The Digital Markets, Competition and Consumers Act 2024 (DMCCA), which elements came into force April 6, 2025. It is largely Section 3 (misleading advertising) of the ad codes that have been developed/ finessed in order closely to reflect some new influences from the DMCCA, largely related to 'invitation to purchase' and new regulations around the deployment of consumer reviews. For a lawyer's voice on the changes, Lewis Silkin here April 14, 2025.

 The twin pillars of the self-regulatory system in the U.K. are the CAP Code for ‘non-broadcast advertisements, sales promotions and direct marketing communications (marketing communications)’, and its sister BCAP Code which applies to ‘all advertisements (including teleshopping, content on self-promotional television channels, television text and interactive TV ads) and programme sponsorship credits on radio and television services licensed by Ofcom’. There is significant overlap of rules between the two codes; we largely deal with them together in this database. See CAP Bitesize August 2022 for 'a series of videos to help businesses get their ads right, by setting out the principles behind the advertising rules in an easily digestible format' and Advice for Small Businesses does what it says on the tin. 

AD CONTENT LEGISLATION 

DMCC Update 3. Fake consumer reviews
DAC Beachcroft Feb 13, 2025

The Digital Markets, Competition and Consumers (DMCC) Act 2024 is significant legislation 'washed up' in the last parliament, providing the CMA with weighty new powers and essentially absorbing CPRs 2008, with some important wrinkles, providing the consumer protection measures key in areas such as environmental claims and which are also influential in the foundations of self-regulation (see above under Ad codes). Part 4, Chapter 1 carries misleading actions/ omissions formerly under CPRs, with some refinement of those and additions to material information requirements which are designed in part to address 'dark patterns'. CMA's Unfair commercial practices from April 4, 2025 provides guidance. Schedule 20 sets out 'commercial practices which are in all circumstances considered unfair', which include significant new clauses (pt. 13) related to consumer reviews. These consumer protection elements came into force April 6, 2025; for offenses earlier than that, the CPRs will continue to apply. The act carries other important provisions for the digital landscape but less directly relevant to advertising. Self-regulatory impact is provided by CAP/BCAP's Amendments to the advertising codes published April 7, 2025. Lewis Silkin's 9/12 guide to the law here and their DMCC hub here.

The UK self-regulatory position now closely reflects the statutory position and the ASA is the 'established means' of advertising regulation; we therefore don't dwell on legislation, albeit in channel rules in particular it's best to know the law as well as the ASA's requirements. As the act brings online financial scam ads into its scope, impact here from Burges Salmon Dec 7, the Online Safety Act may also influence marketers' and agencies' corporate lives: Update from Ofcom here October 17, 2024 and they published their Illegal Harms Codes of Practice December 2024; Wiggin on the issue here Jan 16.

MISLEADING ADVERTISING

Amendments to ad codes re DMCCA

CAP & BCAP April 7, 2025. Some amends to S3

Around 70% of the complaints the ASA receives relate to misleading advertising, covered in Section 3 of the CAP Code and the same section of the BCAP Code. This is a significant slice of the codes, and includes, for example, issues of price, substantiation, qualification, and comparisons in advertising. Various forms of misleading advertising (pricing, comparative, substantiation, qualification etc.) are set out under the code sections linked above, though we suggest special attention to price issues as these are anyway sensitive, also subject to statutory provisions, and in of themselves can be somewhat complex. Guidance: key is 'misleading ads' from CAP March 2024 is here, and their Advice online April 2025 here. In January 2022, CAP published Six top tips to avoid misleading advertising and on April 20, 2023 a Misleadingness checklist. Misleadingness in law is (largely) from Regulation 5 of the CPRs, which covers misleading actions and Regulation 6, which deals with misleading omissions. The Digital Markets, Competition and Consumers Act 2024 (DMCCA) Part 4, Chapter 1 Misleading actions (226) and Misleading omissions (227). Comparative advertising in law is provided for under The Business Protection from Misleading Marketing Regulations 2008, Regulation 4, in part a transposition of the Misleading and Comparative Advertising Directive 2006 /114/EC. Also see Q&A: misleading advertising practices in United Kingdom from Herbert Smith Freehills LLP/ Lex June 2024,  Substantiation 101 from CAP 23rd February, 2023 and Misleading ads CAP News March 7, 2024.

INFLUENCERS/ RECOGNITION OF ADVERTISING

Problematic social media prize draw. Lewis Silkin Feb 25, 2025

Influencer Marketing - Key Advice Resources CAP News Nov 28, 2024

Influencers and their business interests RPC Oct 17, 2024

Top tips for responsible influencer marketing CAP News July 31, 2024

Section 2 of the CAP Code covers recognition of marketing communications, and the BCAP Code Section 2 does the same in broadcast. There’s a lot of guidance from CAP in this territory; most of it can be found here; a key piece is Influencers' Guide to making clear that ads are ads from the CMA/ CAP March 2023 and a ‘Special Edition Influencer Marketing Insight' includes a flow chart, cheat sheet and affiliate marketing infographic etc. The CMA themselves provide guidance from a consumer law perspective with Hidden ads: Being clear with your audience, update of 3 November 2022; CMA guide for brands here, for content creators here. IMTB/ ISBA's Influencer Marketing Code of Conduct was updated November 2024. Influencers can be animals - Fur warning: the rules that apply to pet influencers CAP News, 08 Sep 2022. The ASA now include a page on their website which identifies influencers who have failed to comply with rulings/ warnings and in December 2023 announced a partnership with Instagram and five content creators to publish a series of new videos, aimed at sharing key aspects of the rules that all UK advertisers must follow. The vids can be found via the link. This review of digital ad regulation by Gowling 30 April 2024 provides some instructive cases and commentary (video) and this 2022 (we think) Influencer Marketing Guide from DLA Piper is a comprehensive review of the rules in all the major jurisdictions including the U.K.

