SECTION A OVERVIEW

Uploaded Nov 2020

CAP Brexit statement Dec 2020

Links checked July 2021

O2 ASA ruling Sept 2021

ASA ruling on AA July 2022 re verifiability (U)

ASA ruling on Sky v BT July 2023 (U)

Links reviewed December 2023

 LEGISLATION

The statutory rules that govern the conditions for comparative advertising are largely EU-inspired by Directive 2006/114/EC which codified the amended Directive 84/450/EEC. That codified directive is delivered in the UK by a combination of the Business Protection from Misleading Marketing Regulations 2008 (BPRs) and the Consumer Protection from Unfair Trading Regulations 2008 (CPRs), the latter providing rules around misleadingness that relate to comparative claims under BPRs. This is retained legislation in the U.K. The key clauses from Part I, Regulation 4 of the BPR are:

4.  Comparative advertising Definition  “Comparative advertising” means advertising which in any way, either explicitly or by implication, identifies a competitor or a product offered by a competitor shall, as far as the comparison is concerned, be permitted only when the following conditions are met:

1. it is not misleading under regulation 3;
2. it is not a misleading action under regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 or a misleading omission under regulation 6 of those Regulations;
3. it compares products meeting the same needs or intended for the same purpose;
4. it objectively compares one or more material, relevant, verifiable and representative features of those products, which may include price;
5. it does not create confusion among traders -

1. between the advertiser and a competitor, or
2. between the trade marks, trade names, other distinguishing marks or products of the advertiser and those of a competitor;

6. it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, products, activities, or circumstances of a competitor;
7. for products with designation of origin, it relates in each case to products with the same designation;
8. it does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products;
9. it does not present products as imitations or replicas of products bearing a protected trade mark or trade name.

SELF - REGULATION

The rules are in CAP and BCAP Codes Section 3 (links are to the relevant sections)

Comparisons: principle

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 (that is, claims that consumers are unlikely to take literally). Objective superiority claims must make clear the aspect of the product or the marketer's performance that is claimed to be superior.

Comparisons with identifiable competitors

• Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product (3.33 CAP and BCAP)
• They must compare products meeting the same need or intended for the same purpose (3.34 CAP and BCAP)
• They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price (3.35 CAP and BCAP)
• They must not create confusion between the marketer and its competitors or between the marketer's product, trade mark, trade name or other distinguishing mark and that of a competitor (3.36 CAP and BCAP)
• Certain EU agricultural products and foods are, because of their unique geographical area and method of production, given special protection by being registered as having a "designation of origin". Products with a designation of origin must be compared only with other products with the same designation (3.37 CAP and BCAP)

Other comparisons 

• Marketing communications that include a comparison with an unidentifiable competitor must not mislead, or be likely to mislead, the consumer. The elements of the comparison must not be selected to give the marketer an unrepresentative advantage (3.38 CAP and BCAP)

Price comparisons 

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

Imitation and denigration 

• Marketing communications must not mislead the consumer about who manufactures the product (3.41 CAP and BCAP)
• Marketing communications must not discredit or denigrate another product, marketer, trade mark, trade name or other distinguishing mark (3.42 CAP and BCAP)
• Marketing communications 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 (or service – BCAP) 3.43 CAP and BCAP
• Marketing communications must not present a product as an imitation or replica of a product with a protected trade mark or trade name (3.44 CAP and BCAP)

CAP GUIDANCE AND ASA RULING

In the case of the UK in particular, a series of high profile campaigns in the retail and telecoms sectors, for example, created considerable commercial commotion; partly as a result there have been a number of Guidance notes from CAP which we show in our following content section B; key is A quick guide to comparative advertising from Feb 2021. A high profile ruling was against O2 September 2021 who made the claim 'the network voted Britain’s best for coverage.' EE, who believed comparative claims about network coverage should be based on objective technical evidence rather than consumer surveys, challenged whether the claim was misleading. In July 2022, this ruling against the AA's 'No. 1' advertising is instructive as it was as much to do with verifiability as it was the claim itself. In other words, the AA might well have more patrols/ mechanics/ customers, but they couldn't prove it to the satisfaction of the ASA. There are a number of other rulings shown in our following content section B.

GENERAL RULES

The rules that apply to all forms of advertising, comparative included, must also be observed. These are set out below under the General tab. The principal source of rules is the self-regulatory regime managed by the ASA. Their CAP Code covers non-broadcast media, and broadcast rules are provided by the BCAP Code. In legislation, the most significant content rules are from the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) and – for b2b – Business Protection from Misleading Marketing Regulations 2008 (BPRs), both also linked above.

SECTION A OVERVIEW

Updates since March 2023 (slimmed)

* Recommended read

The new data bill from DSIT October 24, 2024

Freshfields on above here Oct 25 & ICO response here

BHM: Avoiding offensive depictions of race in ads

CAP News October 10, 2024

CMA objects to Google’s ad tech practices

CMA September 6, 2024

Comparative Guide and AdLaw Insights Lewis Silkin July 2, 2024. Topics Manifestos, dating apps, Ofcom, alcohol alternatives, in-game purchases, gambling sponsorship, calisthenics claims, KLM, Vinted, green claims directive 

AI

ASA webinar November 14, 2024 (YT)

The UK's new AI Bill. RPC October 17, 2024

AI as a marketing term. CAP News July 11, 2024

The ICO’s strategic approach to regulating AI
RPC August 1, 2024

What's the latest on the UK govt's approach to AI?*
Osborne Clarke Feb 12, 2024 and Burges Salmon Apr 2 and Shoosmith 17th

THE AD CODES

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

INFLUENCERS/ RECOGNITION OF ADVERTISING

Influencers and their business interests RPC Oct 17, 2024

Top tips for responsible influencer marketing CAP News 31 Jul 2024

Influencer Marketing - Key Advice Resources CAP News 21 Feb 2024

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

Ad content legislation (Influencers and generally)

Consumer Law | UK Regulatory Outlook May 2024
Osborne Clarke May 31, 2024

DMCC bill becomes law Wiggin/ Lex June 3, 2024 and BCLP June 6

Retained EU law: 10 key questions. Travers Smith/ Lex March 18, 2024

The Digital Markets, Competition and Consumers (DMCC) Bill, which comes into force January 1, 2025 is significant, relevant legislation, providing the CMA with weighty new powers and essentially absorbing CPRs 2008, which provide the consumer protection measures key in areas such as environmental claims and influential in self-regulatory foundation. The bill carries other important provisions for the digital landscape but less directly relevant to advertising. How the bill might affect CAP and BCAP codes here from Taylor Wessing Dec 14, 2023 and here from Lewis Silkin January 2024. CMA consultation on guidance Wiggin/ Lex June 3, 2024. The new DMCC Act and its impact on the Advertising Codes CAP News June 25, 2024; helpful implementation timeline and tracker here from Wiggin/ Lex September 17, 2024 and Lewis Silkin's 9/12 guide to the law here. 

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 (the CPRs are retained legislation). The UK self-regulatory position reflects the statutory position and the ASA is the 'established means' of advertising regulation; we therefore don't dwell on legislation, albeit in channel rules in particular it's best to know the law as well as the ASA's requirements. As the act brings online financial scam ads into its scope, impact here from Burges Salmon Dec 7, the Online Safety Act may also influence marketers' and agencies' corporate lives: Online Safety Act - An Overview Burges Salmon again Nov 13, 2023. Update from Ofcom here October 17, 2024.

