Updates since May 2022 (slimmed)
DCMS report on Influencer culture May 9, 2022
One year on. Charles Russell Speechlys. May 9, 2023
Tesco Plant Chef claims same date complaint upheld
Carbon Neutral and Net-Zero Claims. Feb 21, 2023
Cadwalader Wickersham & Taft LLP/ Lex
The ASA on AI. ASA News 23 Feb 2023
Guidance on AI and data protection. ICO, March 17, 2023
Urgency and price reduction claims online. CMA March 29
ICO on AI and data protection. April 3, 2023
ASA and FCA on 'finfluencing' 24 April, 2023
Swearing in ads CAP News May 4, 2023
ClientEarth v Shell. DAC Beachcroft May 17, 2023
Update re costs Mischon de Reya Sept 12, 2023
Appeal declined. Fasken/ Lex December 4, 2023
Racial/ethnic stereotyping CAP May 23, 2023
Environmental claims guidance ASA June 23, 2023
Avoiding misleading imagery in ads. CAP August 10, 2023
4Air LLC ruling environmental claim (U) August 30, 2023
CAP on Halloween, old people and Christmas 28 Sept, 2023
Regulatory outlook Osborne Clarke Sept 2023
Q3 2023: Key ASA rulings. Taylor Wessing
Data protection in the UK. Sidley/ Lex October 9, 2023
GALA/ Lex October 11, 2023
Repsol ASA ruling October 18, 2023 (U)
CMA's Green Agreements Guidance Oct 12, 2023
Freshfields Bruckhaus Deringer on above Oct 18, 2023
Round-up of recent ASA rulings by Foot Anstey Oct 16, 2023
2024: advertising predictions. Taylor Wessing Dec 4, 2023
The ASA's AI-Assisted Collective Ad Regulation 28 Nov 2023
Online Safety regulation is here. Ofcom Nov 9, 2023
Online Safety Act - An Overview. Burges Salmon LLP Nov 13, 2023
UK Regulatory Outlook October 2023. Osborne Clarke Oct 31, 2023
King’s Speech confirms the Media Bill. CMS November 6, 2023
IPA/ISBA generative AI principles November 1, 2023
Generative AI & Advertising: Decoding AI Regulation. CAP News Aug 31, 2023
New environmental claims guidance from ASA systems. June 23, 2023
Above is govt. press release April 25, 2023; Taylor Wessing commentary here
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 the 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.
A Look At Influencer Reviews. CAP News 14 Sep 2023
Influencer Marketing Special Edition of CAP's Insight Newsletter 23rd March, 2023
Above is 'a series of relevant articles and resources to get you up to speed on influencer marketing regulation.'
Influencers’ guide to making clear that ads are ads. March 2023. Developed with the Competition and Markets Authority (CMA)
CMA issues guidance on influencer marketing, including #ad for gifts (!) RPC/ Lex December 2022. Recommended read
November 2022 guidance from the CMA: Social media users set to benefit from new hidden advertising protections
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 February 2020 and a ‘Special Edition Influencer Marketing Insight' includes a flow chart, cheat sheet and affiliate marketing infographic etc. Engaging Social Media Influencers, a September 2021 piece from Brodies LLP via Lex is helpful on how to manage Influencer marketing and the CMA provide guidance with Hidden ads: Being clear with your audience, update of 3 November 2022. ISBA's Influencer Marketing Code of Conduct was updated June 2023. 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.
The Digital Markets, Competition and Consumers (DMCC) Bill is a very significant piece of legislation in this context. The bill provides the CMA with weighty new powers and essentially absorbs, with few amendments at this point but the option to bring those in, the CPRs 2008, which provide the consumer protection measures which are key in of themselves in areas such as environmental claims and highly influential in self-regulatory interpretation. The bill carries some other important provisions for the digital landscape but less directly relevant to advertising. Some helpful explanation and commentary from Wiggin LLP May 4, 2023 here and GALA/ Lex here. The bill's planned progress through both houses is shown in the first link in this para. New blacklisted commercial practices June 29, 2023 from Taylor Wessing/ Lex.
Para 11, Schedule 1 of the CPRs provides that a commercial practice ‘in all circumstances considered unfair’ is ‘Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial)’. More broadly, Regulation 6 (1) d of Part 2 of the CPRs sets out a misleading omission when ‘a commercial practice fails to identify its commercial intent, unless this is already apparent from the context.’ More broadly still, it is this legislation, transposed from the UCPD 2005/29/EC, that is the core of misleadingness regulation around Europe and including the UK for the time being (the CPRs are retained legislation - see The end of retained EU law? from Macfarlanes LLP Jan 2023). The UK self-regulatory position closely observes the statutory framework and the ASA is the 'established means' of advertising regulation; we therefore don't tend to 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 draft bill brings online financial scam ads into its scope, the Online Safety Bill may also impact marketers' and agencies' corporate lives. There's a good April 2022 summary here from Morrison & Foerster LLP/ Lex and a more recent and relevant (as the bill has been delayed) piece from Lewis Silkin/GALA December 1, 2022. The Government response to Online Advertising Programme consultation of July 25th 2023 sets out plans principally to regulate illegal advertising online and is intended to complement the Online Safety Bill and the DMCC bill outlined above and the Data Protection bill; there's a helpful August 8, 2023 summary from CMS here and from Taylor Wessing September 25, 2023 here and if you can take even more, this from RPC/ Lex October 25, 2023.
International Women’s Day 2023 CAP News March 8, covers roles and characteristics, sexual objectification and body image, with multiple references to relevant cases and other associated guidance; International Men's Day 2023 November 9 was treated equally.
The rule states: [Advertisements] must not include gender stereotypes that are likely to cause harm, or serious or widespread offence. Full guidance from December 2018 is here; advice online from August 2020 is here. The rule came into force on 14 June 2019. From the guidance: ads may feature people undertaking gender-stereotypical roles e.g. a woman cleaning the house or a man doing DIY, or displaying gender-stereotypical characteristics e.g. a man being assertive or a woman being sensitive to others’ needs, but they should take care to avoid suggesting that stereotypical roles or characteristics are:
Always uniquely associated with one gender
The only options available to one gender
Never carried out or displayed by another gender
From CAP’s Insight piece 8/3/2019: ‘The ASA already takes a tough position on sexualisation, objectification and unhealthily-thin body image in ads (see also e.g. Celine ruling September 20, 2023.) Where these cases have previously been considered under rules about offence and social responsibility, they could also fall under the new rule.’ The first rulings 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. There was some controversy around the VW decision in particular; trade press story here. Ruling April 2021: a paid-for Instagram post from Babyboo Fashion was banned for being likely to cause serious or widespread offence by objectifying women; case here. On body image, a May 2021 ruling found against a Max Mara ad here (extract of image) and - back to stereotyping - this is an interesting Sept 2021 ruling that did not uphold a complaint against a Strive Footwear commercial. Following their call for evidence in January 2022, CAP and BCAP have published an interim statement on body image in advertising November 3, 2022.
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. Forms of misleadingness are set out under our content section B, though we have separated price issues as these are also subject to statutory provisions, and in of themselves can be somewhat complex. Key guidance from CAP News Jan 2020, re-issued Dec 2020, is here, and Advice online Dec 2020 here. On 28 January 2021, re-issued Jan 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. 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. This piece from Taylor Wessing/ Lexology December 13, 2021 Advertising and influencers - 2021 highlights goes well beyond the inference of its title, rounding up much of what happened/ is happening in self-regulatory territory in 2021: green claims, harm and protected characteristics, VSPs, HFSS etc. Also see Q&A: misleading advertising practices in United Kingdom from Herbert Smith Freehills LLP/ Lex March 2022 and Substantiation 101 from CAP 23rd February, 2023.