ENVIRONMENTAL CLAIMS

EDF ruling Feb 19, 2025 (U)

WPP reported to watchdog for promoting polluting clients

Perspective February 11, 2025

Lloyds Bank rulings Lewis Silkin January 8, 2025*

This is obviously a hot topic; the CAP and BCAP codes anyway devote whole sections to the subject: 11 and 9 respectively, set out in our content section B below. The CMA Green Claims Code was published September 20th 2021, their checklist same date here; CAP guidance will 'complement' the CMA's work, which was developed in close consultation with ASA/CAP. Commentary on the CMA guidance from Macfarlanes/ Lex here. The Ofcom Broadcasting Code article 3e C (iv) of appendix 2, from the AVMSD, prohibits in broadcast commercial communications the encouragement of ‘behaviour grossly prejudicial to the protection of the environment’. More specific sector activity is reported in Green claims in fashion retail from TLT LLP/ Lex Feb 29, 2024 and the CMA's September 18, 2024 'Green claims code for fashion businesses' represents the culmination of their extensive work in this territory - flesh on these bones from Lewis Silkin here. 

Green claims update: February 2025 RPC

Adlaw Insights podcast - Sustainability. Lewis Silkin Dec 9, 2024

The ASA, AI & Greenwashing Travers Smith Oct 22, 2024

• Key Advice Resources on Green Claims. CAP News August 7, 2024. 'From eLearning and formal Advertising Guidance to Insight articles and our AdviceOnline library - we have a whole host of resources on environmental ‘green’ claims to help marketers get it right first time.'
• It’s not that easy being ‘green’ – promoting good work without misleading by omission. CAP News June 5, 2024. Some pretty brutal rulings; 
• Misleading environmental claims and social responsibility key advertising guidance, updated June 23, 2023; reflects recent decisions and carries new emphasis on social responsibility. Helpful commentary from Lewis Silkin/ GALA here; 
• DLA Piper's August 2024 Environmental Advertising Claims Guide includes the U.K. in its comprehensive coverage;
• Updated environmental guidance: green disposal claims CAP News 28 November, 2023. Includes consumer research and the ASA's 28/11 Greenspeaking with Confidence event. Lively commentary on recycling claims from GALA/ Brinsley Nov 30 here; guidance on green disposal claims is under the June 2023 ad guidance linked above, section 3.1;

• Environmental Claims Special Edition of the Insight Newsletter is from CAP Insight June 5, 2023;

• Navigating tougher restrictions on environmental claims in advertising from Herbert Smith Freehills/ Lex March 27, 2024 is a very good round-up of what to look out for, as is Lewis Silkin's Environmental Advertising of April 2nd 2024, which includes the ASA and CMA perspective and a number of recent cases; see also their DMCC/sustainability warnings of Jan 19, 2025. The same erstwhile company's April 2024 Environmental regs tracker covers broad plans from the UK and EU.  

Position on sustainability regulations and UK defence 11/03/25

FCA update here. Final SDR rules in Handbook Notice 127 28/2/25

Clarifications to the Sustainability Disclosure Requirements
 Burges Salmon re FCA consultation Dec 11, 2024

FCA Sustainability disclosure and labelling regime 

Above includes implementation timeframe. Last updated Nov 1, 2024

The FCA has granted temporary flexibility until April 2, 2025

• Chapter 4.3 of the FCA's ESG handbook provides the new anti-greenwashing rule in force May 31, 2024;
• Accompanying FCA Guidance (FG24/3); illuminating commentary from Hogan Lovells July 22, 2024 here;
• The FCA's Sustainability Disclosure Regime: A Practical Implementation Guide. Baker McKenzie April 4, 2024;
• Herbert Smith Freehills July 12, 2024 Impact of the EUCS3D on UK companies;
• New guidance published on the development of the UK SRS. Slaughter and May/ Lex September 30, 2024;
• ESG UK Regulatory Outlook September 2024 from Osborne Clarke includes CSRD FAQs, FCA extension, Scotland's Circular Economy Act, EU's ESG naming guidelines

​

SECTION B CONTENT RULES

1. SELF-REGULATION: THE CAP AND BCAP CODES

1.1. Recognition of advertising/ marcoms

1.2. Misleading advertising

1.2.1. Comparisons

1.2.2. Endorsements and testimonials

1.3. Harm and offence

Gender stereotyping

1.4. Environmental claims

2. LEGISLATION IN ADVERTISING (content)

2.1. Digital Markets, Competition & Consumers Act

2.2. Ofcom Broadcasting Code/ AVMS Directive

2.3. Pricing

Amendments to ad codes re DMCCA
CAP, BCAP Apr 7, 2025. Incorporated below where applicable 

The scope of the CAP code is here and BCAP's here
Note Where we amalgamate the two codes' rules, we do so only when they are to all and intents and purposes the same rule. They are distinguished by the term 'marketing communications' in the case of the CAP Code and 'advertisements' for BCAP