MISLEADINGNESS

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. Also see Q&A: misleading advertising practices in United Kingdom from Herbert Smith Freehills LLP/ Lex June 2024,  Substantiation 101 from CAP 23rd February, 2023 and Misleading ads CAP News March 7, 2024.

ENVIRONMENTAL CLAIMS

Rail-y useful advice on making environmental comparisons

CAP News July 31, 2024

This is obviously a hot topic; the CAP and BCAP codes anyway devote whole sections to the subject: 11 and 9 respectively, set out in our content section B below. The CMA Green Claims Code was published September 20th 2021, their checklist same date here; CAP guidance will 'complement' the CMA's work, which was developed in close consultation with ASA/CAP. Commentary on the CMA guidance from Macfarlanes/ Lex here. The Ofcom Broadcasting Code article 3e C (iv) of appendix 2, from the AVMSD, prohibits in broadcast commercial communications the encouragement of ‘behaviour grossly prejudicial to the protection of the environment’ 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, carrying news of the CMA’s report on the green heating and insulation sector, also covered by Lewis Silkin August 9 here. More specific sector activity is reported in Green claims in fashion retail from TLT LLP/ Lex Feb 29, 2024 and the CMA's September 18, 2024 'Green claims code for fashion businesses' represents the culmination of their extensive work in this territory - flesh on these bones from Lewis Silkin here. A helpful more general round-up is UK regulators and greenwashing March 4, 2024 from Morgan, Lewis & Bockius/ Lex.

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

Green claims update: September 2024 RPC

Virgin Atlantic ruling (U) August 7, 2024

Stepenson Harwood & Lewis Silkin on the above here & here 

Wessex Water ruling (U) July 10, 2024. Ad here

• Key Advice Resources on Green Claims. CAP News August 7, 2024. 'From eLearning and formal Advertising Guidance to Insight articles and our AdviceOnline library - we have a whole host of resources on environmental ‘green’ claims to help marketers get it right first time.'
• It’s not that easy being ‘green’ – promoting good work without misleading by omission. CAP News June 5, 2024. Some pretty brutal rulings; 
• Misleading environmental claims and social responsibility key advertising guidance, updated June 23, 2023; reflects recent decisions and carries new emphasis on social responsibility. Helpful commentary from Lewis Silkin/ GALA here; 
• The WFA launched their Planet Pledge in April 2021 and in April 2022 Global Guidance on Environmental Claims; carries the six principles for a credible environmental claim;
• DLA Piper's August 2024 Environmental Advertising Claims Guide includes the U.K. in its comprehensive coverage;
• Updated environmental guidance: green disposal claims CAP News 28 November, 2023. Includes consumer research and the ASA's 28/11 Greenspeaking with Confidence event. Lively commentary on recycling claims from GALA/ Brinsley Nov 30 here; guidance on green disposal claims is under the June 2023 ad guidance linked above, section 3.1;

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

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

FCA (Financial Conduct Authority) and related

FCA Sustainability disclosure and labelling regime 

Above includes implementation timeframe. Last updated Nov 1, 2024

The FCA has granted temporary flexibility until April 2, 2025

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

​

SECTION A OVERVIEW

SECTION B CONTENT RULES

1. GENERAL COMPARATIVE ADVERTISING RULES

1.1. BPRs and CPRs legislation

1.2. The CAP and BCAP Codes

2. COMPARATIVE CLAIMS IN SPECIFIC SECTORS

2.1. Environmental claims

2.2. Food and food supplements claims

2.3. Alcohol

3. CAP GUIDANCE AND RULINGS 

4. SOME CASE LAW

5. GENERAL RULES

1. GENERAL COMPARATIVE ADVERTISING RULES

Comparative advertising is defined by Business Protection Regulations (BPRs) as 'advertising which in any way, either explicitly or by implication, identifies a competitor or a product offered by a competitor.'

The key regulation is No.4 from the Business Protection from Misleading Marketing Regulations 2008 (BPRs), implementing Directive 2006/114/EC. In essence, Regulation 4 says that comparative advertising must not be misleading under BPRs Regulation 3 or the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) Regulation 5 Misleading action and Regulation 6 Misleading omission

Regulation 4 BPRs

Comparative advertising shall, as far as the comparison is concerned, be permitted only when the following conditions are met:

1. It is not misleading under regulation 3 (see immediately below)

• Advertising is misleading which (Regulation 3 (2):

1. In any way, including its presentation, deceives or is likely to deceive the traders to whom it is addressed or whom it reaches; and by reason of its deceptive nature, is likely to affect their economic behaviour; or
2. For those reasons, injures or is likely to injure a competitor

• Regulation 3 (3): In determining whether advertising is misleading, account shall be taken of all its features, and in particular of any information it contains concerning:

1. The characteristics of the product;(as defined in paragraph 4; see below)
2. The price or manner in which the price is calculated
3. The conditions on which the product is supplied or provided; and
4. The nature, attributes and rights of the advertiser (as defined in paragraph 5; see below)

Paragraph 4: in paragraph 3a above ‘characteristics of the product’ include (a-m):

• Availability, nature, execution, composition, method and date of manufacture, method and date of provision, fitness for purpose, uses, quantity, specification, geographical or commercial origin, Results to be expected from use of the product, or results and material features of tests or checks carried out on the product
• Under paragraph 5 the ‘nature, attributes and rights’ of the advertiser include the advertiser’s: Identity, assets, qualifications, ownership of industrial, commercial or intellectual property rights; or awards and distinctions

2.  It is not a misleading action under regulation 5 of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) or a misleading omission under regulation 6 
3.  It compares products meeting the same needs or intended for the same purpose (see Lidl v Vierzon C-159/09)
4. It objectively compares one or more material, relevant, verifiable and representative features of those products, which may include price
5. It does not create confusion among traders:

1. Between the advertiser and a competitor, or
2. Between the trademarks, trade names, other distinguishing marks or products of the advertiser and those of a competitor

6. It does not discredit or denigrate the trademarks, trade names, other distinguishing marks, products, activities, or circumstances of a competitor
7. For products with designation of origin, it relates in each case to products with the same designation
8. It does not take unfair advantage of the reputation of a trademark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products
9. It does not present products as imitations or replicas of products bearing a protected trademark or trade name

Additional guidance / commentary

• Office of Fair Trading guidance on BPRs here; the OFT closed in 2014, but the guidance is still relevant; includes a comparative advertising compliance checklist
• Flowchart (from above guidance) to check whether advertising complies with the BPRs

1. 2. Self-regulatory rules

 CAP Code here and BCAP Code here; the latter applies to broadcast advertising, the former to just about everything else. Both codes include comparative issues in the same Section 3 (Misleading advertising), and set out to all intents and purposes the exact same rules so we have merged them below: 

Principle

• 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 (that is, claims that consumers are unlikely to take literally). Objective superiority claims must make clear the aspect of the product or the marketer's performance that is claimed to be superior

Comparisons with identifiable competitors

• Marcoms / advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product (3.33 CAP / BCAP)
• They must compare products meeting the same need or intended for the same purpose (3.34 CAP  /BCAP)
• They must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price (3.35) See CAP Guidance: Comparisons - Verifiability (Sept 2023)
• They must not create confusion between the marketer and its competitors or between the marketer's product, trade mark, trade name or other distinguishing mark and that of a competitor (3.36 CAP / BCAP)
• Certain EU agricultural products and foods are, because of their unique geographical area and method of production, given special protection by being registered as having a "designation of origin". Products with a designation of origin must be compared only with other products with the same designation (3.37 CAP / BCAP)