The key sections in the CAP Code are Compliance Section 1 and Harm and Offense Section 4. The same sections apply in the BCAP Code. The CAP Code clause 1.3 Clause Marketing communications must be prepared with a sense of responsibility to consumers and to society casts a pretty wide net and can be deployed for example when ruling on portrayals of 'sexuality'; this December 2021 Diesel clothing adjudication is an example - we think the commercial is this one, but it may have been edited subsequent to the ASA council decision. In the same context, in this February 2022 Boohoo case a complaint about images on their website was upheld; see also this Drum story on the Adidas sports bra case May 2022. Legislation is from the Ofcom Broadcasting Code Appendix 2, transposing the AVMS Directive 2010/13/EU, applicable to broadcast and on-demand. Audiovisual commercial communications shall not: (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 (non-exhaustive). In October 2021, CAP issued Championing diversity during Black History Month, which includes a number of instructive rulings and 'a few best practices that can go a long way towards helping to deliver a campaign that champions racial diversity in a positive way.' Extending this topic, Tackling racial and ethnic stereotyping in UK ads from February 2022 reports on research findings and other reviews and sets out plans for positive development; Guidance on avoiding racial and ethnic stereotyping in ads was issued by CAP 25 May 2023. Referring to persons with disabilities in ads from CAP News 09 Dec 2021 covers inter alia negative stereotypes and trivialisation; CAP and BCAP closed August 24 2021 a consultation on harm and protected characteristics.
CAP Code Section 3 (Misleading advertising) carries several provisions under pricing, and the BCAP Code has the same territory, also under Section 3. Price statements in marcoms should also take account of the Guidance for Traders on Pricing Practices from the Chartered Trading Standards Institute, under the auspices of DBEIS; the CAP advertising guidance Prices – General is helpful, and from June 2023 Make sure the price is right: using reference pricing in ads covers ground such as ‘strikethrough’ prices and ‘was-now’. Following the self-regulatory provisions should be sufficient, but it is as well to be aware of the statutory requirements. From the legislation header above, the CPRs' Regulation 6 (misleading omissions) carries requirements related to an 'invitation to purchase' and Schedule 1, the equivalent of the UCPD annex/ blacklist, sets out a number of price-related provisions e.g. 'bait' and 'bait and switch'. Another important influence in this context is the EU's Product Price Directive, with a UK transposition of the Price Marking Order 2004 (retained law). CAP News July 2023 To include or not to include? - VAT in stated prices has a best practice guide and in September 2020 At the right price: making price comparisons with previous prices. January 11, 2023: the retailing of Prince Harry's book 'Spare' is reportedly under investigation by the ASA. See relevant pricing guidance re RRP here.
Green disposal claims in advertising. ASA News 28 Nov 2023
CMA's Green Agreements Guidance Oct 12, 2023
Freshfields Bruckhaus Deringer on above Oct 18, 2023
Greenwashing: Meet risk with action. Slaughter and May Aug 3, 2023
Shell, Repsol and Petronas Cadwalader June 21, 2023
Proposal for a Directive on Green Claims. March 22, 2023
European Commission press release on the above here, in case of interest/ export
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, and provide guidance in ‘Environmental Claims: General 'Green' claims' December 2022 and in June 2020 ‘Ensuring your environmental claims are more than just hot air’ which provides a number of rulings in relation to substantiation and the holding of quality evidence as does Ensure your recycling claims aren’t a load of rubbish of 30th September 2021. 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. On 29 July 2022, the government announced that the CMA are investigating the fashion industry, specifically Asos, Boohoo and George/ Asda. 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’. How to comply with the rules from Taylor Wessing/ Lexology Feb 2022 re-caps the rules and provides some high-profile adjudications; this Drum piece Feb 20, 2023 points out some of the dangers of carbon-offsetting claims. Green claims update from Hogan Lovells/ Lex June 20, 2023 compares the EU and UK approaches to environmental claims regulation, as does Squeaky clean: updates on greenwashing from Osborne Clarke June 22, 2023, also carrying news of the CMA’s report on the green heating and insulation sector and finally on the CMA, key takeaways from their recent green claims conference, from RPC July 18, 2023.
This Feb 19 2023 piece from GALA is significant, setting out how the standards of proof differ between the CMA and the ASA and the enduring tension and frustration if 'purist' regulation makes it impossible to publish green claims.
CAP and BCAP’s stricter rules prohibiting the sexual portrayal or sexual representation of under-18s (and those who appear to be under 18) in advertising came into force January 2018. The new rules provide that advertising must not portray or represent anyone who is, or seems to be, under 18 in a sexual way. They are in full here. CAP subsequently issued How to ensure your ad doesn’t break our new rules on sexualisation, setting out the key points to ensure compliance with the rules. For further advice, see CAP’s Advice Sexual Orientation and Gender Identity and Use of Stereotypes. Indecent advertising in fashion: Boohoo, Balenciaga and Pretty Little Thing from Freeths/ Lex December 2022 here walks us through some of the uncomfortable cases in this territory. Sexual imagery in advertising from DLA Piper Feb 2023 is a helpful analysis and includes reference to the January 2023 Demi Lovato ruling (image here).
Privacy issues should be reviewed with specialist advisors
Data protection in the UK. Sidley/ Lex October 9, 2023
The New Data & Privacy Playbook. Drum May 17, 2023. Handy wrap-up
Data Protection and Digital Information (No. 2) Bill. Link is to bill summary 8 March from Department for Science, Innovation & Technology
Smart Data & The DPDI (No. 2) Bill. Kemp IT Law/ Lex June 2, 2023 and
The DPDI (No. 2) Bill - a whole new UK GDPR? Kemp IT Law July 5, 2023
ICO guidance on AI and data protection March 15, 2023
ICO video guides for small organisations July 5, 2023
The collection and use of personal data for marketing purposes is regulated by the new Data Protection Act 2018, which accompanies the General Data Protection Regulation GDPR. The UK Data Protection Authority the ICO provide important and valuable advice in all areas of privacy. Their GDPR guide is here and the link here provides access to the ICO interactive tool that will help small and medium-sized businesses with personal data within the EEA. On July 5, 2023 the ICO issued video guides for small organisations, covering data protection, direct marketing and soft opt-in. DCMS Announcement: Replacing the UK GDPR is from October 10, 2022; the article from DWF LLP/ Lex points out the confusion the proposal might create with the proposed Data Protection and Digital Information Bill. Meanwhile, some implications from the EU's Digital Services Act are set out here by Lewis Silkin/ Lex October 21, 2022 and New Digital Regulators on the 2023 Horizon from RPC/ Lex shows some distinctions between the EU and UK regulatory approaches. In a nutshell: data protection, privacy and cybersecurity in United Kingdom from Sidley Austin LLP/ Lex October 28, 2022 includes 'the year in review.'
Stay up to data: four key tips on using personal data for marketing. CAP News. 26 Jan 2023
In November 2018, CAP updated and overhauled their Section 10 in the GDPR context and renamed it 'Use of data for marketing', reflecting their focus on marketing-associated issues versus ‘pure’ database activities. See Five top tips on our new rules on the use of data for marketing from November 2018 and from January 2022 CAP News Four key tips on using personal data for marketing. Also relevant is the IAB Transparency and Consent Framework, albeit the TCF has run into consent issues. On the issue of privacy rules in the context of featuring celebrities or members of the public, CAP issued in July 2020 A guide to the privacy rules.
Channel, i.e. placement, rules are shown by medium in our section C below. The BCAP (broadcasting) Code Section 32 includes scheduling rules for sensitive sectors such as alcohol and gambling. This August 2021 piece from Simmons & Simmons LLP In brief: media law and regulation in United Kingdom is a valuable covering of the regulatory ground in U.K. media. A recent development is the Directive 2018/1808 amends to the AVMS Directive extending scope online and delivering in particular new rules to video sharing platforms (VSPs), which include the identification of commercial communications where those exist. The UK legislation is here, Ofcom provider guidance as at December 2021 is here and a helpful piece from Taylor Wessing/ Lexology in February 2022 is Obligations on video-sharing platforms to regulate advertising.