1.1. Recognition of marketing communications

CAP Code Section 2

• Rule 2.1: Marketing communications must be obviously identifiable as such

• Rule 2.2: Unsolicited e-mail marketing communications must be obviously identifiable as marketing communications without the need to open them

• Rule 2.3: Marketing communications must not falsely claim or imply that the marketer is acting as a consumer. Definition. A consumer is anyone who is likely to see a given market communication, whether in the course of business or not.(CAP Code scope) or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not apparent from the context (This rule reflects a prohibited practice from Schedule 20 of the DMCCA. See note in Section 3 for more details) 

• Rule 2.4: Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them ‘advertisement feature’ (This rule reflects a prohibited practice from Schedule 20 of the DMCCA. See note in Section 3 for more details)

Guidance and rulings (within guidance) 

Key advice resources November 2024

Advice online March 2023 Recognising ads: Overview

Advice online March 2023 Recognising ads: advertisement features 

Advice online March 2023 Recognising ads: Social media and influencer marketing

CAP News March 2021 Influencing Responsibly - Make clear upfront when ads are ads

BCAP Code, Section 2: Recognition of advertising

• Rule 2.1: Advertisements must be obviously distinguishable from editorial content, especially if they use a situation, performance or style reminiscent of editorial content, to prevent the audience being confused between the two. The audience should quickly recognise the message as an advertisement (This rule reflects a prohibited practice from Schedule 20 of the DMCCA. See note in Section 3 for more details).

• If used in an advertisement, an expression or sound effect associated with news bulletins or public service announcements (for example, ‘news flash’) needs special care. The audience should quickly recognise the message as an advertisement (rule 2.2)

• The use of a title, logo, set or music associated with a programme that is broadcast on that medium needs special care. The audience should quickly recognise the message as an advertisement” (rule 2.3)

• Television advertisements, except for programme promotions must not:
   

• Refer to themselves in a way that might lead viewers to believe they are watching a programme
• Feature, visually or orally, anyone who currently and regularly presents news or current affairs on television
• Include extracts from broadcasts of parliamentary proceedings (rule 2.4)
   

• Radio only: A person who currently and regularly reads the news on radio or television may voice radio advertisements but must not advertise products or services that are likely to be seen to compromise the impartiality of their news-reading role (rule 2.5)

Amendments to ad codes re DMCCA
CAP, BCAP Apr 7, 2025. Incorporated below where applicable 

CAP Code and BCAP Code, Section 3 (link is to the section)

• The CAP and BCAP codes were amended in April 2025 as a result of the introduction of The Digital Markets, Competition and Consumers Act 2024 (DMCCA), as explained in our earlier Overview Section A and referenced above. The CMA is given new, direct powers in the DMCCA, meaning that they can hand out very substantial fines in the event of transgression. While the ASA doesn't enjoy the same reach, they are clearly concerned to reflect the legislation as closely as possible
• The first link will take you to the table showing the amends; these are largely related to Section 3 (misleading advertising) and are pretty extensive, albeit often a finessing of existing rules, and very important, especially in the area of misleading omissions, as these have an impact on, for example, pricing. We suggest close attention to that sub-head within Section 3 and 'endorsements and testimonials' in particular, as that latter includes new provisions related to the DMCCA's Schedule 20 which deals with the veracity of consumer reviews. CAP and BCAP's Section 3 also includes comparative advertising in its several forms
• As this is a very long section of the code, we have shown below only the key clauses and a few other 'highlights,' such as comparative advertising, that we think are of most interest to users. We have also included key guidance papers, which include rulings. It's important, especially at this time, to understand the full code in the context of the amends that are linked above and again here
• * Finally by way of introduction, you will see a number of clauses carrying an asterisk. This is to identify those provisions that reflect what CAP describe as 'prohibited practices', which are those marketing behaviours/ communications found in the DMCCA's Schedule 20 linked above and described there as 'commercial practices which are in all circumstances considered unfair'. In other words, they don't require a 'transactional test' (whether breach of the clause is 'likely to cause the average consumer to take a transactional decision that the consumer would not have taken otherwise') - they're just plain wrong. See the CAP Code appendix 1 for a fuller (and probably rather better) explanation * 

.....................................................

• 3.1 CAP & BCAP. Marketing communications/ advertisements must not materially mislead or be likely to do so
• 3.2 CAP, 3.4 BCAP. Obvious exaggerations ('puffery') and claims that the average consumer who sees the marketing communication/ advertisement is unlikely to take literally are allowed provided they do not materially mislead
• 3.3 CAP, 3.2 BCAP. Marketing communications/ advertisements must not omit material information or information required to be included by law. This includes providing such information in a way that is unclear or untimely, or in a way that the consumer is unlikely to see or hear it. Regard will be had to any limitations (e.g. as to time or space) resulting from the means of communication used and steps taken by the marketer to overcome these by providing the information by other means. “Material information” is information that the average consumer needs to take an informed transactional decision (as defined in Appendix 1). 
• 3.4 CAP, 3.3 BCAP. For marketing communications/ advertisements that quote prices for advertised products, omitting material information (for the purposes of rule 3.3 - BCAP 3.2) includes omitting any of the following information, unless it is already apparent from the context:

3.4.1. the main characteristics of the product

3.4.2. the identity (and, if different, trading name) and business address (and, if different, the service address) and any business email address of the marketer and any other trader on whose behalf the marketer is acting

3.4.3. the total price of the advertised product, including any fees, taxes, charges or other payments that the consumer will necessarily incur if the consumer purchases the product. If, owing to the nature of the product, the whole or any part of the total price cannot be calculated in advance, how the price (or that part of it) will be calculated