Other comparisons

• Marcoms / ads that include a comparison with an unidentifiable competitor must not mislead, or be likely to mislead, the consumer. The elements of the comparison must not be selected to give the marketer an unrepresentative advantage (3.38 CAP/BCAP)

Price comparisons

• Marcoms/ ads that include a price comparison must make the basis of the comparison clear (3.39 CAP/BCAP)
• CAP publish Prices: Overview (July 2023) in of itself a valuable advice collection and includes Lowest Price Claims and Promises (August 2023)
• Price comparisons must not mislead by falsely claiming a price advantage. Comparisons with recommended retail prices (RRPs) are likely to mislead if the RRP differs significantly from the price at which the product or service is generally sold (3.40 CAP / BCAP)
• Note: In addition to the rules on prices under Section 3 of CAP Code, CAP and the ASA will take into account the Chartered Trading Standards Institute ‘Guidance for Traders on Pricing Practices’
• See also CAP News At the right price: making price comparisons with previous prices (September 2020)

Imitation and denigration

Marcoms must not:

• Mislead the consumer about who manufactures the product (3.41)
• Discredit or denigrate another product, marketer, trade mark, trade name or other distinguishing mark (3.42)
• 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 (3.43) See: CAP Guidance: Unfair Advantage (old - 2014 - but still in resource centre)
• Present a product as an imitation or replica of a product with a protected trade mark or trade name (3.44)
• See CAP Guidance on denigration (Dec 2020)

2. COMPARATIVE CLAIMS IN SPECIFIC SECTORS

2.1. The environment

Section 11 CAP / 9 BCAP environmental claims and the CMA

• Absolute claims must be supported by a high level of substantiation. Comparative claims such as "greener" or "friendlier" can be justified, for example, if the advertised product provides a total environmental benefit over that of the marketer's previous product or competitor products and the basis of the comparison is clear (CAP 11.3 / 9.4 BCAP)
• Government guidance includes the Green Claims Code published September 2021 by the statutory authority the CMA here. The CMA is making considerable waves in environmental marketing, as has been widely reported. The organisation works closely with CAP/ ASA to ensure consistency. The code is based on 6 principles:

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

• ​The code explains each of the principles with illustrative examples, including that for comparisons, extracted here. The Green Claims Code checklist is also helpful and includes: If a comparison is being used, the basis of it is fair and accurate, and is clear for all to understand
• See July 2023 Advertising Guidance - misleading environmental claims and social responsibility from CAP and BCAP; this doesn't address comparative claims specifically, but is an important document in this environmental context 

2.2. Food and food supplements

Section 15 CAP/ Section 13 BCAP:  food, food supplements and associated health or nutrition claims

• Comparative nutrition claims must compare the difference in the claimed nutrient to a range of foods of the same category which do not have a composition which allows them to bear a nutrition claim (15.3 CAP / 13.5 BCAP)
• A marcom may use one product as the sole reference for comparison only if that product is representative of the products in its category (15.3.1 CAP/ 13.5.1 BCAP)
• The difference in the quantity of a nutrient or energy value must be stated in the marketing communication and must relate to the same quantity of food (15.3.2 CAP / 13.5.2 BCAP)

CAP guidance on comparative claims in food advertising here and set out below

Comparative nutrition claims

• Claims that state or imply that a food has particular beneficial nutritional properties because of its ingredients must comply with the criteria for use set down in the Annex from Regulation EC No. 1924/2006 (CAP 15.1.1).
• Comparative nutrition claims are permitted but the circumstances under which they can be made are heavily restricted, not least because there are only four comparative nutritional claims listed in the Annex.  These are "increased [name of the nutrient]", "reduced [name of the nutrient]", "energy reduced" and "light"
• Rule 15.3 of the CAP Code Rule Comparative nutrition claims must compare the difference in the claimed nutrient to a range of foods of the same category which do not have a composition which allows them to bear a nutrition claim sets out the requirements for making a comparative nutrition claim, both in terms of what can be compared and the content required in ads including such claims.  See “food: nutrition claims” for guidance on its application. 

Comparative health claims

• As with all health claims, comparative health claims may only be made if they are authorised in the Register and meet the conditions of use associated with the relevant claim, as specified in the Register (CAP rules 15.1 and 15.1.1). CAP understands that an example of a comparative health claim would be “Consumption of foods containing fructose leads to a lower blood glucose rise compared to foods containing sucrose or glucose” (see the Register for the conditions of use)
• The ASA investigated the claim "no other food lowers cholesterol more" for a product which was allowed to make the authorised reduction of disease risk claim "Plant sterols have been shown to lower/ reduce blood cholesterol. High cholesterol is a risk factor in the development of coronary heart disease". Because the authorised claim did not have a comparative element, and the claim “no other food lowers cholesterol more" was not itself listed as authorised on the EU Register, the ASA ruled it breached the code (Unilever UK Ltd, 16 October 2013). See ruling here

2.3. Alcohol

• 18.9 CAP / 19.10 BCAP: Marcoms may give factual information about the alcoholic strength of a drink. They may also make a factual alcohol strength comparison with another product, but only when the comparison is with a higher-strength product of a similar beverage
• Marcoms must not imply that a drink may be preferred because of its alcohol content or intoxicating effect. There is an exception for low-alcohol drinks, which may be presented as preferable because of their low alcoholic strength.
• In the case of a drink with relatively high alcoholic strength in relation to its category, the factual information should not be given undue emphasis
• 18.17 CAP / 19.18 BCAP: Marcoms may give factual information about product contents, including comparisons, but must not make any health, fitness or weight-control claims. The only permitted nutrition claims are "low-alcohol", "reduced alcohol" and "reduced energy" and any claim likely to have the same meaning for the consumer

3. CAP GUIDANCE AND ADJUDICATIONS/ RULINGS

Shown below are some of the many CAP comparisons guidance/ advice documents. We show the most relevant and some sections; you should read the full linked guidance. 

From Guidance on Misleading advertising (August 2022)

• Specific Code rules apply to ads which make comparisons (rules 3.33 – 3.38)
• When making comparisons with identifiable competitors, in addition to holding evidence to substantiate the claim, marketers must compare products meeting the same need or intended for the same purpose, and must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price
• Marketers are also advised to include a signpost to where consumers and competitors can access information on the basis of objective comparative claims by, for example, providing a website address where verification information is provided
• For guidance on the requirements when making comparative claims see Comparisons: General, Comparisons: Identifiable competitors and Comparisons: Verifiability

From Substantiation guidance (November 2022) 

• Comparisons can be both implicit and explicit and relate to both identifiable and non-identifiable competitors. Specific Code rules apply to ads which make comparisons (rules 3.33 – 3.38)
• Marketers wanting to make objective comparative claims, such as “leading”, “best”, or “cheaper”, for example, must hold evidence relating to both their own products and those of the competitor or competitors that are the subject of the comparison

• When making comparisons with identifiable competitors, in addition to holding evidence to substantiate the claim, marketers must "compare products meeting the same need or intended for the same purpose" (3.34), and must "objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price" (3.35).