SELF-REGULATION: THE CAP AND BCAP CODES
1.1. Recognition of advertising/ marketing communications
Comparisons with Identifiable competitors
Imitation and denigration
1.3. Harm and offence
2.1. CPRs and BPRs/ Unfair Commercial Practices Directive
2.2. Ofcom Broadcasting Code/ AVMS Directive
1.1. Recognition of marketing communications
The CAP code provides that ‘… marketing communications must be identifiable as such’ (rule 2.1). This means that ‘they need to be designed and presented in a way that makes it clear that it is advertising material’ (From September 2016 Advice online, ‘Recognising marketing communications: Overview’)
Additionally, it provides that ‘Unsolicited e-mail marketing communications must be obviously identifiable as marketing communications without the need to open them’ (rule 2.2). ‘The medium or targeting will also be relevant when deciding what is necessary to ensure that consumers know they are viewing a marcom. Consumers should be able to tell from the envelope itself that a direct mailing is a marketing communication (Also from Recognising marketing communications: Overview)
Also, ‘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 of Code) or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context’ (rule 2.3)
Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them ‘advertisement feature’’ (rule 2.4)
On the other hand, using terms like ‘sponsorship’, ‘sponsored content’ and ‘in association with’ to describe an advertisement feature is unlikely to be acceptable, and the advertisement will not be considered clear. This was ruled by the ASA in Michelin Tyre plc and Telegraph Media Group Ltd 2015
For more detailed discussion on what is and isn’t acceptable, see CAP’s Guidance Recognising ads: advertisement features
And CAP News in March 2021: Influencing Responsibly - Make clear upfront when ads are ads
BCAP Code, Section 2: Recognition of advertising
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 (rule 2.1)
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:
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)
Marketing communications/ advertisements must not materially mislead, or be likely to materially mislead (CAP Code, rule 3.1; BCAP Code, rule 3.1)
When determining whether a business-to-consumer advertising is misleading, the ASA will apply the tests included in the CPRs. See the Statutory Regulation/ the Consumer Protection from Unfair Trading Regulations 2008/ Regulation 5 Misleading Actions section of this document for further information.
Obvious exaggerations (‘puffery’) and claims that the average consumer who sees the marketing communication is unlikely to take literally are allowed provided they do not materially mislead (CAP Code, rule 3.2; BCAP Code, rule 3.4)
Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation (CAP Code, rule 3.7; BCAP Code, rule 3.9)
Subjective claims must not mislead the consumer/ audience. Marketing communications/ advertisements must not imply that expressions of opinion are objective claims (CAP Code, rule 3.6; BCAP Code, rule 3.5)
Claims for the content of non-fiction publications should not exaggerate the value, accuracy, scientific validity or practical usefulness of the product. Note: For the purposes of the CAP Code, product means goods, services, ideas, causes, opportunities, prizes or gifts. Marketers must ensure that claims that have not been independently substantiated but are based merely on the content of a publication do not mislead consumers (CAP Code, rule 3.8). CAP has published a Help Note on the Marketing of Publications.
A claim that a company had ‘the most comfortable beds in the world’ was considered by the ASA not to be misleading because it was subjective, as the favoured type of mattress would differ between consumers:
ASA Ruling on Hypnosis, 2014
Conversely, claims that drain cleaning products were No.1 for Bathroom Plughole Blockages’ and No. 1 for Kitchen Blockages’ were not puffery and therefore misleading. The ASA considered that the claims implied that the products were the best-selling ones in their category, however the Company that produced them could not demonstrate that they outsold their competitors’ products:
ASA Ruling on Challs International Limited, 2016
The ASA ruled that claims such as ‘improves fuel combustion which means better MPG and lower CO2 emissions for both petrol and diesel engines’, ‘Cuts emissions by 30-50% and improves MPG’, and ‘makes a positive environmental contribution to a cleaner atmosphere’ were in breach of the CAP Code because the advertiser did not hold adequate supporting evidences. In this case, the advertiser provided documentation including press releases, details of tests, customer testimonials and magazine articles, however this was not considered sufficient for the purposes of the Code:
D Lock & Associates t/a Broquet, 2016
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner. Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means (CAP Code, rule 3.3; BCAP Code, rule 3.2)
Marketing communications 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 Database Practice or Employment sections of the Code must comply with the more detailed rules in those sections. Marketers should note the law requires marketers to identify themselves in some marketing communications. Marketers should take legal advice (CAP Code, rule 3.5; BCAP Code, rule 3.6)
For marketing communications that quote prices for advertised products, material information [for the purposes of rule 3.3] includes:
The main characteristics of the product
The identity (for example, a trading name) and geographical address of the marketer and any other trader on whose behalf the marketer is acting
The price of the advertised product, including taxes, or, if the nature of the product is such that the price cannot be calculated in advance, the manner in which the price is calculated
The arrangements for payment, delivery, performance or compliant handling, if those differ from the arrangements that consumers are likely to reasonably expect
That consumers have the right to withdraw or cancel, if they have that right (see rule 3.55 marketers must promptly refund consumers who make valid claims under an advertised money-back guarantee)
In December 2015, the ASA held that an online travel agent’s website omitted material information because it displayed the price of a flight that included a pre-applied discount, which was only available to consumers paying via a pre-paid Visa card. Therefore, it was misleading and in breach of Rule 3.3 of the CAP Code and 3.2 of the BCAP Code
ASA Ruling on Opodo Ltd, 2015
In December 2017 All Care, a care service website, omitted material information because it suggested that DBS (Disclosure & Barring checks) would be paid for all, when they only paid for employees who stayed longer than a year. Another claim ‘Rates of pay £8.30 per hour Monday through Friday’ was taken to mean that that rate would apply for all hours worked including travel time between clients during working hours. Carers were only paid for the hours delivering care and were not paid for travel time between clients; the ad did not make that clear:
ASA ruling on All Care Dec2017
In May 2016 the ASA ruled that a sales promotion featured on a betting slip featured text that offered a self-service £2 free bet. Advertiser Ladbrokes stated that the promotion disclosed the signification condition ‘Promotion runs whilst stocks last’ on their website and on posters, but the betting slips themselves had not included that; the ASA considered this was material information that should have been made sufficiently clear in a qualifying statement at the very least
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 (BCAP Code, rule 3.7; also CAP Code rule 2.3 under Advertisement recognition)
No advertisement may use images of very brief duration, or any other technique that is likely to influence consumers, without their being fully aware of what has been done” (BCAP Code, rule 3.8)
Advertising must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify (CAP Code, rule 3.9; BCAP Code 3.10)
Any qualifications of a claim must be clearly presented (CAP Code, rule 3.10; BCAP Code 3.11).
CAP publishes Guidance for Qualification claims
Additionally, BCAP has published a Guidance on Superimposed Text to help broadcasters ensure compliance with rule 3.11
Marketing communications/ advertisements must not mislead consumers by exaggerating the capability or performance of a product or service (CAP Code, rule 3.11; BCAP Code, rule 3.12)
Marketing communications/ advertisements must not present rights that consumers are afforded by the law as a distinctive feature of the advertiser’s/marketer’s offer (CAP Code rule 3.12; BCAP Code rule 3.13)
Marketing communications/ advertisements must not suggest that their claims are universally accepted if a significant division of informed or scientific opinion exists (CAP Code, rule 3.13; BCAP Code, rule 3.14)
Advertisements must not mislead about the nature or extent of the risk to consumers’ personal security, or that of their families, if they do not buy the advertised product or service (BCAP Code, Rule 3.15)
1.In January 2014 the website for a company marketing a ‘Water Fuel Cell’ product, designed to convert water into HHO gas. The home page (www.waterfuelcell.co.uk) included the headline claim "Save Fuel, Save Money & Save the Environment". The ASA considered that the claims had not been substantiated and that the video exaggerated the capabilities of the product:
2. In July 2017, the ASA ruled against an email for Etihad Airways offering an upgraded seat after a flight was purchased with Etihad. It included text which stated ‘Upgrade to experience our business studio’. An image included in the ad showed a cabin that featured a horizontal and dressed bed with a bedside table and other storage space. The ASA considered the ad exaggerated the benefit of purchasing a Business Class cabin product and CAP Code rules 3.1 and 3.3 (Misleading Advertising), and 3.11 (Exaggeration)
3. A July 2015 ruling on a press ad headed ‘For the perfect age look rejuvenated irresistibly radiant’, which featured an image of Helen Mirren's face under the heading ‘Age perfect’: the complainant challenged whether the ads misleadingly exaggerated the likely effect that could be achieved by consumers. The ASA did not uphold the complaint, considering that recent press images of Ms. Mirren would have reflected similar professional styling and make-up as the ad images, without any post-production amendments, and that her appearance in the ads was comparable to those more candid images:
1.2.5. Prohibited claims
Prohibited claims are prohibited regardless of any substantiation provided in support of them (CAP Code and BCAP Code, Prohibited Claims).