3.4.4​ any freight, delivery, or postal charges, including any taxes, not included in the total price of the product but which the consumer may choose to incur (or, where those additional taxes or charges cannot reasonably be calculated in advance, the fact that they may be payable)

3.4.5 the arrangements for payment, delivery, performance or complaint handling, if those depart from the marketer’s published practice in relation to those arrangements

3.4.6 that consumers have the right to withdraw or cancel, if they have that right (see rule 3.56 CAP)

• 3.5 CAP, 3.6 BCAP. Marketing communications/ advertisements must not materially mislead by omitting the identity of the marketer. Some marketing communications must include the marketer's identity and contact details. Marketing communications that fall under the Use of Data for Marketing or Employment sections of the Code must comply with the more detailed rules in those sections (last sentence exclusive to CAP). Marketers should note the law requires marketers/ advertisers to identify themselves in some marketing communications/ advertisements. Marketers/ advertisers should take legal advice
• 3.6 CAP. Subjective claims must not mislead the consumer; marketing communications must not mislead by implying that expressions of opinion are objective claims​
• 3.7 BCAP (this rule is in CAP's Section 2). Advertisements must not falsely imply that the advertiser is acting as a consumer or for purposes outside its trade, business, craft or profession. Advertisements must make clear their commercial intent, if that is not obvious from the context

Guidance/ advice 

Misleading advertising Advice online April 2025

Misleading ads CAP News March 2024

 Misleadingness checklist April 2023 

 Six top tips to avoid misleading advertising January 2022

Prices – General Advice online January 2025

Availability April 2025

The  Sales Promotions sub-head under our channel section C includes more pricing rules/ guidance

See also provisions from the DMCCA 2024 under Point 2 in this section

English High Court considers when ads are comparative by implication

Osborne Clarke/ Lex April 9, 2024

The ASA will consider unqualified superlative claims as comparative claims against all competing products. Superiority claims must be supported by evidence unless they are obvious puffery (i.e. claims that consumers are unlikely to take literally). Objective superiority claims must make clear the aspect of the product or service or the marketer’s/ advertiser’s performance that is claimed to be superior (CAP Code and BCAP Code, Comparisons principle). A quick guide to comparative advertising from CAP News Feb 2021 and Shall I compare thee…? Making comparisons with identifiable competitors. CAP News May 4th, 2023

Comparisons with identifiable competitors

• Marketing communications/ advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product (CAP 3.32; BCAP 3.34 - the BCAP version adds 'or service' after 'product')
• Marketing communications/ advertisements must compare products meeting the same needs or intended for the same purpose (CAP 3.33; BCAP 3.35)
• Marketing communications/ advertisements must objectively compare at least one material, relevant, verifiable and representative feature of those products, which may include price (CAP Code, rule 3.34; BCAP Code, rule 3.36 - the BCAP version adds 'or services' after 'products')
• Marketing communications/ advertisements must not create confusion between the marketer/advertiser and its competitors or between the marketer's product, trade mark, trade name or other distinguishing mark and that of a competitor (CAP 3.36; BCAP 3.37)
• Certain EU agricultural products and foods are, because of their unique geographical area and method of production, given special protection by being registered as having a ‘designation of origin’. Products that are registered as having a ‘designation of origin’ should be compared only with other products with the same designation (CAP 3.36; BCAP 3.38)

Other comparisons

• Marketing communications/ advertisements that include comparisons with unidentifiable competitors must not mislead, or be likely to mislead, the consumer. The elements of the comparison must not be selected to give the advertiser an unrepresentative advantage (CAP 3.37; BCAP 3.39)

Price comparisons

• Marketing communications that include a price comparison must not mislead by failing to make the basis of the comparison clear (CAP 3.38; BCAP 3.40)
  CAP has published a Help Note on Retailers' Price Comparisons and a Help Note on Lowest Price Claims and Price Promises
• Price comparisons must not mislead by falsely claiming a price advantage. Comparisons with recommended retail prices (RRPs) are likely to mislead if the RRP differs significantly from the price at which the product or service is generally sold (CAP 3.39; BCAP 3.41)

• Marketing communications/ advertisements must not mislead the consumer about who manufactures the product (CAP 3.40; BCAP 3.42) *

• Marketing communications/ advertisements that include a comparison with an identifiable competitor must not discredit or denigrate another product, marketer/ advertiser or advertisement (BCAP only), or a trade mark, trade name or other distinguishing mark (CAP 3.41; BCAP 3.43)

• Marketing communications/ advertisements must not take unfair advantage of the reputation of a competitor’s trade mark, trade name or other distinguishing mark or of the designation of origin of a competing product (CAP 3.42; BCAP 3.44)

• Marketing communications/ advertisements must not present a product as an imitation or replica of a product with a protected trade mark or trade name (CAP 3.43; BCAP 3.45. The BCAP version adds 'or service' after 'product')

Rulings search ‘Comparisons’

https://www.asa.org.uk/codes-and-rulings/rulings.html?q=Comparisons

A significant July 2022 ruling against the verifiability of the AA's 'No.1'advertising after an RAC complaint

Rulings search ‘Denigration’

https://www.asa.org.uk/codes-and-rulings/rulings.html?q=denigration+

The below rules relate to marketing materials under the remit of the CAP/ BCAP Codes (see the Scope of the Code).