• The ASA considered that the claim “The Best Alarm Technology on the Market” would be understood to mean that the advertiser’s alarm systems were technologically superior to all other providers in the UK. Because the advertiser only had evidence relating to three competitors, and a relatively small number of features offered, this was not considered adequate to substantiate the claim. (Verisure Services (UK) Ltd, 01 June 2022)'

• This is an important guidance document and, as the name implies, has a broad coverage of different areas in comparative advertising:

Comparisons with identifiable competitors

Comparisons with unidentifiable competitors

Price comparisons

• Under each of the links above, you'll find guidance on the subject, links to relevant rulings and further advice notes; in particular Check the available guidance carries some 15 different claim areas (Best, leading, No.1 etc. and issues such as verifiability and pricing)

 A quick guide to comparative advertising (CAP News. 26 Feb, 2021)
Key extracts - see full guidance

1. What claim do you want to make? Unless it is obviously ‘puffery’, the ASA is likely to regard superiority and top parity claims as objective. Superiority claims are those which claim to be better than competitors, such as ‘No. 1’ or ‘market leading’, whereas top parity claims are those which state that an advertiser is one of the best, for example, “just as strong as any other”.  Depending on the context, describing your product as the “best” could potentially be regarded as subjective. However, the ASA has previously upheld “best” claims where it considered that, in context, they would be understood as objective
2. Is it a comparison with an identifiable competitor? Comparisons with identifiable competitors are subject to specific rules (CAP Code rules 3.33 – 3.37). As an example, ‘leading’ claims are, by their nature, likely to be seen as a comparison with all competitors, which will mean they are likely to be identifiable, as are claims like “UK’s most effective” and “UK’s cheapest”. For more on comparisons with identifiable competitors, see here
3. Are you comparing the right things? Comparisons with identifiable competitors must compare products meeting the same need or intended for the same purpose (CAP Code rule 3.34).Essentially, the products being compared must display a sufficient degree of interchangeability for consumers. Examples of products it could potentially be acceptable to compare under this rule include: branded and non-branded versions of the same underlying product or organic and non-organic produce. However, you must always ensure the basis of the claim is clear and that the ad isn’t likely to mislead consumers materially
4. Is the comparison verifiable? Comparisons with identifiable competitors must objectively compare one or more material, relevant, verifiable and representative feature of those products, which may include price (CAP Code rule 3.35). A competitor doesn’t need to be named to be identifiable, and the ASA has ruled against ads which did not include verifiability information where a competitor was not explicitly named. Feeling vexed about verifiability?  Read our previous article on this here.

This is relatively lengthy guidance so we have linked the key headers except the first set out below, which defines – or contextualises - verifiability

What is meant by verifiable?

• The Code does not specify what constitutes ‘verifiable’, but in 2006 the European Court of Justice ruled in the case of Lidl v Colruyt (Case C-356/04; Judgement 2006:585; Opinion 2006:206) that for a general price comparison to be verifiable, the advertiser should set out the relevant information in the ad or signpost how the information used to make that comparison can be checked by the target audience. While CAP does not give legal advice, the ASA has taken this position into account when investigating complaints on this issue.

What kinds of comparisons require verification information?
What information is needed to make something verifiable?
Where should I provide the information?
What about surveys and test results?
What if my comparison is based on confidential information?

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

Sea also Verifiability in advertising: What? When? How? (CAP News March 2016)

​

Types of claims

General 

(above includes all below and some others)

“Leading”

“No.1”

“Only” and “One and only”

“Premier”

“Safe”

Comparative

Subjective or Objective superlative

Superlative

Parity and Top parity

Unsubstantiable

As comparative advertising may include claims that require clarification/ qualification, Guidance on the use of qualifications in ads from November 2020

4. SOME CASES

Cases are provided verbatim and do not represent a point of view or opinion from GRS. Seek advice in the event that you are developing comparative advertising

Malicious falsehood

• Compaq Computer Corp v Dell Computer Corp Ltd (1992 FSR 93): case involved advertising showing the defendant’s computer and rival’s computer side by side. Below the images details of both computers were shown which included price and performance. The defendant’s computer was cited as being the best value however this was misleading as regards the price because the defendant had used a heavily discounted price of its machine compared to the normal listed price for the rival’s machine. Interim injunction was granted
• McDonald’s Hamburgers Ltd v Burgerking UK Ltd (1987 FSR 112): involved an advertising campaign in the London underground system featuring adverts picturing a huge hamburger and the slogan, "It's Not Just Big, Mac." In smaller print, the advert described the Whopper and said: "Unlike some burgers, it's 100% pure beef." This statement did not amount to malicious falsehood. However, it did constitute passing off, and an injunction was granted barring BK from using the advertising
• DSG Retail Ltd (Currys) v Comet Group plc (2002, FSR 899); the case involved advertising posters displayed by Comet claiming that its prices were lower than its competitors. A claim was also made that it would beat any of its competitors’ 10% off and weekend £10 off promotions. Sellotaped to some of the posters were Currys press advertisements. It was held that Comet’s price statements referring to Currys were false and that Comet must have appreciated they were false. Comet tried to argue that they were “mere puff” and would not be taken seriously by the public, but the judge drew a distinction between the statements “My goods are better than X’s” and “I charge less than X for the same goods.” Statements about price are inherently more likely to be taken seriously
• The Judge formulated a list of relevant questions, all of which were answered in the affirmative in this case:

• Whether the defendant’s advertisements were directed at the claimant
• Whether the meaning in the advertisements was false
• Whether the advertisements were intended to be taken seriously
• Whether the advertisements had been published maliciously; and
• Whether there was a likelihood that the claimant would suffer actual damage

• Emaco vs Dyson Appliances (1999); involved a graph depicting that a Dyson cleaner had greater suction power than the Electrolux counterpart. The graph referred to results as being “independent test results”. However, at the time of the release no independent tests had been carried out. Dyson employee had not realised this and was therefore grossly negligent. Dyson did not withdraw the advert and instead commissioned test results in the belief that their claim would be vindicated. It was held to be not malicious and that carelessness did not equate to recklessness

Trademark infringement in advertising

• Barclays Bank plc v RBS Advanta [1996] RPC 307  Held: the purpose of s 10 (6) was to allow comparative advertising as long as it was honest. The burden was on the proprietor to show that one of the factors in the proviso to s 10 (6) applied: that is, that the use was not in accordance with honest practices in industrial or commercial matters, or that it took unfair advantage of, or was detrimental to, the distinctive character or repute of the trade mark
• Case C44/01 Pippig Augenoptik GmbH & Co KG v Hartlaeur Handelsgesellschaft mbH. Held: price comparisons did not discredit a competitor under Art. 3a(1e) (Comparative advertising, shall as far as the comparison is concerned, be permitted when it does not discredit or denigrate the trademarks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor)
• O2 Holdings Ltd v Hutchinson 3G Ltd (2007) RPC 16 Facts: TV ad for mobile phone services comparing Three’s service as cheaper to the similar service provided by O2. The ad featured use of the term O2 and bubbles both of which were registered trademarks. High Court ruled In favour of 3G. The ad would have infringed s.10(1) but for defence in s.11(2b) (use in the course of trade or indications concerning the kind, quality, quantity, intended purpose, value, etc. providing the use is in accordance with honest practices in industrial or commercial matters). Due to Comparative Advertising Directive, s. 10(6) should be interpreted as allowing comparative advertising provided it was conducted in accordance with the honest practices. Neither was the advert confusing nor did it take advantage of O2’s registered trademarks
• Court of Appeal: Comparative advertising will not infringe a trademark provided it complies with MCAD (now 2006/114/EC) and it is in accordance with honest practices in industrial and commercial matters. That disparaging, albeit non-misleading use (as in BA v Ryanair) would not be in accordance with such practices. Series of questions also referred to ECJ, who ruled: Use of a trademark in comparative advertising constituted trademark use. But the proprietor of a registered trademark was not entitled to prevent the use of a trademark identical to or similar with their mark in comparative advertising where all the conditions listed in Art. 3a(1) (now Art. 4 2006/114/EC) were satisfied. The ECJ pointed out that comparative adverts will not be permitted where there is a likelihood of confusion between the advertiser and competitor and between the advertiser’s trademarks, goods or services and those of the competitor (which would in any case fail to satisfy Art. 3a(1d) (now Art. 4(h)) thereby infringing the ad)