A marketing communication must not claim that products can facilitate winning a game of chance (CAP Code, rule 3.14; BCAP Code, rule 3.16)
Note: stating prices correctly in advertising can be difficult from a regulatory perspective. If uncertain, check with your/ your client’s lawyers. The following, as with all of the contents of this website, does not constitute advice, just what the rules say. See also the later Legislation section (point 2) or some significant case law
Price statements in marcoms/ advertisements should take account of the Guidance for Traders on Pricing Practices from the Chartered Trading Standards Institute (CAP Code, Prices Background). Price statements include statements about the manner in which the price will be calculated as well as definite prices
Ensure prices match the product shown
Do not use ‘from’ and ‘up to’ to exaggerate the availability of a product at a given price
Additional CAP advertising guidance
See also provisions from the Consumer Protection from Unfair Trading Regulations 2008 under Point 2 in this section
Marketing communications must not advertise a product as ‘free’, ‘gratis’, ‘without charge’ or similar if the consumer has to pay anything other than an unavoidable cost of responding and collecting or paying for delivery of the product (CAP Code and BCAP Code, ‘Free’ Claims Principle)
Keep your “free” claims problem-free. CAP News 22 October 2020 and issued again September 30, 2021. Covers pure ‘free’ claims, ‘Conditional purchase’ promotions (Marketers are allowed to use the term 'free' in situations where receiving a free product or service is contingent on consumers purchasing another item - provided the quality of the paid-for item has not been reduced, and the paid-for item’s price has not been increased to cover the cost of supplying the free item) and Package Offers, with links to other guidances on the topic and some relevant rulings
Rulings search ‘free’
A February 2014 ruling upheld a complaint about a Bet 365 TV commercial and claims on the website www.bet365.com, which promoted a ‘Free Bet Offer’. The terms stated ‘Free bet winnings exclude stake’. However, customers would have to place their own stake again in order to make the next bet, and would not be offered an additional free stake or matched stake by the advertisers. On that basis, the ASA did not consider that the promotion offered winning customers any 'free' element when making their subsequent bet:
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
Vexed by verifiability? How to make sure your ads comply. CAP News. February 2020
CAP also publishes useful Help Notes on Retailers’ Price Comparisons and Lowest Price Claims and Price Promises. The ASA will take CTSI guidance into account when assessing price claims in advertising
Rulings search ‘Comparisons’
A significant July 2022 ruling against the verifiability of the AA's 'No.1'advertising after an RAC complaint.
Marketing communications/ advertisements must not mislead consumers about who manufactures the product (CAP Code, rule 3.41; BCAP Code, rule 3.41)
Marketing communications/ advertisements must not discredit or denigrate another product, advertiser or advertisement, or a trade mark, trade name or other distinguishing mark (CAP Code, Rule 3.42; BCAP Code, rule 3.42)
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 Code, rule 3.43; BCAP Code, rule 3.43)
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 Code, rule 3.44; BCAP Code, rule 3.44)
Rulings search ‘Denigration’
Advertising that includes endorsements or testimonials may also be subject to Section 6: Privacy
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 Code, rule 3.45)
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 Code, rule 3.45)
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 Code, rule 3.47)
Testimonials must relate to the advertised product or service (CAP Code, rule 3.46; BCAP Code, rule 3.45)
Marketing communications/ advertisements must not feature a testimonial without permission (CAP Code, rule 3.48; BCAP Code, rule 3.46) 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 Code only for this caveat, rule 3.48)
Advertisements must not display a trust mark, quality mark or equivalent without the necessary authorisation. Advertisements must not claim that the advertiser (or any other entity referred to), the advertisement/ marketing communication or the advertised product or service has been approved, endorsed or authorised by any person or body if it has not, or without complying with the terms of the approval, endorsement or authorisation (CAP Code, rule 3.50; BCAP Code, rule 3.47)
Marketers must not refer in a marketing communication to advice received from CAP or imply endorsement by the ASA or CAP (CAP Code, Rule 3.49)
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 other body (CAP Code, rule 3.51; BCAP Code, rule 3.48)
Marketing communications must not use the Royal Arms or Emblems without prior permission from the Lord Chamberlain’s office. References to a Royal Warrant should be checked with the Royal Warrant Holders’ Association (CAP Code, rule 3.52)
Rulings search ‘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)
Advertising guidance on social responsibility
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
Rulings search ‘Offense’
1.September 2015: a national press ad for Paddy Power featured odds on the candidates for the 2015 FIFA presidential election. An image showed Sepp Blatter revealing the winner by holding up a piece of paper which said ‘ME’. Text at the top of the ad stated, "JUST F**K OFF ALREADY!". Because the ASA did not consider the ad would be offensive to those who were likely to see it, it was concluded that it was unlikely to cause serious or widespread offence.
2.July 2014. Trocaderos South Shields. A posting on the TrocStars' Facebook page featured a poster with an image of two women both drinking from large glasses and text which stated "Got yourself drunk at Trocs? Woke up in someone else's bed? Walk of shame? F*ck that, it's the stride of pride!" Because the ad used offensive language, encouraged excessive drinking and linked alcohol with sexual activity, the ASA concluded that it was irresponsible and in breach of the advertising Code (rule 4.1, Harm and offence)
3. February 2014: a TV ad for Kabuto noodles featured on-screen text that stated "The improvised ad break" and "Scenario #3 Kabuto Samurai (dubbed)". The ad featured four actors on a stage in front of an audience. Two of the actors were speaking in an accent, which the remaining two actors were ‘translating’. The complainant stated the ad was offensive because it mocked other cultures and races. The ASA considered that the humour was derived from the fictitious translation, rather than from mocking the culture and race of others. Whilst it was acknowledged that some viewers may find the ad distasteful, the ASA did not consider it was likely to cause serious or widespread offence, or encourage harmful and discriminatory behaviour or treatment. On that basis, it was concluded that the ad did not breach the Code:
CMA Green claims guidance September 2021
ASA statement on environmental claims September 2021
Misleading environmental claims and social responsibility December, 2021
The CAP and BCAP codes
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:
The following rule is subject to the same conditions as above, i.e. the rule must be read in conjunction with etc.
For those responsible for application of environmental claims beyond the U.K., the Commission's 2021 Guidance on the interpretation and application of Directive 2005/29/EC includes 'environmental claims' under Section 4.1.1.
2.1. The CPRs and 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.
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
While the statutory measures are well covered/ reflected in Self-Regulation set out under pt. 1.2.6, it’s as well to know the provisions in law. Equally, price statements in marcoms can be very sensitive and should be reviewed by legal advisors
Product Price Directive 98/6/EC:
UK implementation: Price Marking Order 2004
Unfair Commercial Practices Directive 2005/29/EC
UK Implementation: The Consumer Protection from Unfair Trading Regulations 2008 (CPRs)
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:
The CPRs and price in advertising
Other pricing-related rules from the CPRs are referenced above under Pt. 2.1.