Marketers are advised to seek legal advice on their other obligations in relation to the prohibition on fake consumer reviews

• Marketing communications must not contain fake consumer reviews. “Consumer review” means a review of a product, a trader or any other matter relevant to a transactional decision. A fake consumer review is a
  consumer review that purports to be, but is not, based on a person’s genuine experience (CAP 3.44; BCAP 3.46) *
• Marketing communications must make clear where consumer reviews have been incentivised (CAP 3.45; BCAP 3.47) *
• * (CAP 3.46; BCAP 3.48) Marketers must not publish consumer reviews, or consumer review information, in a misleading way in marketing communications. Publishing in a misleading way includes (for example):

• Failing to publish, or removing from publication, negative consumer reviews whilst publishing positive ones (or vice
  versa)
• Giving greater prominence to positive consumer reviews over negative ones (or vice versa)
• Omitting information that is relevant to the circumstances in which a consumer review has been written (including that a person has been commissioned to write the review). “Consumer review information” means information that is derived from, or is influenced by, consumer reviews. *

• Marketers must hold documentary evidence that a testimonial or endorsement used in a marketing communication is genuine, unless it is obviously fictitious, and hold contact details for the person who, or organisation that, gives it (CAP 3.47) 

• Testimonials or endorsements used in advertising must be genuine, unless they are obviously fictitious, and be supported by documentary evidence. Testimonials and endorsements must relate to the advertised product or service. Claims that are likely to be interpreted as factual and appear in advertisements must not mislead or be likely to mislead (BCAP 3.49)

• Claims that are likely to be interpreted as factual and appear in a testimonial must not mislead or be likely to mislead the consumer (CAP 3.49) 

• Testimonials must relate to the advertised product (CAP 3.48)

• Marketing communications/ advertisements must not feature a testimonial/ testimonials without permission (CAP & BCAP 3.50) Exceptions are normally made for accurate statements taken from a published source, quotations from a publication or references to a test, trial, professional endorsement, research facility or professional journal, which may be acceptable without express permission (CAP only for this caveat, rule 3.50) 

• Marketing communications/ advertisements must not display a trust mark, quality mark or equivalent without the necessary authorisation. Marketing communications/ advertisements must not claim that the marketer/ advertiser (or any other entity referred to), the marketing communication/ advertisement, or the advertised product or service has been approved, endorsed or authorised by any public or private body if it has not, or without complying with the terms of the approval, endorsement or authorisation (CAP 3.52; BCAP 3.51) * 

• Marketers must not refer in a marketing communication to advice received from CAP or imply endorsement by the ASA or CAP (CAP 3.51)

• Marketing communications/ advertisements must not falsely claim that the marketer/ advertiser, or other entity referred to in the marketing communication/ advertisement, is a signatory to a code of conduct. They must not falsely claim that a code of conduct has an endorsement from a public or private body (CAP 3.53; BCAP 3.52) * 

• Marketing communications must not use the Royal Arms or Emblems in a misleading way that implies due authorisation or approval by a member of the Royal Family where none has been given. If such authorisation or approval is required (which it normally will be), the Lord Chamberlain’s Office should be contacted in the first instance. References to a Royal Warrant should be checked with the Royal Warrant Holders' Association (CAP 3.54)

Advice/ guidance/ rulings

Claims in testimonials & endorsements
Advice Online April 16, 2025

Testimonials and endorsements
Advice Online April 9, 2025

Rulings search ‘Endorsements and testimonials’

https://www.asa.org.uk/codes-and-rulings/rulings.html?q=endorsements+and+testimonials

The overarching principle of this section is that marketers should consider the prevailing standards in society and the context in which a marketing communication is likely to appear, in order to minimise the potential risk of causing harm or serious or widespread offence (CAP Code, Harm and Offence Principle). The context in which an advertisement is likely to be broadcast must be taken into account to avoid unsuitable scheduling; see Section 32 Scheduling (BCAP Code additional Harm and Offense principle)

• Marketing communications must not contain anything that is likely to cause serious or widespread offence. Particular care must be taken to avoid causing offence on the grounds of: age; disability; gender; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. Compliance will be judged on the context, medium, audience, product and prevailing standards
• Marketing communications may be distasteful without necessarily breaching this rule. Marketers are urged to consider public sensitivities before using potentially offensive material. The fact that a product is offensive to some people is not grounds for finding a marketing communication in breach of the Code (CAP 4.1)
• Advertisements must contain nothing that could cause physical, mental, moral or social harm to persons under the age of 18 (BCAP 4.1)
• Marketing communications must not cause fear or distress without justifiable reason; if it can be justified, the fear or distress should not be excessive. Marketers must not use a shocking claim or image merely to attract attention (CAP 4.2) Advertisements must not distress the audience without justifiable reason. Advertisements must not exploit the audience's fears or superstitions (BCAP 4.10)
• Advertisements must not cause serious or widespread offence against generally accepted moral, social or cultural standards. Particular care must be taken to avoid causing offence on the grounds of: age; disability; gender; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation (BCAP 4.2)
• References to anyone who is dead must be handled with particular care to avoid causing offence or distress (CAP 4.3)
• Advertisements must not exploit the special trust that persons under the age of 18 place in parents, guardians, teachers or other persons (BCAP 4.3)
• Marketing communications must contain nothing that is likely to condone or encourage violence or anti-social behaviour (CAP 4.4) Advertisements must not condone or encourage violence, crime, disorder or anti-social behaviour (BCAP 4.9)
• Advertisements must not condone or encourage harmful discriminatory behaviour or treatment. Advertisements must not prejudice respect for human dignity (BCAP 4.8)
• Advertisements must not include material that is likely to condone or encourage behaviour that prejudices health or safety (BCAP 4.4)
• Marketing communications, especially those addressed to or depicting a child, must not condone or encourage an unsafe practice; see Section 5: Children (CAP 4.5)
• Marketing communications must not encourage consumers to drink and drive. Marketing communications must, where relevant, include a prominent warning on the dangers of drinking and driving and must not suggest that the effects of drinking alcohol can be masked (CAP 4.6)
• Marketers must take particular care not to include in their marketing communications visual effects or techniques that are likely to adversely affect members of the public with photosensitive epilepsy (CAP 4.7)