L’Oreal v Bellure

• ECJ: C-87/07 L’Oréal SA v Bellure NV  (2009) ETMR 55 (Court of Appeal: L’Oreal SA v Bellure NV (2010) EWCA Civ 535)
• Bellure was selling perfumes that were imitations of L’Oreal’s. Lists had been published comparing the two, using word trademarks from L’Oreal – such as TRÉSOR, MIRACLE, ANAÏS-ANAÏS and NOA NOA for perfumes, disclosing which of the products from Bellure corresponded to those of L’Oreal
• L’Oreal commenced proceedings for trademark infringement of the word marks under s. 10 (1) and infringement of the bottle and box marks under 10 (3) Trade Marks Act 1994
• The High Court originally upheld claims for trademark infringement in relation to certain "look-alike" and "smell-alike" perfumes ([2006] EWCH 2355 Ch). The case was referred to the Court of Appeal which referred questions to the ECJ concerning the inter-relationship of the Trade Marks Directive (89/104/EEC) and the Comparative Advertising Directive (97/55/EC) (CAD), where the trademark use was made in a manner that did not cause confusion and did not jeopardise the function of the trademark as a guarantee of origin (i.e. essential function), but played a significant role in the promotion of the trader's product. Lord Justice Jacob also sought guidance on the meaning and scope of the concept of "unfair advantage" within Article 5 (2) of the Trademark Directive (Art. 10(3) Trade Marks Act) and Article 3a (1) (g) of the CAD (now Art. 4 (f) 2006/114/EC)
• The defendants argued that they were selling a legal product (it is not unlawful to make smell-alike products), and were simply describing the smell to their customers and should be free to do so since there was no harm to the "essential function" of the perfume marks (that of indicating the origin of the goods)
• In terms of what constitutes trademark use for purposes of Article 10, provided a trade mark is not used as an indication of origin but is used to describe the goods, and this is clear in the circumstances, there can be no infringement (as per Case C2/00 Holterhöff v Freiesleben - [2002] ECR I-4187). They therefore argued that the comparison lists did not fall under Article 10 TM Act (Art. 5 (1) / (2) TM Directive) and that the trademark use complied with the CAD 
• ECJ disagreed and held that the comparison lists fell within Art. 10 (1) (Art. 5 (1)(a) TM Directive), that the use went beyond “purely descriptive” use because it was used for advertising, broadening the categories of "functions of a trade mark" that could be damaged beyond the essential function to include: a guarantee of quality, communication, investment or advertising
• So COA ruled that the use of famous perfume brand names (Trésor etc) to describe the smell of differently branded but “smell-alike” products was an infringement of the trade mark rights in those famous brand names and breached the Comparative Advertising Directive’s (84/450/EEC) (CAD) criteria for legitimate comparative advertising (now MACAD - 2006/114/EC)

5. GENERAL RULES 

Comparative advertising, while largely concerned with misleadingness rules, should also observe the other 'general' rules, i.e. those that apply to all forms of advertising. These include, for example, rules on taste and decency, gender stereotyping and how claims might be 'qualified' in advertising. The main source of rules in the U.K. is provided by the CAP and BCAP codes in self-regulation, and in legislation the most significant and relevant rules are those provided by the CPRs and the BPRs  linked under point 1 above. Full rules are set out under the General tab below.

SECTION B CONTENT RULES

1. SELF-REGULATION: THE CAP AND BCAP CODES

1.1. Recognition of advertising/ marketing communications

1.2. Misleadingness

1.2.8. Comparisons

Comparisons with Identifiable competitors

Other comparisons

Price comparisons

Imitation and denigration

1.2.9. Endorsements and testimonials

1.3. Harm and offence
Health/ safety
Social responsibility

Gender stereotyping

1.4. Environmental claims

2. LEGISLATION IN ADVERTISING (Content)

2.1. CPRs and BPRs/ Unfair Commercial Practices Directive

2.2. Ofcom Broadcasting Code/ AVMS Directive

2.3. Pricing

The scope of the CAP code is here and BCAP here

1.1. Recognition of marketing communications

CAP Code Section 2

• 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:
   

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

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

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

1.2.1. General

• 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.

  • CAP publishes the Guidance note on misleading advertising in non-broadcast communications, and ‘Oh what a tangled web we weave’ under the CAP News banner December 2020

• 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)

1.2.2. Substantiation

• 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)

• The Best Guide to Objective vs Subjective Claims in the Universe. CAP News, 22 Oct 2020

• 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.

Example rulings

1. 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

2. 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

3. 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

• Delivery charges

• 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)

Example rulings

1. 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
    

2. 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
    

3. 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
   https://www.asa.org.uk/rulings/ladbrokes-betting-gaming-ltd-a15-321841.html

• 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)

1.2.3. Qualifications

• 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)

Example rulings

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:

https://www.asa.org.uk/rulings/water-fuel-cell-ltd-a13-241209.html

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:
https://www.asa.org.uk/rulings/loral-uk-ltd-a15-297452.html

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)

• Marketing communications must not specifically claim that the advertiser’s job or livelihood is at risk if the consumer does not buy the product (CAP Code, rule 3.15; BCAP Code, rule 3.17)
• A marketing communication must not promote a pyramid promotional scheme (CAP 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

• Price statements must not mislead by an omission, an undue emphasis or a distortion. They must relate to the product or service that is featured in the marketing communication/ advertisement (CAP Code, rule 3.17; BCAP Code, rule 3.18)
• Quoted prices must include non-optional taxes, duties, fees and charges that apply to all or most buyers. However, VAT-exclusive prices may be given if all those to whom the price claim is clearly addressed pay no VAT or can recover VAT.  Such VAT-exclusive prices must be accompanied by a prominent statement of the amount or rate of VAT payable (CAP Code, rule 3.18; BCAP Code, rule 3.19). See Best Practice Guidance on VAT-inclusive and VAT-exclusive Price Claims Advertising Guidance January 2018
• If a tax, duty, fee or charge cannot be calculated in advance (for example, if it is dependent on the consumer’s circumstances), the marketing communication/ advertisement must make clear that it is excluded from the quoted price and state how it will be calculated (CAP Code, rule 3.19; BCAP Code, rule 3.20)
• Marketing communications/ advertisements that state prices must also state applicable delivery, freight or postal charges or, if those cannot reasonably be calculated in advance, state that such charges will be payable (CAP Code, rule 3.20; BCAP Code, rule 3.22)
• Advertisements that quote instalment costs must state the total price of the advertised product or service and the instalment frequency as prominently as the cost of individual instalments (BCAP Code, rule 3.21)
• If the price of a product depends on another, marketing communications/ advertisements must make clear the extent of the commitment the consumer is required to make in order to obtain the advertised price (CAP Code, rule 3.21; BCAP Code, rule 3.23)
• If a price claim is one that states the price is ‘up to’ or ‘from’, it must not exaggerate the availability or amount of benefits likely to be obtained by the customer (CAP Code, rule 3.22; BCAP Code, rule 3.24)

Ensure prices match the product shown

• Marketers should not feature a picture of a top-of-the-range or enhanced product and quote in the headline a price for a lower specification model
• For example, in 2014 the ASA upheld a complaint that a car ad was misleading because the models featured were shown with metallic paint and alloy wheels, which were not included in the price shown BMW UK Ltd, 5 March 2014 breached 3.1 and 3.3 CAP
• If the price of the model shown is stated with less prominence than the headline price claim, the ad still has the potential to mislead (in this case the info was included in the T&Cs)
• Similarly, even if that price is prefaced by ‘from’, consumers are still likely to infer that it relates to the model shown and not to a lower spec. product not featured in the ad.

Do not use ‘from’ and ‘up to’ to exaggerate the availability of a product at a given price

• In the past the ASA has applied a rule of thumb that 10% of the products or services advertised should usually be available at the "from" or "up to" price based on the 2010 BIS Pricing Practices Guide. In 2016 the CTSI published new Guidance for Traders on Pricing Practices. This new guidance states that, when using “from” or “up to” to advertise a saving, advertisers must ensure that a significant proportion of sale items are discounted at the maximum saving, and that these claims represent the true overall picture of the price promotion
• Whilst the current guidance no longer uses the 10% rule, and instead states that a significant proportion should be available, it offers no further guidance on what is considered a significant proportion, and the ASA will investigate this on a case by case basis. An ad for a January sale which stated “up to 70% off plus a further 10% off” was upheld by the ASA because the number of sale items which were discounted by 70% before the additional 10% discount was 8.63%, which was not considered a significant proportion (Better Bathrooms UK Ltd, 4 October 2017).

Additional CAP advertising guidance

Best Practice Guidance on VAT-inclusive and VAT-exclusive Price Claims Advertising Guidance January 2018

Retailers’ Price Comparisons February 2013

 Lowest Price Claims and Price Promises February 2013

Availability September 2016

See also provisions from the Consumer Protection from Unfair Trading Regulations 2008 under Point 2 in this section

Principle

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)

• If there is a ‘free’ offer on a product, the marketing communication/ advertisement that presents that offer must make clear the extent of commitment the consumer must make to take advantage of it (CAP Code, rule 3.23; BCAP Code, rule 3.25)
• Marketing communications/advertisements must not describe a product as “free” if –

• Consumers have to pay packing, packaging, handling or administration charges
• The cost of response, including the price of a product that consumers must buy in order to take advantage of the offer, has been increased, except where the increase results from factors that are unrelated to the cost of the promotion; or
• The quality of the product or service that the consumer must buy in order to take advantage of the offer has been reduced (CAP Code, rule 3.24; BCAP Code, rule 3.25)

• Marketing communications/ advertisements must not describe part of a package as ‘free’ if that part is included in the package price, unless a consumer is likely to regard that part as an additional benefit because it has recently been added to the package without increasing its price (CAP Code, rule 3.25; BCAP Code, rule 3.26)
• Marketing communications/advertisements must not use the term ‘free trial’ to in fact describe a ‘satisfaction or your money back’ offer, or to describe an offer for which a non-refundable purchase is required (CAP Code, rule 3.26; BCAP Code, rule 3.27)

• An extensive Advertising Guidance note on the use of Free Claims is published jointly by CAP and BCAP, last revised September 2010. This includes, for example, the difference between a ‘conditional purchase offer’ and a ‘package’.

• 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’

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

Example ruling

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:

https://www.asa.org.uk/rulings/hillside-new-media-ltd-a13-245703.html

English High Court considers when ads are comparative by implication

Osborne Clarke/ Lex April 9, 2024

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

Comparisons with identifiable competitors

• From CAP News 31/3/2016: Identification can be explicitly or by implication; you don’t have to name a competitor
• Marketing communications/ advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or service or the competing product or service (CAP Code, rule 3.33; BCAP Code, rule 3.33)
• Marketing communications/ advertisements must compare products or services that are used for the same need or intended for the same purpose (CAP Code, rule 3.34; BCAP Code, rule 3.34)
• Marketing communications/ advertisements must objectively compare at least one material, relevant, verifiable and representative feature of the two products, which may include price (CAP Code, rule 3.35; BCAP Code, rule 3.35)

• Vexed by verifiability? How to make sure your ads comply. CAP News. February 2020

• ‘Verifiable’ simply means including enough information in the ad to enable consumers to fully understand, and check the accuracy of comparative claims. In order to ensure that this is the case, an ad should include, for example, information about what the comparative claim is based on and (in some cases) a signpost to where consumers can find this information
• The link below is to a significant and relevant Judicial Review of an ASA ruling in the context of Tesco ‘Price Promise’ advertising; the core of the case relates to rule 3.34 above on products ‘used for the same need or intended for the same purpose’ and the interpretation in law of ‘sufficient interchangeability’:
  http://www.bailii.org/ew/cases/EWHC/Admin/2014/3680.html
• Marketing communications/ advertisements must not create confusion between the marketer/advertiser and its competitors or between the marketer and the competitor’s product, trade mark, trade name or other distinguishing mark and that of a competitor (CAP Code, rule 3.36; BCAP Code, rule 3.36)
• Certain EU agricultural products and foods are, because of their unique geographical area and method of production, given special protection by being registered as having a ‘designation of origin’. Products that are registered as having a ‘designation of origin’ should be compared only with other products with the same designation (CAP Code, rule 3.37; BCAP Code, rule 3.37)

Other comparisons

• Marketing communications/ advertisements that include comparisons with unidentifiable competitors must not mislead, or be likely to mislead, the consumer. The elements of the comparison must not be selected to give the advertiser an unrepresentative advantage (CAP Code, rule 3.38; BCAP Code, rule 3.38)

Price comparisons

• When a marketing communication/advertisement makes a price comparison with another product, the basis of that comparison must be made clear (CAP Code, rule 3.39; BCAP Code, rule 3.39)
• Price comparisons must not mislead a consumer by falsely claiming a price advantage. Comparisons that state a recommended retail price are likely to mislead if the recommended retail price differs significantly from the price at which the product or service is generally sold (CAP Code, rule 3.40; BCAP Code, rule 3.40)
• September 2020 CAP News provided At the right price: making price comparisons with previous prices.

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’

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

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

• 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’

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

• For guidance on the rules when featuring celebrities or members of the public, see CAP’s July 2020 A guide to the Privacy rules 
• CAP issued Avoiding ‘Fake Views’ – A guide to testimonials and endorsements 10 Dec 2020. This covers issues such as restricted categories, incentivisation, identification, obtaining permission and demonstrating that testimonies are genuine, as well as showing adjudications relevant to those issues

Rulings search ‘Endorsements and testimonials’

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

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

• Marketing communications must not contain anything that is likely to cause serious or widespread offence. Particular care must be taken to avoid causing offence on the grounds of: age; disability; gender; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. Compliance will be judged on the context, medium, audience, product and prevailing standards
• Marketing communications may be distasteful without necessarily breaching this rule. Marketers are urged to consider public sensitivities before using potentially offensive material. The fact that a product is offensive to some people is not grounds for finding a marketing communication in breach of the Code (CAP Code, rule 4.1)
• Advertisements must contain nothing that could cause physical, mental, moral or social harm to persons under the age of 18 (BCAP Code, rule 4.1)
• Marketing communications must not cause fear or distress without justifiable reason; if it can be justified, the fear or distress should not be excessive. Marketers must not use a shocking claim or image merely to attract attention (CAP Code, rule 4.2) Advertisements must not distress the audience without justifiable reason. Advertisements must not exploit the audience's fears or superstitions (BCAP Code, rule 4.10)
• Advertisements must not cause serious or widespread offence against generally accepted moral, social or cultural standards. Particular care must be taken to avoid causing offence on the grounds of: age; disability; gender; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation (BCAP Code, rule 4.2)
• References to anyone who is dead must be handled with particular care to avoid causing offence or distress (CAP Code, rule 4.3)
• Advertisements must not exploit the special trust that persons under the age of 18 place in parents, guardians, teachers or other persons (BCAP Code, rule 4.3)
• Marketing communications must contain nothing that is likely to condone or encourage violence or anti-social behaviour (CAP Code, rule 4.4) Advertisements must not condone or encourage violence, crime, disorder or anti-social behaviour (BCAP Code, rule 4.9)
• Marketing communications, especially those addressed to or depicting a child, must not condone or encourage an unsafe practice; see Section 5: Children (CAP Code, rule 4.5)
• Marketing communications must not encourage consumers to drink and drive. Marketing communications must, where relevant, include a prominent warning on the dangers of drinking and driving and must not suggest that the effects of drinking alcohol can be masked (CAP Code, rule 4.6)
• Marketing communications must not portray or represent anyone who is, or seems to be, under 18 in a sexual way. However, this rule does not apply to marketing communications whose principal function is to promote the welfare of, or to prevent harm to, under-18s, provided any sexual portrayal or representation is not excessive (CAP Code, rule 4.8, BCAP Code, rule 4.13)
• [Advertisements] must not include gender stereotypes that are likely to cause harm, or serious or widespread offence (CAP Code, rule 4.9, BCAP Code rule 4.14) See Advertising Guidance: Depicting gender stereotypes likely to cause harm or serious or widespread offence
• See also Harm and Offence: Crossing the line - 2020 style. CAP News, 12 Nov 2020 looks at three rulings that have played on or referenced current events, and considers how these cases crossed the line in terms of harm and offence rules
• And ‘Don’t Flub It Up!  CAP News. 12 Nov 2020. Explores how you can and can't use swear words 

Health/ safety

• Advertisements must not include material that is likely to condone or encourage behaviour that prejudices health or safety (BCAP Code, rule 4.4)
• Marketing communications, especially those addressed to or depicting a child, must not condone or encourage an unsafe practice (CAP code rule 4.5; see section 5: Children)
• Re above, this January 2022 ruling that found against Dairylea cheese depicting two girls eating while hanging upside down breached the above rule and others in section 5
• Radio only: Advertisements must not include sounds that are likely to create a safety hazard, for example, to those listening to the radio while driving (BCAP Code, rule 4.5)
• Television only: advertisements must not include visual effects or techniques that are likely to affect adversely members of the audience with photosensitive epilepsy. For further guidance, see Ofcom's Guidance Note for Licensees on Flashing Images and Regular Patterns in Television at: Section-2-Guidance-Notes.pdf (Annex 1)

Social responsibility

• Advertisements must not condone or encourage harmful discriminatory behaviour or treatment. Advertisements must not prejudice respect for human dignity (BCAP Code, rule 4.8)
• Television only: Animals must not be harmed or distressed as a result of the production of an advertisement (BCAP Code, rule 4.11)
• Advertisements must not condone or encourage behaviour grossly prejudicial to the protection of the environment (BCAP Code, rule 4.12)

Advertising guidance on social responsibility

https://www.asa.org.uk/advice-online/social-responsibility.html

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

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

Rulings search ‘Offense’

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

Some rulings

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.

https://www.asa.org.uk/rulings/paddy-power-plc-a15-304402.html

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)
https://www.asa.org.uk/rulings/camerons-brewery-ltd-and-trocaderos-south-shields-a14-269470.html

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:
https://www.asa.org.uk/rulings/kabuto-foods-ltd-a13-250344.html

The rules (see below for clauses)

CAP Code Section 11:
https://www.asa.org.uk/type/non_broadcast/code_section/11.html

BCAP Code Section 9:
https://www.asa.org.uk/type/broadcast/code_section/09.html

Key guidance 

CMA Green Claims Code September 2021

Carries statutory authority weight; see also  the CMA's Green Claims Checklist

It’s not that easy being ‘green’ – promoting good work without misleading by omission.

CAP News June 5, 2024

Environmental Claims Special Edition of the Insight Newsletter

CAP Insight June 5, 2023

Misleading environmental claims and social responsibility 

Highly significant June 2023 guidance; recent rulings, emphasis on social responsibility

Other guidance/ work

Ensuring your environmental claims are more than just hot air

CAP News June 2020
Updated environmental guidance: green disposal claims 

CAP News 28 November, 2023

 ASA website Our work on Climate Change and Environmental Claims

Internationally

WFA Planet Pledge April 2021 Global Guidance on Environmental Claims April 2022

ICC Advertising and Marketing Communications Code (EN 2024)

Chapter D for environmental claims 

​

The CAP and BCAP codes

• The basis of environmental claims must be clear. Unqualified claims could mislead if they omit significant information. (CAP Code, rule 11.1; BCAP Code, rule 9.2)
• The meaning of all terms used in marketing communications/ advertisements must be clear to consumers (CAP Code, rule 11.2; BCAP Code, rule 9.3); see October 2021 Alpro ruling here
• Absolute claims must be supported by a high level of substantiation. Comparative claims such as "greener" or "friendlier" can be justified, for example, if the advertised product provides a total environmental benefit over that of the marketer's previous product or competitor products and the basis of the comparison is clear (CAP Code, rule 11.3; BCAP Code, rule 9.4)
• Marketers must base environmental claims on the full life cycle of the advertised product, unless the marketing communication states otherwise, and must make clear the limits of the life cycle. If a general claim cannot be justified, a more limited claim about specific aspects of a product might be justifiable. Marketers must ensure claims that are based on only part of the advertised product's life cycle do not mislead consumers about the product's total environmental impact (CAP Code, rule 11.4; BCAP Code, rule 9.5)
• Marketers must not suggest that their claims are universally accepted if a significant division of informed or scientific opinion exists (CAP Code, rule 11.5; BCAP Code, rule 9.6)
• If a product has never had a demonstrably adverse effect on the environment, marketing communications must not imply that the formulation has changed to improve the product in the way claimed. Marketers may, however, claim that a product has always been designed in a way that omits an ingredient or process known to harm the environment (CAP Code, rule 11.6; BCAP Code, rule 9.7)
• Marketing communications/ advertisements must not mislead consumers about the environmental benefit that a product offers; for example, by highlighting the absence of an environmentally damaging ingredient if that ingredient is not usually found in competing products or by highlighting an environmental benefit that results from a legal obligation if competing products are subject to that legal obligation (CAP Code, rule 11.7; BCAP Code, rule 9.8)
• This rule must be read in conjunction with Directive 2010/30/EU and the Energy Information Regulations 2011 on labelling and standard product information of the consumption of energy and other resources by energy-related products and its subsequent delegated regulations. The Directive introduces an information and labelling framework whereby delegated regulations will detail which products need to contain an energy efficiency rating or fiche. The rule only applies to products which are subject to a delegated regulation

From 1 August 2017 Regulation EU 2017/1369 mandates a rescaling of existing energy labelling to provide more accurate information for consumers, including in advertising, where the energy efficiency class of a product and the range of classes available will need to be given. The existing delegated regulation continues to apply whilst that rescaling process is ongoing. (GRS note: The Regulation is retained legislation in the U.K. See also The Energy Information (Amendment) Regulations 2020). The rule:

• Marketing communications for specific energy-related products, subject to a delegated regulation, that include energy-related information or disclose price information, must include an indication of the product's energy efficiency class i.e. in the range A+++ to G.  (CAP Code, rule 11.8; BCAP Code, rule 9.9)

The following rule is subject to the same conditions as above, i.e. the rule must be read in conjunction with etc.

• Marketers must make product fiche (data sheet) information about products that fall under delegated regulations available to consumers before commitment (CAP Code, rule 11.9; BCAP Code, rule 9.10)

EC guidance

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 Consumer Protection from Unfair Trading Regulations 2008 (the CPRs)

• The CPRs implement Directive 2005/29/EC of the European Parliament concerning unfair business–to-consumer commercial practices, known as the UCPD and the seminal legislation that impacts marketing and advertising in Europe 
• The CPRs apply to commercial practices 'directly connected with the promotion, sale or supply of a product to consumers, including those before, during and after a contract is made' (Regulation 2). They provide a general prohibition of unfair commercial practices, with particular attention to commercial practices that are misleading and aggressive (Regulations 5, 6 and 7). The somehwat complex CPR structure can be found  in the OFT CPR Guidance document (see P.5). Relevant provisions, largely from Regulations 5 and 6, and Schedule I, are reflected in self-regulation misleadingness and promotional marketing rules in particular
• Schedule 1 of the CPRs provides a list of commercial practices that are prohibited in all circumstances.The prohibitions most relevant to marketing communications/ promotional marketing are here

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

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

Appendix 1 of the CAP Code and Appendix 3 of the BCAP Code provide useful overviews of the CPRs and BPRs

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

Legislation

Product Price Directive 98/6/EC: 
http://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX:31998L0006

UK implementation: Price Marking Order 2004
http://www.legislation.gov.uk/uksi/2004/102/made

Unfair Commercial Practices Directive 2005/29/EC
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:149:0022:0039:en:PDF

UK Implementation: The Consumer Protection from Unfair Trading Regulations 2008 (CPRs)
http://www.legislation.gov.uk/uksi/2008/1277/contents/made

Key case

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

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

The CPRs and price in advertising

• The most immediately relevant clauses related to the specific price that should be presented in advertising is from the CPRs’ Regulation 6, Misleading Omissions. The context in which a price in advertising is likely to appear is described as an ‘Invitation to Purchase’, meaning ‘a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of that commercial communication and thereby enables the consumer to make a purchase.’
• The information that must be included in an ‘invitation to Purchase’, and the related price requirements, are shown in the linked Regulation 6 file above, or in a note we have extracted here: 
  http://www.g-regs.com/downloads/UKGenI2PextractCPRs.pdf

Other pricing-related rules from the CPRs are referenced above under Pt. 2.1.

SECTION B CONTENT RULES

1. SELF-REGULATION; the 2024 ICC Code

1.1. General provisions

2. THE LAW 

2.1. General provisions from the Unfair Commercial Practices Directive  (UCPD)
2.2 Specific pricing measures 
2.2.1. Directive 98/6/EC - the Product Price Directive
2.2.2. Extracts from UCPD

2.3. The AVMS Directive 

2.4. The Empco Directive 

2.5. The Green Claims Directive ​
 

1.1 General provisions 

Basic principles (Art. 1)

• All marketing communications should be legal, decent, honest and truthful;
• All marketing communications should be prepared with a due sense of social, environmental and professional responsibility and should conform to the principles of fair competition, as generally accepted in business;
• No communication should be such as to impair public confidence in marketing.
• No communication should in the content and manner made undermine the public’s trust and confidence in marketing communications.

Social responsibility (Art. 2)

• Marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, disability or sexual orientation;
• Marketing communications should respect human dignity and should not incite or condone any form of discrimination, including that based upon ethnic or national origin, religion, gender, age, physical attributes, mental health, disability, or sexual orientation. Marketers are encouraged to be mindful of diversity and inclusion (see ICC guidance on diversity and inclusion in advertising, 2023) and seek to avoid stereotypes and objectification. Explanation Stereotyping is the practice of referring to or playing on an oversimplified and untrue notion of a particular group, sometimes employing archetypal traits. Objectification means representing people not as persons or individuals but as objects of sexual or other templating character.
• No marketing communication should be associated with corrupt practices (See ICC Rules on Combatting Corruption which defines in Part 1 “Corruption” or “Corrupt Practice(s)” as used in these rules shall include bribery, extortion or solicitation, trading in influence and laundering the proceeds of these practices) of any kind.
  Marketers should take due account of the ICC Rules on Combating Corruption and other ICC anti-corruption tools 
  ​

Marketing communications should not:

• without justifiable reason play on fear or exploit misfortune or suffering;
• appear to condone or incite violent, unlawful anti-social behavior or animal abuse;
• appear to encourage or condone irresponsible use or harmful behaviour;
• play on superstition;
• marketing communications should not appear to condone or encourage actions which contravene the law, self-regulatory codes or generally accepted standards concerning climate change, sustainable and environmentally responsible behaviour;
• they should respect the principles set out in Chapter D on environmental claims in marketing communications and be mindful of the ICC Framework for Responsible Environmental Marketing Communications

Decency​ (Art. 3)

• Marketing communications should not contain statements or audio or visual treatments which offend standards of decency currently prevailing in the country and culture concerned.
• Marketing communications should not contain anything which offends standards of decency currently prevailing in the country and culture concerned and strive to respect social norms and tradition;
• Marketing communications should not incite or condone hate speech by using elements associated to it, such as false testimonials or endorsements, conspiracy theories, or other means to circulate harmful content

Honesty (Art. 4)

• Marketing communications should be so framed as not to abuse the trust of consumers or exploit their lack of experience or knowledge;
• Relevant factors likely to affect consumers’ decisions should be communicated in such a way and at such a time that consumers can take them into account.
• Marketing communications should be structured in a way that does not take advantage of consumer trust or exploit their inexperience or limited understanding;
• Relevant factors that can affect consumers’ decisions should be communicated in a manner and at a time that allows them to consider them effectively;
• High-pressure marketing tactics which might be construed as harassment or hamper consumer choice, should not be used;
• Marketing communications should not abuse the trust of consumers by using deceptive practices or spreading disinformation using elements such as false testimonials or endorsements, conspiracy theories, such as bait and switch or clickbait. Nor should they knowingly support, engage in, facilitate or fund illegal activities. See ICC Statement on Misplaced Digital Ads.