The ASA is designated by Ofcom as the co-regulator for advertising on VOD services. Appendix 2 has been included in the CAP Code; this will apply to regulated on-demand services and reflect the legal requirements in the Communications Act. Remit note is here. The Appendix doesn’t go beyond the existing CAP rules
From Ofcom Section nine: Commercial references on TV
Press, magazines, promotional literature, e.g. leaflets, brochures, etc.
The Government response to Online Advertising Programme consultation of July 25th 2023
August 8, 2023 summary of above from CMS here
Above is govt. press release April 25, 2023
Data Protection and Digital Information (No. 2) Bill. Link is to Bill summary 8 March from Department for Science, Innovation & Technology
Further commentary here from Squire Patton Boggs April 18, 2023 sets out some of the issues with EU 'conflict'
This section sets out the broad rules for the online environment generally. Below this, more specific channels are covered such as email, marketers’ own websites, and a section on Privacy rules and their impact on e.g. OBA. As the boundaries online can be less clear, and as space online is often advertiser-owned, there’s greater focus on the identification of advertising, as advertising is in remit (i.e. subject to the rules) in owned and (some) earned space as well as paid. The definition of advertising is therefore important. CAP’s online scope ‘Extending the Digital remit of the CAP Code’, is fully explained in the linked document
The ICO is the national data protection authority - ‘the UK's independent body set up to uphold information rights.’ Their guidance on various forms of commercial activities on and offline is important and valuable. In this general online context, their Personal information online code of practice is most relevant; see channels below for more specific guidance
Is your cookie banner compliant? November 24, 2023 DLA Piper
Reed Smith LLP/ Lex November 8, 2023
Video. Kemp IT Law October 23, 2023
Q&A: personal data handling and processing in United Kingdom
Hunton Andrews Kurth LLP July 14, 2023
Cookie Banners Missing "Reject All" Buttons Face Investigation by the ICO
Mayer Brown/ Lex July 17, 2023 and Stevens Bolton September 4, 2023
Files prior to June 2023 here
Privacy issues should be reviewed with specialist advisors
The ICO’s Guide to the General Data Protection Regulation is here. Updates can be found here. Check privacy matters, and especially how GDPR applies to cookies, with your/ your client’s lawyers. Relevant EDPB guidance from March 2019 is Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. The government on 10 September 2021 went out to consultation with Data: a new direction; closes 19th November. And Is the UK getting tough on cookies? The ICO responds to the Government’s plans from Slaughter & May October 2021 addresses some potentially significant developments for cookie regulations.
The Data Protection Act 2018 replaces the 1998 Act. The Overview of the Act explains the relationship with the GDPR:
(1) This Act makes provision about the processing of personal data. (2) Most processing of personal data is subject to the GDPR. (3) Part 2 supplements the GDPR (see Chapter 2) and applies a broadly equivalent regime to certain types of processing to which the GDPR does not apply (see Chapter 3). (4) Part 3 makes provision about the processing of personal data by competent authorities for law enforcement purposes and implements the Law Enforcement Directive. (5) Part 4 makes provision about the processing of personal data by the intelligence services. (6) Part 5 makes provision about the Information Commissioner. (7) Part 6 makes provision about the enforcement of the data protection legislation.
Stay up to data: four key tips on using personal data for marketing. CAP News. 26 Jan 2023
The DMA Code of Practice is here: https://dma.org.uk/the-dma-code
Privacy rules for targeted advertising in the UK and EU. Reed Smith/ Lex August 2023
Effective 19 January 2022
Section 10 of the CAP Code provides specific OBA rules; extracts for this context are:
At the time of collecting consumers’ personal data from them, marketers must provide consumers with the following information (in, for example, a privacy notice), unless the consumer already has it:
A good number of companies & organisations in Europe are supporters of and engaged in the European self-regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance (EDAA http://www.edaa.eu). The OBA icon,
which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. From the icon, the consumer is provided with a link to http://www.youronlinechoices.eu/, which has information on how data is used, a means to ‘turn off’ data collection and use, and a portal to connect with national self-regulatory organisations for complaint handling
On July 5, 2023, the ICO issued video guides for small organisations; includes soft opt-in
The rules outlined below will apply to any electronically stored messages, including email, text, picture, video, voicemail, answerphone (ICO Guide to PECR). ‘Electronic mail’ means any text, voice, sound or image message sent over a public electronic communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient and includes messages sent using a short message service (Art 2 (1) PECR)
(a) That person has obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient
(b) The direct marketing is in respect of that person’s similar products and services only; and
(c) The recipient has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of his contact details for the purposes of such direct marketing, at the time that the details were initially collected, and, where he did not initially refuse the use of the details, at the time of each subsequent communication
From The Electronic Commerce (EC Directive) Regulations 2002, transposed from Directive 2000/31/EC, the electronic commerce directive
(a) Be clearly identifiable as a commercial communication
(b) Clearly identify the person on whose behalf the commercial communication is made
(c) Clearly identify as such any promotional offer (including any discount, premium or gift) and ensure that any conditions which must be met to qualify for it are easily accessible, and presented clearly and unambiguously; and
(d) Clearly identify as such any promotional competition or game and ensure that any conditions for participation are easily accessible and presented clearly and unambiguously.
(Art. 7 ECR)
SMS and MMS are defined as electronic mail (Art 2 (1) PECR and CAP Code S.10). The principles above will apply to direct marketing sent by SMS and MMS
5.3 The Regulations do not prescribe how the requirement to make information “easily, directly and permanently accessible” should be met. The Government recognises that technological constraints (e.g. the 160-character limit on mobile text messages) mean that the information may not readily be accessible by the same means by which the service provider transacts with recipients of his services. The Government envisages, however, that these criteria should be capable of being met if the information is accessible by other means (e.g. inclusion on a website)
The same principle that applies in paid space also applies in non-paid space such as marketers’ own websites and SNS spaces: if communications from the owner meet the definition of ‘advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that are directly connected with the supply or transfer of goods, services, opportunities and gifts, or which consist of direct solicitations of donations as part of their own fund-raising activities’, then they are subject to the rules. The full CAP remit extension online is here, and see also September 2016 Guidance on Remit: Own websites. The remit extends to marketers’ Social Network Sites, which are seen in this context in the same light as marketers’ own websites. The key issue is the identification of a marketing communication.
WHG (International) Ltd t/a WillHillBet, 17 June 2015
Hillside (UK Sports) LP t/a Bet365, 28 October 2015
From an ASA Opinion piece Jan 2016, native advertising is ‘content paid for and controlled by brands, but which looks like news, features, reviews, entertainment and other content that surrounds it online.’ So this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience
This is a sensitive and topical issue, with a number of high profile recent adjudications, shown below. The core issue is that of recognition of advertising, set out under the linked CAP Code Section 2; the BCAP equivalent is here. CAP/ the ASA are particular on the way in which advertising is identified as such: ‘Some examples of labels that are likely to be acceptable are: ‘Advertisement Promotion’, ‘Advertisement Feature’ or, in some online media, ‘#ad’.’ The law in the form of The Consumer Protection from Unfair Trading Regulations 2008 (CPRs), also prohibits under Schedule I, article 11, that a trader has paid for a promotion without making that clear
From the above (click on the links below for explanations of each issue):
From the above (point 3.) Identification of marketing communications
2.4 ‘Marketers and publishers must make clear that advertorials are marketing communications, for example by heading them "advertisement feature".