• Radio only – Advertisements must not include sounds that are likely to create a safety hazard, for example, to those listening to the radio while driving (BCAP 4.5)

• Television only – Advertisements must not include visual effects or techniques that are likely to affect adversely members of the audience with photosensitive epilepsy. For further guidance, see Ofcom's Guidance Note for Licensees on Flashing Images and Regular Patterns in Television at: Section-2-Guidance-Notes.pdf (Annex 1) BCAP 4.6

• Television only. Noise levels Advertisements must not be excessively noisy or strident. The maximum subjective loudness of advertisements must be consistent and in line with the maximum subjective loudness of programmes and junction material. Broadcasters must endeavour to minimise the annoyance that perceived imbalances could cause, with the aim that the audience need not adjust the volume of their television sets during programme breaks. However, BCAP recognises that commercial breaks sometimes occur during especially quiet parts of a programme, with the result that advertisements at normally acceptable levels seem loud in comparison. Measurement and balancing of loudness levels should preferably be carried out using a means of subjective loudness measurement conforming to standards derived from relevant ITU recommendations. BCAP considers that subjective loudness-based measurement techniques represent best practice. However, if broadcasters use a peak programme meter (PPM) instead, the maximum level of the advertisements must be at least 6dB less than the maximum level of the programmes to take account of the limited dynamic range exhibited by most advertisements. Broadcasters are urged to refer to BCAP’s guidance on sound levels in advertising for more information on the technical aspects of the rule and information about its application

• Television only – Animals must not be harmed or distressed as a result of the production of an advertisement (BCAP 4.12)

• Advertisements must not condone or encourage behaviour grossly prejudicial to the protection of the environment (BCAP 4.12)
• Marketing communications must not portray or represent anyone who is, or seems to be, under 18 in a sexual way. However, this rule does not apply to marketing communications whose principal function is to promote the welfare of, or to prevent harm to, under-18s, provided any sexual portrayal or representation is not excessive (CAP 4.8, BCAP 4.13)
• Marketing communications/ advertisements must not include gender stereotypes that are likely to cause harm, or serious or widespread offence (CAP 4.9, BCAP 4.14) See Advertising Guidance: Depicting gender stereotypes likely to cause harm or serious or widespread offence

Advice/ guidance/ rulings 

Don’t cross a line that could damage your campaign
CAP News November 21, 2024

Updated guidance to make sure your ads don’t offend
CAP News March 27, 2025

‘Don’t Flub It Up!  CAP News Nov 12, 2020. How you can and can't use swear words

Rulings search ‘Offense’

https://www.asa.org.uk/codes-and-rulings/rulings.html?q=harm+and+offense

• International Women’s Day 2022 CAP News March 10, covers roles and characteristics, sexual objectification and body image, with multipe references to relevant cases and other associated guidance  ​
• Marketing communications must not include gender stereotypes that are likely to cause harm, or serious or widespread offence (CAP 4.9, BCAP 4.14). Also shown above. See Advertising Guidance Depicting gender stereotypes likely to cause harm or serious or widespread offence

• The first rulings under the Gender Stereotyping new rule happened 14/8/19; both VW E-Golf and Philadelphia Cheese were found to have breached the rules, but the Buxton water complaint on the same grounds was not upheld