Advertisement features often mirror the format, style and typography of editorial articles contained in the same publication. It is particularly important, therefore, that readers can see at once that what they are looking at is not editorial but an advertisement feature. It could be clear through the context that the material is advertising but, if it isn’t, a label which makes clear the content is a marketing communication is likely to be required. Some examples of labels that are likely to be acceptable are: ‘Advertisement Promotion’, ‘Advertisement Feature’ or, in some online media, ‘#ad’
3.1 Marketing communications must not materially mislead or be likely to do so
3.6 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims
3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation
The Consumer Protection from Unfair Trading Regulations 2008 (CPRs), derived from the Unfair Commercial Practices Directive 2005/29/EC, provides in Schedule 1 that a commercial practice ‘in all circumstances considered unfair’ is:
Following feedback, we no longer cover Telemarketing
If any processing of data includes personal data (that which can identify an individual) than it may be subject to the GDPR, recognised and supplemented in the UK by the Data Protection Act 2018. Valuable guidance is provided by the ICO’s Guide to the GDPR. The ICO’s Direct Marketing Guidance, updated for GDPR, covers Marketing Mail under paras 154 -157. Content of Direct Mail marketing communications is subject to CAP Code rules; content-related legislation applies to all media, except that which identifies broadcast channels
Privacy issues should be reviewed with specialist advisors
And the right to object
Don’t pay the price for your “Free Trials” advertising. CAP News 14 September, 2023
Domino's Pizza 'free pizza'promotion ruling (U) 19 July, 2023
Make sure the price is right: using reference pricing in ads. CAP News 22 June, 2023
It’s the final countdown… but is it really? CAP News 20 Apr 2023 re 'countdown clocks'
Promotional savings claims. Advice online 06 Apr 2023
Burges Salmon LLP. April 14, 2023. Covers a number of price promotion techniques
How to ensure your “free trial” advertising sticks to the rules. CAP News 06 Apr, 2023
Using urgency and price reduction claims online. CMA open letter to online businesses. 29 March, 2023
This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation, for example, are checked for any provisions that affect SP and included below. In the case of the U.K., promotional marketing rules are anyway included in the self-regulatory codes. The CAP Code, specifically Section 8, applies to promotional marketing wherever these promotions appear; see this Advice Online entry: https://www.asa.org.uk/advice-online/promotional-marketing-general.html
From section 8: promoters should take legal advice before embarking on promotions with prizes, including competitions, prize draws, instant-win offers and premium promotions, to ensure that the mechanisms involved do not make them unlawful lotteries (see the Gambling Act 2005 for Great Britain and the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985 (as amended) for Northern Ireland). Section 14 of the Gambling Act explains skill and chance parameters. Broadly, promotional schemes (from manufacturers) requiring a purchase to take part, and offering prizes only on the basis of random chance are considered a lottery and are generally illegal
Promotional marketing: General. April 2019; this guidance gives a brief summary of the key points and where to get more information. Extracts are below (click on the links for more information)
Pricing and charges
'Helpful information on the advertising rules for the pricing of products and services and additional charges, not including legally required costs such as taxes or VAT'
Back in Black Friday – Getting your promotional offers in line. CAP News 20 Oct 2022
Promotional marketing: Prize winners Advice online 26 Oct 2021
Running prize promotions on social media Resource page/ checklist issued Oct 2021
Six ways to win at Promotional Marketing CAP News 11 July 2019
Guidance on ‘free trial’ or other promotional offer subscription models Advertising guidance Nov 2017
Promotional Marketing for the Win CAP News 15 Aug 2018
Promotional marketing: Competitions Advice online 7 February, 2023
Promotional marketing: prize draws Advice online 24 Sep 2021
Keep your “free” claims problem-free. CAP News 30 Sep 2021
Keeping your “Free Trials” trial free CAP News 19 May 2022
Running chance-based prize promotions in Northern Ireland? CAP News 23 June, 2022. Last month, changes to Northern Ireland (NI) gambling law by the Betting, Gaming, Lotteries and Amusements (Amendment) Act (Northern Ireland) 2022 came into force. These important changes affect promoters running NI or UK-wide chance-based promotions.
There are some statutory requirements, largely reflected in self-regulation but not necessarily in this promotional marketing context, that apply. These are to do with pricing and with invitation to purchase, both from the Consumer Protection from Unfair Trading Regulations 2008
(a) refusing to show the advertised item to consumers,
(b) refusing to take orders for it or deliver it within a reasonable time, or
(c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch)
(a) there is no prize or other equivalent benefit, or
(b) taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost
Rules have been shown in a number of places in this database, and are summarised here:
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)
CAP also offers, at a fee, full Website Audits:
As well as online eLearning courses on various subjects:
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)
Clearcast is improving the Ad Clearance Process
In 2022 there will be a change to the ad clearance process which will affect where agencies and advertisers upload their final clocked ad and its associated metadata. This change will be managed by a new system, The Clearcast Library.
The Clearcast Library is a centralised collection of final clocked, broadcast-quality TV and VOD ads that feeds into The Clearcast CopyCentral system for final clearance. It’s a fully cloud-based platform that can be accessed across all devices and has been designed to make the process of getting ads to air simpler and faster. The Library also ensures that the ad cleared can be verified as the ad to be aired and keeps a record of all cleared ads for future reference. Read more here.
For help, contact the Traffic Bureau email@example.com
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.
Withdrawal of the United Kingdom from the Union and EU rules in the field of data protection:
European Data Protection Authority
Article 29 Working Party/ EDPB
The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:
All documents from the former Article 29 Working Party remain available on this newsroom.
Article 29 Working Party archives from 1997 to November 2016:
Four more recent and significant documents:
Commercial practices: UCPD
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ UCPD). This is the legislation that most impacts marketing and advertising in Europe and whose origins form the foundations of Self-Regulatory regimes. The core provisions relate to unfair commercial practices, defined as ‘likely to materially distort the economic behaviour with regard to the product of the average consumer.’ In turn, unfair commercial practices are those that:
Annex I (known as ‘the blacklist’) contains the list of those commercial practices which ‘shall in all circumstances be regarded as unfair’. These are the only commercial practices which can be deemed to be unfair without a case-by-case test (i.e. assessing the likely impact of the practice on the average consumer's economic behaviour). The list includes e.g. encouragement to children to ‘pester’ (28), clear identification of commercial source in advertorial (11) and making ‘persistent and unwanted solicitations’ (26). The UCPD includes several provisions on promotional practices e.g. Article 6 (d) on the existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022. The Directive 2019/2161 is not transposed in the U.K. but applies to goods and services within the EU so will affect retailers providing those to EU consumers.
Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. While this directive does not require very significant changes as far as most commercial communication is concerned, it does set out some important new changes to information requirements under the UCPD, to pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behavior and to price reduction information under Directive 98/6/EC. Directive 2019/2161 also includes important information requirements relating to e.g. search rankings and consumer reviews which do not directly impact this database. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022. The Directive 2019/2161 is not transposed in the U.K. but applies to goods and services within the EU so will affect retailers providing those to EU consumers.
Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked above; these are supposed to be transposed by November 2021 and in force in member states by May 2022. The Directive 2019/2161 is not transposed in the U.K. but applies to goods and services within the EU so will affect retailers providing those to EU consumers.
Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. Article 4 of the MCAD provides that comparative advertising is permitted when eight conditions are met. The most significant of those for our purposes are a) it is not misleading within the meaning of Articles 2 (b), 3 and 8 (1) of this Directive or articles 6 and 7 of Directive 2005/29/EC (see above) and b) it compares goods or services meeting the same needs or intended for the same purpose. There are other significant conditions related to denigration of trademarks and designation of origin, imitation and the creation of confusion. Codified version:
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states. From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).
Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements
The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector. Article 2 provides amends to the E-privacy Directive above
E-privacy Regulation draft (4 November 2020)
Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications)
Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):
Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information such as contact details from the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive also sets out under article 6 more specific information requirements for commercial communications which are part of, or constitute, an information society service. These include identifiability requirements and accessibility to conditions for promotions.
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.
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.
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):
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:
Guidance on the 2014 CPRs:
The Business Protection from Misleading Marketing Regulations 2008 (SI 2008/1276); entry into force 26/05/2008. These regulations (known as BPRs) prohibit misleading business-to-business advertising and set out the conditions under which comparative advertisements (which is any advertisement which identifies a competitor or a competitor’s product) are permitted, implementing Directive 2006/114/EC of the European Parliament and of the Council concerning misleading and comparative advertising (OJ No L376 27.12.2006, p 21) (“the Directive”). The Directive replaces Council Directive 84/450/EEC concerning misleading and comparative advertising (OJ No L250 19.9.84, p 17) and codifies the amendments made to that directive. Council Directive 84/450/EEC was implemented by the Control of Misleading Advertising Regulations 1988 (S.I. 1988/915). Those Regulations are revoked by the Consumer Protection from Unfair Trading Regulations 2008 (S.I. 2008/1277:
Relevant Article: 4 (comparative advertising) formerly Art 3A from Directive 84/450/EEC – transposed by Regulation 4 – on comparative advertising, listing the 8 conditions where comparative advertising can be permitted
Art 3 BPRs also relevant: Prohibition of advertising that misleads traders
Price Marking Order 2004 (SI 2004/102) Entry into force 22/07/2004. This Order implements Directive 98/6/EC (above) on consumer protection in the indication of prices of products offered to consumers. Article 4 requires traders to indicate the selling prices of all products offered for sale to consumers. Article 1 deﬁnes the selling price as the ﬁnal price including VAT and other taxes. Article 6 requires selling and unit prices to be indicated in sterling. Article 7 requires prices and other indications required under the Order to be given in a clear and unambiguous manner. The Order includes speciﬁc provisions relating to general price reductions (article 9).
Guidance for Traders on Pricing Practices by the Chartered Trading Standards Institute (which replaces the UK Government Department for Business Innovation and Skills (BIS) Pricing Practices guide (Nov 2010): This Guidance recommends to traders a set of good practices in giving the consumer information about prices in various situations. It has of itself no mandatory force: traders are not under any legal obligation to follow the practices recommended. The Guidance however takes account of relevant legal obligations, in particular those provisions of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs – shown above) which are relevant to information about prices; the recommended practices are in general expected to be compatible with the CPRs:
Communications Act 2003. The Communications Act incorporates the AVMS Directive 2010/13/EU, following amendments in the form of Audio Media Services Regulations 2009 (AMSR) which inserted VOD provisions (Part 4A; ss368A – R); the Audiovisual Media Services Regulations 2010 which amended and supplemented AMSR 2009; the Audiovisual Media Services (Product Placement) Regulations 2010 which inserted Schedule 11A regarding restrictions on product placement, in addition to further minor amendments to AMSR 2009. The Audiovisual Media Services Regulations 2020 (see below) made amendments to the Broadcasting Acts 1990 and 1996 as well as the Communications Act. The Regulations transpose Directive 2018/1808, which amends Directive 2010/13/EU. The 2018 revising Directive aligns rules for on-demand programme services (ODPS) with those for linear TV, and introduces rules for videosharing platforms (VSPs) for the first time, for which see Part 4b.
The Audiovisual Media Services Regulations 2020. This legislation transposes the Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. Amendments are made to the Communications Act 2003 (see above) and to the Broadcasting Acts 1990 and 1996. Explanatory memorandum immediately below followed by the link to the legislation:
The Ofcom Broadcasting Code. Ofcom is the UK Communications Industry regulator, operating under the Communications Act 2003 and funded by fees from industry for regulating broadcasting and communications networks, and by grant-in-aid from the UK Government. The full Code can be accessed here:
Section 9 of the Code contains a set of principles and general, overarching rules that apply to all commercial references in television programming. It also contains specific rules for different types of commercial activity (e.g. product placement, sponsorship), whether it is carried out by, or on behalf of commercial or non-commercial entities. Guidance notes on Section 9 are here:
General content rules specific to TV and Radio are from Appendix 2, taken from the Audiovisual Media Services Directive 2010/13/EU, 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. Statement. December 7, 2021
The ASA has been designated by Ofcom as the co-regulator for advertising appearing on VOD services. Consequently, appendix 2 has been added to the CAP Code. This will apply to aspects of advertising on VOD services that are subject to statutory regulation under the Communications Act 2003 (as amended). Remit note is here. The Appendix doesn’t introduce new requirements for VOD advertising: VOD providers are already required, under law, to comply with them, and the Appendix doesn’t go beyond the rules that are already in the CAP Code. Adding these requirements to an Appendix of the CAP Code means that the ASA can take action on suspected breaches against the VOD service provider and without the need to refer to Ofcom for legal action. The rules from the Appendix are here:
Data Protection Act 2018. From Part 1, Overview: (1) This Act makes provision about the processing of personal data. (2) Most processing of personal data is subject to the GDPR. (3) Part 2 supplements the GDPR (see Chapter 2) and applies a broadly equivalent regime to certain types of processing to which the GDPR does not apply (see Chapter 3). (4) Part 3 makes provision about the processing of personal data by competent authorities for law enforcement purposes and implements the Law Enforcement Directive. (5) Part 4 makes provision about the processing of personal data by the intelligence services. (6) Part 5 makes provision about the Information Commissioner. (7) Part 6 makes provision about the enforcement of the data protection legislation:
From the iCO (see below): 'The GDPR is retained in domestic law as the UK GDPR, but the UK has the independence to keep the framework under review. The ‘UK GDPR’ sits alongside an amended version of the DPA 2018. The government has published a ‘Keeling Schedule’ for the UK GDPR, which shows the amendments.
Regulatory authority the ICO
Information Commissioner’s Office
Introduction to the Data Protection Act 2018:
Guide to the GDPR:
Guide to Privacy and Electronic Communications Regulations
Direct Marketing Guidance
On July 5, 2023, the ICO issued video guides for small organisations; includes soft opt-in for email and text marketing, data protection, and data protection and direct marketing
Privacy and Electronic Communications (EC Directive) Regulations 2003; entry into force 11/12/2003. These Regulations implement Articles 2, 4, 5 (3), 6 to 13, 15 and 16 of Directive 2002/58/EC of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (E-Privacy Directive). Regulations 20, 21 and 22 set out the circumstances in which persons may transmit, or instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of facsimile machine, make unsolicited calls for those purposes, or transmit unsolicited communications by means of electronic mail for those purposes. Regulation 22 (electronic mail) applies only to transmissions to individual subscribers (the term ‘individual’ means ‘a living individual’ and includes ‘an unincorporated body of such individuals’). Official text (not consolidated):
Consolidated version of key clauses here:
The Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2004. Entry into force 25/06/2004. Permitted companies and other corporate bodies to register with the Corporate Telephone Preference Service (Reg 2 (1-5) amended Reg. 26 of PECR 2003):
The Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011; entry into force 26/05/2011. Amended various provisions including rules on cookies (in particular Reg. 6 (1-5) amended Reg. 6 of PECR 2003)
The Electronic Commerce (EC Directive) Regulations 2002; these regulations impose information obligations on those providing an information society service. They implement the E-Commerce Directive 2000/31/EC, specifically Articles 3, 5, 6, 7 (1), 10 to 14, 18 (2) and 20 of the Directive. Relevant regulations 6,7,8 require inter alia that a service provider shall ensure that: any commercial communication provided by him and which constitutes or forms part of an information society service shall be clearly identifiable as a commercial communication, clearly identify the person on whose behalf the commercial communication is made, clearly identify as such any promotional offer (including any discount, premium or gift) and ensure that any conditions which must be met to qualify for it are easily accessible, and presented clearly and unambiguously. Consolidated text:
The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134). Entry into force: 13/06/2014. These Regulations supersede and replace the Consumer Protection (Distance Selling) Regulations 2000 (as amended) and implement most of the provisions in the Consumer Rights Directive 2011/83/EC. Part 2 of the Regulations requires traders to provide information to consumers in relation to contracts concluded between them. Regulations 13 and Schedule 2 specify the information required for a distance contract (including delivery arrangements, the trader’s complaint handling policy, if there is one, and cancellation rights). Regulation 14 covers requirements for distance contracts concluded by electronic means and Regulation 15 Telephone calls to conclude a distance contract:
CMA (Competition and Markets Authority) Making environmental claims on goods and services. Published 20 September 2021. 'The guidance sets out principles which are designed to help businesses comply with the law. It explains each of these principles. It gives examples of how each of them applies and more detailed case studies where multiple principles apply. The guidance also sets out the legal framework on which these principles are based. The principles are: claims must be truthful and accurate; claims must be clear and unambiguous; claims must not omit or hide important relevant information; comparisons must be fair and meaningful; claims must consider the full life cycle of the product or service; claims must be substantiated.' There's a video available on the linked document.