CAP Code Section 11

BCAP Code Section 9
 

• The basis of environmental claims must be clear. Unqualified claims could mislead if they omit material (formerly 'significant') information (CAP 11.1; BCAP 9.2)
• The meaning of all terms used in marketing communications/ advertisements must be clear to consumers (CAP 11.2; BCAP 9.3)
• Absolute claims must be supported by a high level of substantiation. Comparative claims such as "greener" or "friendlier" can be justified, for example, if the advertised product provides a total environmental benefit over that of the marketer's previous product or competitor products and the basis of the comparison is clear (CAP 11.3; BCAP 9.4)
• Marketers must base environmental claims on the full life cycle of the advertised product, unless the marketing communication states otherwise, and must make clear the limits of the life cycle. If a general claim cannot be justified, a more limited claim about specific aspects of a product might be justifiable. Marketers must ensure claims that are based on only part of the advertised product's life cycle do not mislead consumers about the product's total environmental impact (CAP 11.4; BCAP 9.5)
• Marketers must not suggest that their claims are universally accepted if a significant division of informed or scientific opinion exists (CAP 11.5; BCAP 9.6)
• If a product has never had a demonstrably adverse effect on the environment, marketing communications must not imply that the formulation has changed to improve the product in the way claimed. Marketers may, however, claim that a product has always been designed in a way that omits an ingredient or process known to harm the environment (CAP 11.6; BCAP 9.7)
• Marketing communications/ advertisements must not mislead consumers about the environmental benefit that a product offers; for example, by highlighting the absence of an environmentally damaging ingredient if that ingredient is not usually found in competing products or by highlighting an environmental benefit that results from a legal obligation if competing products are subject to that legal obligation (CAP 11.7; BCAP 9.8)
• This rule must be read in conjunction with Directive 2010/30/EU and the Energy Information Regulations 2011 on labelling and standard product information of the consumption of energy and other resources by energy-related products and its subsequent delegated regulations. The Directive introduces an information and labelling framework whereby delegated regulations will detail which products need to contain an energy efficiency rating or fiche. The rule only applies to products which are subject to a delegated regulation
  From 1 August 2017 Regulation EU 2017/1369 mandates a rescaling of existing energy labelling to provide more accurate information for consumers, including in advertising, where the energy efficiency class of a product and the range of classes available will need to be given. The existing delegated regulation continues to apply whilst that rescaling process is ongoing. (GRS note: The Regulation is retained legislation in the U.K. See also The Energy Information (Amendment) Regulations 2020). The rule:
• Marketing communications for specific energy-related products, subject to a delegated regulation, that include energy-related information or disclose price information, must include an indication of the product's energy efficiency class i.e. in the range A+++ to G.  (CAP Code, rule 11.8; BCAP Code, rule 9.9)
• The following rule is subject to the same conditions as above, i.e. the rule must be read in conjunction with etc.
• Marketers must make product fiche (data sheet) information about products that fall under delegated regulations available to consumers before commitment (CAP 11.9; BCAP 9.10)

The CMA

CMA Green Claims Code September 2021

See also  the CMA's Green Claims Checklist

Key guidance

Environmental claims: General
Advice Online April 17, 2025

It’s not that easy being ‘green’

CAP News June 5, 2024

Special Edition of the Insight Newsletter

CAP Insight June 5, 2023

Misleading environmental claims & social responsibility 

Significant June 2023 guidance

 ASA: Our work on Climate Change and Environmental Claims

 The coming into force on April 6, 2025 of consumer protection measures in The Digital Markets, Competition and Consumers (DMCC) Act 2024 is significant as along with new/ finessed rules, replacing or absorbing those from Consumer Protection Regulations (CPRs), the act provides the CMA with new direct powers, such that the authority can apply significant fines without the tedious process of court hearings. This means that transgression can be even more expensive as well as reputationally damaging. The core of this legislation for our purposes is found in Part 4, Chapter 1, which carries the misleading actions and omissions clauses that regulate much commercial practice and which are influential in the foundations of self-regulation (see above and Appendix 1 of the CAP Code for ASA/CAP's treatment of these clauses and others). 

While the Act absorbs much of the CPRs, there is important nuance in measures related to 'omission of material information from invitation to purchase' (section 230), which indicates that the CMA has its sights fixed on some pricing practices. Schedule 20 provides 'commercial practices which are in all circumstances considered unfair', the former EU 'blacklist', which doesn't require the transactional test applied to misleading practices and which include significant new clauses (pt. 13) related to consumer reviews. CMA's Unfair commercial practices from April 4, 2025 provides guidance 

The Business Protection from Misleading Marketing Regulations 2008 (the BPRs)

The BPRs implement Directive 2006/114/EC of the European Parliament and of the Council concerning misleading and comparative advertising. The aim of the Directive is to protect traders against misleading advertising and to lay down the conditions under which comparative advertising is permitted. Key extracts are here. These regulations continue to reference the CPRs, now revoked.

 and Appendix 3 of the BCAP Code provide useful overviews of this 

The other significant piece of legislation that affects general commercial content rules in Broadcast and some online media including Video-sharing platforms is that from the Ofcom Broadcasting Code (OBC) Appendix 2, taken from the Audiovisual Media Services Directive 2010/13/EU, amended by Directive 2018/1808 and providing that audiovisual commercial communications shall not (non-exhaustively):

(i) prejudice respect for human dignity

(ii) include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation

(iii) encourage behaviour prejudicial to health or safety

The regulation of advertising on videosharing platforms from Ofcom in December 2021 sets out final arrangements in the context of amends to the AVMS Directive from Directive 2018/1808 linked above; see P.7 in particular

Prices in marcoms often attract competitor and regulator attention and should be reviewed with legal advisors

• UK advertising's first regulatory port-of-call is the ASA and self-regulation; in the case of pricing, rules are set out principally in CAP Code's Section 3 (3.17 to 3.26) and the BCAP equivalent. These rules were overhauled at the time of the enactment of the DMCCA (see below) and therefore very closely reflect statutory requirements. CAP also provides guidance in this territory: Prices – General from January 2025 is a good start
• The Digital Markets, Competition and Consumers Act 2024 (DMCCA) has upped the ante in this territory as the act gives new and significant powers to the competition authority - the CMA - who are particulary exercised about aggressive/ deceptive pricing practices such as 'drip pricing' and other aspects of dark patterns. The DMCCA's Regulation 230 provides rules related to an 'invitation to purchase' (a commercial practice involving the provision of information to a consumer - (a) which indicates the characteristics of a product and its price, and (b) which enables, or purports to enable, the consumer to decide whether to purchase the product or take another transactional decision in relation to the product)
• Other influences that users should be aware of are Price Marking Order 2004, retained law taken from the Product Price Directive 98/6/EC, and its amendment The Price Marking (Amendment) Order 2024, in force October 1, 2025. Lewis Silkin here November 11, 2024 and official explanatory memorandum here 
• Chartered Trading Standards Institute’s Guidance for traders on pricing practices produced by the CTSI at the request of the Department of Business, Energy and Industrial Strategy pretty much completes the regulatory picture, though as we suggest above, prices in advertising should be reviewed with your own or your client's advisors

Key case

CJEU decision in Citroën/ ZLW case ruled that the price must be the ‘final’/ selling price including VAT/ taxes and other price components/ necessary costs. The judgment is here: 

http://curia.europa.eu/juris/document/document.jsf?text=&docid=181466&doclang=EN

SECTION D SRO SERVICES

The Copy Advice service provided by the Committee of Advertising Practice (CAP) primarily advises advertisers, agencies and media owners on their own advertising. Advice is non-binding, apart from in exceptional circumstances where pre-clearance is imposed as a sanction by the ASA. Copy Advice is free-of-charge and confidential, and queries are usually answered within 24 hours. Contact https://www.asa.org.uk/advice-and-resources/training-and-events.html and +44 (0) 20 7492 2100. An Express 4-hour service is also offered (£300 inc VAT as at April 2025)

CAP also offers, at a fee, full website audits:

https://www.asa.org.uk/advice-and-resources/website-audit-information.html

As well as online eLearning courses on various subjects:

https://www.asa.org.uk/advice-and-resources/cap-elearning.html

Overview here:

https://www.youtube.com/watch?v=4KW_CxOSmf8&feature=youtu.be

Broadcast advertisements are pre-cleared through Clearcast (for television, in script and film form http://www.clearcast.co.uk) and the Radio Centre (in script form only for radio - http://www.radiocentre.org/). These two bodies were set up by broadcasters to fulfil their statutory duty to ensure that the advertisements they broadcast comply with the advertising codes. However, pre-clearance does not prevent the ASA from investigating and upholding complaints against broadcast advertisements

Clearcast pre-clearance 5-10 working days on scripts, 3-5 rough-cuts, 48 working hours final TV/VOD

  ROI some broadcasters self-regulate RTE & TV3 and they work on scripts to final concepts. RTE only meet on Tuesdays and Thursdays and production materials should be supplied the day before

UK/ ROI Cinema final edits must be uploaded to the CAA (this is the sole regulatory body for Cinema clearance, absorbing the responsibilities previously held by the BBFC). Any commercial of public interest such as charities, Government commercials, banking sector etc. will need also to be submitted to the BBFC and display the classification on final airing edit (incurs fees)

For help, contact the Traffic Bureau administration@trafficbureau.net

SECTION E SOURCES/ LINKS

GDPR

Regulation (EU) 2016/679 Of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force May 25 2018. The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018.

https://eur-lex.europa.eu/eli/reg/2016/679/oj 

Withdrawal of the United Kingdom from the Union and EU rules in the field of data protection:

https://ec.europa.eu/newsroom/just/items/611943

The Digital Services Act

Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024. 

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065

The Digital Markets Act

Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online. Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here.  Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.

https://eur-lex.europa.eu/eli/reg/2022/1925

Consumer protection 

As indicated above under European legislation, a number of consumer protection measures introduced by Directive 2019/2161 (the Omnibus Directive) and due in force May 2022 are not transposed into the U.K. following exit from the E.U., though measures will apply to U.K. providers of goods and services in member states. The U.K. government's plans regarding consumer protection in this context are set out here courtesy of Travers Smith LLP / Lexology December 2021. Meanwhile, the legislation below remains in force.

The Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277); entry into force 26/05/2008. These regulations (known as CPRs) introduce a general prohibition on traders in all sectors engaging in unfair commercial (mainly marketing & selling) practices against consumers, implementing Directive 2005/29/EC of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices (the UCP Directive, the core European consumer protection legislation). Part 2 sets out the prohibition on unfair commercial practices, i.e. those that contravene the requirements of professional diligence, misleading actions, misleading omissions, aggressive commercial practices and commercial practices of the type specified in Schedule 1, which includes provisions related to pricing (5-7):

http://www.legislation.gov.uk/uksi/2008/1277/contents/made

Amended by the Consumer Protection from Unfair Trading (Amendment) Regulations 2014 (SI 2014/870); the amendment largely deals with enforcement issues and redress rights; marcoms requirements are not directly affected. Guidance on 2008 CPRs:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/284442/oft1008.pdf

Guidance on the 2014 CPRs:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/409334/bis-14-1030-misleading-and-aggressive-selling-rights-consumer-protection-amendment-regulations-2014-guidance.pdf

Above revoked following the introduction of The Digital Markets, Competition and Consumers Act 2024 (DMCCA). From Overview: 'the Act creates a new regime to increase competition in digital markets by conferring powers and duties on the Competition and Markets Authority ("CMA") to regulate competition in these markets; updates powers to investigate and enforce competition law; updates and enhances powers to investigate and enforce consumer protection law and resolve consumer disputes; and gives consumers protections in respect of unfair commercial practices, subscription traps and prepayments to savings schemes.' Part 4, Chapter 1 (linked below) Misleading actions (226) and Misleading omissions (227) are the key sections for our purposes, together with Schedule 20 setting out 'Commercial practices which are in all circumstances considered unfair' (the former EU 'blacklist'), which has some new (versus the CPRs) provisions under pt. 13 related to consumer reviews and their veracity, in force from April 6, 2025. This September 2024 review of the act from Lewis Silkin is clear and comprehensive.

https://www.legislation.gov.uk/ukpga/2024/13/part/4/enacted