Green Claims Guidance from the Department for Environment, Food and Rural Affairs (DEFRA):
The EU Commission Guidance on the Application of Directive 2005/29/EC on Unfair Commercial Practices includes Section 5.1 on Environmental Claims, and also provides EU Commission Guidelines for making and assessing environmental claims (Dec 2000). Compliance Criteria on Environmental Claims from Multi-stakeholder Dialogue on Environmental claims 2016 ‘aims to build a common understanding concerning the interpretation of the Unfair Commercial Practices Directive (UCPD) in this area, with a view to achieving a uniform application throughout the EU’.
The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) is the rule book for non-broadcast advertisements, sales promotions and direct marketing communications. This Code applies in media including print, posters, cinema, video and DVDs, mobile phones (SMS and MMS), VOD, Online including brand websites and e-mails. The Code incorporates and supplements provisions of EU law and national legislation. The Committee of Advertising Practice (CAP) is the Self-Regulatory body that creates, revises and enforces the Code. The Advertising Standards Authority (ASA) is the independent body that endorses and administers the Code.
The UK Code of Broadcast Advertising (BCAP Code). This Code applies to all advertisements and programme sponsorship credits on radio and television services licensed by Ofcom:
Misleading advertising. Advice online, Dec 2020
Oh what a tangled web – Misleading ads. CAP News, 16 Jan 2020
The Best Guide to Objective vs Subjective Claims in the Universe. CAP News, 22 Oct 2020
Six top tips to avoid Misleading Advertising. CAP News. Jan 2021
Gender stereotyping and sexuality
CAP and BCAP’s stricter rules prohibiting the sexual portrayal or sexual representation of under-18s (and those who appear to be under 18) in advertising came into force January 2018. The new rules provide that advertising must not portray or represent anyone who is, or seems to be, under 18 in a sexual way. Rules are in full here. For further advice, see CAP’s Sexual Orientation and Gender Identity and Use of Stereotypes.
Championing diversity during Black History Month October 2021
Disabilities in Ads CAP News December 2021
Use of data for marketing
In November 2018, CAP updated and overhauled their Section 10 in the GDPR context and renamed it as Use of data for marketing, reflecting their focus on marketing associated issues versus ‘pure’ database activities.
See also ‘Five top tips on our new rules on the use of data for marketing’:
September 2013 CAP News What is native advertising?
September 2016 Recognising marketing communications: Overview
5 December 2016 Recognising ads: Contextually targeted branded content
Guidance on Video Blogs scenarios:
Video ‘Vloggers, bloggers and brands: a short guide to the ad rules:
Four essential questions to ask about video blogs. October 2016
February 2020. Influencers' guide to making clear that ads are ads
‘Special Edition Influencer Marketing Insight' February 2020
Tweeting: Don’t get all in a Twitter about your #marketing. March 2020
Best Practice Guidance on VAT-inclusive and VAT-exclusive Price Claims Advertising Guidance January 2018:
Prices – General:
Make sure the price is right: using reference pricing in ads. CAP News. February2020
At the right price: making price comparisons with previous prices. CAP News. September 2020
Sales promotions/ promotional marketing
Promotional marketing: Prize winners Advice online 26 October 2021
Promotional marketing: General. October 2016. This guidance gives a brief summary of the key points and where to get more information:
Not all conditions are created equal - a significant insight into significant conditions. CAP News. 11 Sep 2020
Keep your “free” claims problem-free. CAP News 22 October 2020
Covers pure ‘free’ claims, ‘Conditional purchase’ promotions, and Package Offers, with links to other guidances on the topic and some relevant rulings
Misleading environmental claims and social responsibility guidance of 6 June, 2022; updated 10 February 2023 'to include guidance on the use of carbon neutral and net zero claims in advertising, which reflects key principles of the CMA guidance on environmental claims on goods and services.' Updated again June 23, 2023 (the first link still applies) - reflects recent decisions and carries new emphasis on social responsibility.
Recycled reminders for Recycle Week 2023. CAP News 12 Oct 2023
It’s not that easy being ‘green’ – promoting good work without misleading by omission. CAP News July 27, 2023
News/ guidance re-issued June 2020
ASA statement on the regulation of environmental claims and issues in advertising. ASA News, 23 Sep 2021
Misleading environmental claims and social responsibility guidance of December 9, 2021 'consolidates the ASA's position'.
CAP’s document explaining the remit extension and its scope can be found here:
December 2014 CAP published an Online Remit Update which covers in depth the criteria that the ASA Council apply when deciding whether communication on an owned website falls within remit:
And May 2016 CAP Advice on User Generated Content (UGC):
CAP Code Section 2, Recognition of Marketing Communications:
CAP Advice note is here:
CAP issued Avoiding ‘Fake Views’ – A guide to testimonials and endorsements 10 Dec 2020
Direct Marketing Association (DMA). The trade body for the direct marketing industry. The DMA ‘manages programmes to protect consumers against bad practice and increase consumer trust in the industry. It promotes best practice through DMA codes of conduct and provides up-to-the-minute information, research and legal advice.’ www.dma.org.uk ‘The DMA Code is an aspirational agreement to which all DMA members and their business partners must adhere. It aims to promote one-to-one marketing as a true exchange of value between your business, looking to prosper, and your customer, looking to benefit – and provides you with the five clear principles that will guide you to achieve this, and against which your conduct will be measured. An important part of your role as a DMA member is to extol and spread the positive values and goals of this Code, for the benefit of our industry into the future.’ The DMA Code is linked below. More specific advice and guidelines are available to members.
The Incorporated Society of British Advertisers. From their website: ‘ISBA is the only body in the UK that enables advertisers to understand their industry and shape its future because it brings together a powerful community of marketers with common interests, empowers decision-making with knowledge and insight and gives a single voice to advocacy for the improvement of the industry.’ The ISBA Code of Conduct for influencer marketing was launched September 14, 2021. The Code is ‘not a new set of rules and regulations but is a guide to best practice in influencer marketing. It contains commitments from brands, agencies, and talent.’
Updated May 2022: 'The Code is split into three parts, detailing the undertakings which brands, talent agencies, and influencers themselves have each given. It deals with subjects from ad measurement to the issuing of appropriately detailed briefs; and from protecting children and vulnerable groups to fee transparency.' The Code has 'a focus on helping brands to deliver better diversity, equity, inclusion, and representation in their influencer activity.'
IAB UK/ EUROPE
The Interactive Advertising Bureau (IAB) is the UK trade association for digital advertising, representing the UK’s leading brands, media owners and agencies:
How to Comply with EU Rules Applicable to Online Native Advertising
Transparency and Consent Framework (TCF):
February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). Further story here
Gold Standard (ad fraud, brand safety):
The European Self-Regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance:
ICC Advertising and Marketing Communications Code 2018
From the introduction: ‘The ICC Code is constructed as an integrated system of ethical rules. There are General Provisions and Definitions which apply without exception to all marketing communications; these should be read in conjunction with the more detailed provisions and specific requirements set out in the relevant chapters:
Chapter A Sales Promotion
Chapter B Sponsorship
Chapter C Direct Marketing and Digital Marketing Communications
Chapter D Environmental Claims in Marketing Communications'
The European Advertising Standards Alliance is a non-profit organisation based in Brussels; it brings together national advertising Self-Regulatory Organisations (SROs, such as the ASA) and other organisations representing the advertising industry in Europe and beyond. EASA is 'the European voice for advertising self-regulation.' The following link provides members:
World Federation of Advertisers
GDPR guide for marketers:
The WFA launched their Planet Pledge in April 2021
And Global Guidance on Environmental Claims April 2022
The European Sponsorship Association: