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A. Overview

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SECTION A OVERVIEW

 

November 2022

 

Update 25 November 2022: Joint Ofcom-ICO statement on online safety and data protection

 

CMA Influencer guidance updated November 2022

 

The European Parliament Adopts New Sustainability Reporting Rules. Jones Day November 22, 2022 

Corporate Sustainability Reporting Directive (above) affects companies with 'substantial business activity in the EU.'

 

October 2022

 

The Financial Conduct Authority announced October 25, 2022 a consultation on sustainability labelling. Consultation here, closes Jan 25, 2023; helpful commentary here from Herbert Smith Freehills/ Lex

 

HSBC ruling October 19, 2022. Ad here

 

September 2022

 

22/9/22 Anti-obesity alliance lobbies PM Liz Truss over touted HFSS ad U-turn. (The Drum). 'The Obesity Health Alliance has penned an open letter warning against any move to renege on prior promises after a review of the government’s much-criticized obesity strategy in England was announced.'

 

May 2022 

 

Plan for digital Regulation  UK govt. 

 

14/5/22 Government delays restrictions on multibuy deals and advertising on TV and online. 'The restrictions banning HFSS adverts on TV before 9pm and paid-for adverts online will be paused for a year, meaning they come into force January 2024. This is due to a delay to the Health and Care Bill receiving Royal Assent, as well as a growing recognition that the industry needs more time to prepare.'

 

Proposals to reform UK data protection law were included in the Queen’s Speech May 10, 2022

See P.57 of the background briefing notes here 

 

Boots, PureGym and Dove to stop editing influencer campaigns. Drum story May 2022

Reference is to the Body Image bill, sponsored by Dr. Luke Evans, who presents it to the HoC here.

 

A Report from the DCMS Committee highlights the rapid expansion in influencer culture, where content creators build relationships with audiences on platforms such as YouTube, TikTok and Instagram, exerting both commercial and non-commercial influence.The Committee concludes that the growth in the market has exposed a number of regulatory gaps, particularly around advertising disclosure and protection for children, both as influencers and viewers, and calls on the Government to strengthen both employment law and advertising regulations. Press release here, report here.

 

April 2022

 

23/4/22. Big Tech companies to face new EU content rules. This is the news that the 'Trilogue' (consisting of representation from the European Commission, the Council of the European Union and the European Parliament) have reached agreement on the Digital Services Act, 'a landmark piece of legislation that aims to address illegal and harmful content by getting platforms to rapidly take it down.' The Council's press release is here

 

Tough new rules to curb broad appeal of gambling ads and better protect under-18s. CAP News 05 Apr 2022

Rules come into effect 1st October, 2022

 

March 2022

 

ASA pilot to enhance online transparency 24 March 2022

DCMS Online Advertising Programme consultation. Published 9 March 2022

One to watch - ASA weighs in on “Dark Patterns” Baker Mckenzie/ Lexology

 

February  2022

 

The ASA's Tackling racial and ethnic stereotyping in UK ads from February 2022 reports on research findings and other reviews and sets out plans for positive development

 

December 2021

 

Misleading environmental claims and social responsibility guidance of December 9, 2021 'consolidates the ASA's position'. 

December 2021 EASA update on the progress of the Digital Services Act is here
(We're aware that the UK has left the EU, but some UK users are responsible for pan-European campaigns)

December 2021 EASA update on the progress of the European Commission Beating Cancer Plan (BECA). The EC plan potentially impacts marketing/ advertising in both the Alcohol category and the Food and Beverages category in EU member states

 

September 2021

 

ASA adds TV personalities to non-disclosure webpage

 

The ASA added five former contestants from the reality TV programme, Love Island, to a dedicated non-disclosure webpage as part of continued action against influencers who fail to act transparently and who mislead their followers by not labelling ads in their social media posts.

 

August 2021

 

EU issues: an update on the progress of the Digital Services Act is here, on the Farm to Fork strategy (see below) here, and on 'Green transition' here. We are aware that the UK has left the EU, but UK-based agencies and advertisers responsible for multinational campaigns might like to know what's happening in Brussels

 

May 2021

 

From the U.K. Advertising Association: "Earlier today (11 May 2021) the Government’s legislative priorities for the coming session were laid out in the Queen’s Speech and it announced its intention to introduce a 9pm watershed on HFSS advertising on TV and a total ban online through the Health and Care Bill." More here

 

May 2021

 

ASA annual Report 2020 - Protecting young and vulnerable people (full Version) 29 Apr 2021

https://www.asa.org.uk/resource/annual-report-2020-full-version.html

 

April 2021

 

DCMS Committee to examine the power of influencers;  written submissions by Friday 7 May

 

March 2021

 

UK social media influencers warned over ad rules breaches

 

February/ March 2021

 

(While these entries immediately below are EU-related, we include them for those advertisers/ agencies who may be developing campaigns pan-Europe out of the U.K.)

 

Latest – and significant – news on the EU Farm to Fork strategy here; EU pages on the strategy here

 

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In the context of Europe’s ‘Beating Cancer Action Plan’, there will be some impact on self-regulation regarding HFSS food advertising, alcohol advertising and Audiovisual Media Service Directive (AVMDS) provisions on commercial communications, similar to the above ‘Farm to Fork’ implications. This relates to the new clauses introduced by the 2018/1808 Directive

 

 

The EU’s Green Consumption Pledge Initiative focuses on “non-food or mixed businesses with direct interaction with consumers”  and complements the EU Code of conduct for responsible business and marketing practices that will focus on the food sector. This is planned for June 2021

 

 

And the ‘green sweep’  - an EU review of websites that make environmental claims - finds that ‘in 42% of cases the claims were exaggerated, false or deceptive and could potentially qualify as unfair commercial practices under EU rules. ‘Greenwashing' has increased as consumers increasingly seek to buy environmentally sound products.’

 

 

 

Feb 2021. Protecting children online: ASA’s latest online monitoring results

 

The ASA published the findings from the third of its monitoring sweeps, as part of a year-long project to identify and tackle age-restricted ads appearing in children’s online media. Of note, this report revealed a significant fall in the number of HFSS ads appearing in children’s online media. Across the websites and channels monitored, there was a 74% fall in HFSS ads on the previous quarter

 

Feb 2021: Enforcement Notice on prescription-only weight loss products

 

CAP, jointly with the Medicines and Healthcare products Regulatory Agency, issued an Enforcement Notice to weight-loss treatment providers instructing them that they must not, directly or indirectly, promote prescription-only-medicines (POMs) to the public.

 

 

Jan 2021. Bringing body image into sharp focus

 

ASA Chief Executive Guy Parker wrote a blog on the focus by policy makers to identify the root causes of negative body image and confidence, particularly among young people, and the measures that can be taken to prevent harms. This issue has been rising up the public policy agenda over the last 12 months and it is a conversation the ASA is actively participating in

 

 

Updating the ad rules on alcohol. CAP News 21 Jan 2021

 

"The CAP and BCAP Codes have today been updated with minor amendments to the Alcohol rules. These amendments clarify the language used to describe the ABV thresholds at which drinks are subject to the alcohol rules and what strength a ‘low alcohol’ drink is considered to be. Some text from the ‘definitions’ preface to the Alcohol section has been moved into CAP rule 18.9 (BCAP rule 19.10) to aid clarity of understanding.

 

 

December 2020

 

The  ASA will be launching a call for evidence on body image in the New Year

 

 

Tackling racial and ethnic stereotyping in ads


 
The ASA has outlined the work it is carrying out to help it understand what more it needs to do to prevent harmful racial and ethnic stereotypes in advertising which could contribute to real-life racial and ethnic inequalities.

 

 

December 2020

 

https://www.bbc.co.uk/news/business-55215778

 

The age limit for playing the National Lottery is set to be raised from 16 to 18 from next October as the government moves to crackdown on gambling.

The government has pledged a "major and wide-ranging review" of the sector, which may include limits on online stakes and restrictions on advertising.

Betting firms could also be banned from sponsoring football shirts.

 

The Committee of Advertising Practice (CAP) has launched a public consultation on introducing new strengthened rules and guidance on gambling and lotteries advertising to better protect children, young people and vulnerable people.

 

 

CAP News 08 Oct 2020

Depicting COVID-19 safety measures in ads

 

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18 September 2020

ASA statement on coronavirus and depictions of safety regulations

The ASA Council has agreed on three guiding principles that they will use when assessing complaints about ads that depict scenes or behaviours, (for instance: crowds of people in close proximity to each other or people in shops not wearing face masks), which go against current government and scientific rules and guidelines that are aimed at limiting the spread of Covid-19 through the population.

 

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24 July 2020

The prime minister is set to announce new measures to curb obesity next week, and they are expected to include a ban on TV junk food adverts before 21:00. The measures are yet to be finalised but are also likely to include a ban on online ads for unhealthy foods, and limits on in-store promotions.

https://www.bbc.co.uk/news/uk-53522492

 

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29 June 2020

Democracy under threat from ‘pandemic of misinformation’ online, say Lords Committee
https://committees.parliament.uk/committee/407/democracy-and-digital-technologies-committee/news/147121/democracy-under-threat-from-pandemic-of-misinformation-online-say-lords-committee/
 

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ASA and CAP 2019 Annual Report  03 Jun 2020
 
https://www.asa.org.uk/resource/asa-and-cap-2019-annual-report.html

 

"To many, including those in ad land, it doesn’t make sense that ads for commercial products by businesses large and small throughout the UK should be held to greater account than ads that might swing votes and flip seats. We at the ASA agree. That’s why we’re stating clearly that we think claims in political advertising should be regulated. But while that’s straightforward in theory, it’s complex in practice."
 

The ASA published its latest report on children's exposure to TV ads for alcohol and gambling  

Its report provides exposure figures for 2019.

 

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Gambling 

 

Tuesday 30th June, the All Party Political Group on Gambling Related Harm published their final report in the 'Online Gambling Harm Inquiry'. One of the key recommendations of the report is 'a ban on all gambling advertising'.

 

​​​​​​​Gambling advertising and ‘lockdown’
ASA and CAP News 07 Apr 2020
 
 
The ASA issued a warning to gambling operators to pay even more attention to their responsibilities under the Codes during these uncertain times
 
CAP and BCAP equality consultations
 
CAP and BCAP published the outcome of  consultations on changes proposed as a result of the Equality Act: here (for CAP) and here (for BCAP). In summary, these are changes to the general rule on offence in both Codes which update the list of protected characteristics the ASA will take into account in judging whether an ad might cause serious or widespread offence

 

 

There's more 

 

Two other changes see the rule on targeting in section 21 of the CAP Code (21.5), which had previously treated media of appeal to men and women differently in terms of the minimum age of appeal, now prohibits marketing communications for rolling papers and filters in any non-broadcast media with an audience (men or women) where 25% or more are under 18.
 
In the BCAP Code, there was a scheduling restriction preventing sanitary products from being advertised in or adjacent to programmes of particular appeal to under 10s. That rule has been removed
 
 
 
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General

SECTION A OVERVIEW

 

Updates since Jan 2022

 

New ASA sanctions against Influencers Jan 2022

Ruling against Oatly milk January 26, 2022

And Dairylea (link to news) January 2022

Six top tips to avoid misleading ads Jan 2022

Tackling racial and ethnic stereotyping in UK ads. Feb 2022

IAB TCF framework and GDPR. February 2022

TV - Superimposed text guidance February 2022

Boohoo case February 2022. Ad here

Innocent Drinks case here February 2022

ASA weighs in on 'Dark Patterns' March 2022

DCMS Online Advertising consultation March 2022

International Women’s Day CAP News March 2022

ASA pilot to enhance online transparency. March 2022

International Day for the Elimination of Racial Discrimination
CAP News 24 March 2022 (above)

ASA enforcement notice cryptocurrencies March 2022

Google 'Recognition of advertising' ruling April 2022 

Online Safety Bill summary April 2022

Unilever and children April 2022

Osborne Clarke Regulatory Overview April 28, 2022

DCMS report on Influencer culture May 9, 2022

Substantiation 101 CAP News 5 May 2022

Celebrating the Queen's Jubilee: considerations for brands

Above from Gowling WLG/ Mondaq May 2022

Updated ISBA Influencer Code May 2022

ASA 2021 Annual Report May 2022

Face recognition. CAP News May 2022

Environmental claims, the Advertising Codes, and You.

Sainsburys ruling 'Try your halfest' June 8, 2022. Spot here

Tesco Plant Chef claims same date complaint upheld

ASA statement on World Environment Day

Data Protection Reform Osborne Clarke/Lex June 28, 2022 

Above following govt. consultation response

Online safety and competition in digital markets:

a joint statement CMA/ Ofcom 14 July, 2022

Samsung ruling July 2022; commercial here

Nudity in ads. CAP News 28 July, 2022

Regulatory Outlook July 2022 Osborne Clarke/Lex 

Data Protection update July 2022 Stephenson Harwood

What will the proposed changes mean in practice?

Baker McKenzie/ Lex August 2022

Unilever/ Persil ruling August 31, 2022

ASA Q3 rulings Taylor Wessing October 2022

HSBC ruling October 19, 2022. Ad here

FCA sustainability consultation; closes Jan 25, 2023

No ‘safe space’ for green claims. DWF LLP 11/22

DCMS Online Advertising Programme Final Report

CMA Influencer guidance updated November 2022

ICO highlights new strategic approach to regulatory action

 

What's Coming Up On The ASA's Horizon For 2022? Here Are The Top 10 Developments To Watch Out For...

The above from GALA/ Mondaq/ Lewis Silkin, the estimable Brinsley Dresden. May 2022

 

THE KEY 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 the BCAP Code which applies to ‘all advertisements (including teleshopping, content on self-promotional television channels, television text and interactive TV ads) and programme sponsorship credits on radio and television services licensed by Ofcom’. There is significant overlap of rules between the two codes; we largely deal with them together in this database. See CAP Bitesize August 2022 for 'a series of videos to help businesses get their ads right, by setting out the principles behind the advertising rules in an easily digestible format.'

 

INFLUENCERS/ RECOGNITION OF ADVERTISING

 

New (November 2022) guidance from the CMA: Social media users set to benefit from new hidden advertising protections

Re above, somewhat acerbic commentary from GALA here;  guide for brands here, for content creators here 

May 9, 2022. DCMS release their report Influencer culture: Lights, camera, inaction? Press release here, August 2022 commentary from RPC/ Lex here

Response from the ASA/ CMA. 'Thanks, but no thanks.' Osborne Clarke/ Lex August 2022. Govt. response here Sept 2022

UK Government Responds To DCMS Committee Report On Influencer Culture 

GALA/ Lewis Silkin/ Mondaq September 30, 2022

 

Section 2 of the CAP Code covers recognition of marketing communications, and the BCAP Code Section 2 does the same in broadcast. There’s a lot of guidance from CAP in this territory; most of it can be found here; a key piece is Influencers' Guide to making clear that ads are ads from the CMA/ CAP February 2020 and a ‘Special Edition Influencer Marketing Insight' includes a flow chart, cheat sheet and affiliate marketing infographic etc. Running prize promotions on social media is a resource page/ checklist for influencers and brands issued October 2021. Engaging Social Media Influencers, a September 2021 piece from Brodies LLP via Lexology is helpful on how to manage Influencer Marketing and the CMA got into the guidance act with Social media endorsements: being transparent with your followers, published 23 January 2019. ISBA's Influencer Marketing Code of Conduct was announced September 2021 and updated May 2022. Influencers can be animals - Fur warning: the rules that apply to pet influencers CAP News, 08 Sep 2022. Some ASA rulings of note are: 

 

April 2020 ruling on Asos/ Zoe Sugg is here 

And news on the ASA's review of Influencers here

Followed in March 2021 by:

Influencing Responsibly - Make clear upfront when ads are ads

August 2021 ruling re Emma Louise Connolly on Instagram

October 2021 ruling on Gabby Allen/ Primark

August 2022 ruling on Molly Mae/ Prettylittlething

 

The ASA now include a page on their website which identifies influencers who have failed to comply with rulings/ warnings and

ASA escalates sanctions against influencers who repeatedly break the rules. ASA News 18 Jan 2022

ASA News May 2022 Using AI to help tackle unlabelled influencer advertising

Ogilvy will no longer work with influencers who edit their bodies or faces for ads. Drum story April 2022

The Influencer Marketing Trade Body (IMTB) launch regulatory advice service Reassure 11 July 2022

 

Legislation (influencers and generally)

 

Para 11, Schedule 1 of the CPRs provides that a commercial practice ‘in all circumstances considered unfair’ is ‘Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial)’. More broadly, Regulation 6 (1) d of Part 2 of the CPRs sets out a misleading omission when ‘a commercial practice fails to identify its commercial intent, unless this is already apparent from the context.’ More broadly still, it is this legislation, transposed from the UCPD 2005/29/EC, that is the core of misleadingness regulation around Europe and including the UK for the time being (the CPRs are retained legislation). UK consumer law reform: a watershed moment? from Travers Smith LLP/ Lexology December 15, 2021 provides some valuable background/ insight to the direction of travel of UK consumer protection regulation and UK to legislate to empower Digital Markets Unit and to protect consumers from Osborne Clarke November 2022 reports on govt. plans to regulate 'powerful digital firms'; while not advertising-specific, these developments are important context. The UK Self-Regulatory position closely observes the statutory framework and the ASA is the 'established means' of advertising regulation; we therefore don't tend to dwell on legislation, albeit in Channel rules in particular it's best to know the law as well as the ASA's requirements. As the draft legislation brings online financial scam ads into its scope, the Online Safety Bill may also impact marketer's and agencies' corporate lives. There's a good April 2022 summary here from Morrison & Foerster LLP/ Lexology.

 

GENDER STEREOTYPES

 

International Women’s Day 2022 CAP News March 10, covers roles and characteristics, sexual objectification and body image, with multiple references to relevant cases and other associated guidance. International Men's Day November 2021 was treated equally.

 

The rule states: [Advertisements] must not include gender stereotypes that are likely to cause harm, or serious or widespread offence. Full guidance from December 2018 is here; Advice online from August 2020 is here. The rule came into force on 14 June 2019. From the guidance: ads may feature people undertaking gender-stereotypical roles e.g. a woman cleaning the house or a man doing DIY, or displaying gender-stereotypical characteristics e.g. a man being assertive or a woman being sensitive to others’ needs, but they should take care to avoid suggesting that stereotypical roles or characteristics are:

 

Always uniquely associated with one gender

The only options available to one gender

Never carried out or displayed by another gender

 

From CAP’s Insight piece 8/3/2019: ‘The ASA already takes a tough position on sexualisation, objectification and unhealthily-thin body image in ads. Where these cases have previously been considered under rules about offence and social responsibility, they could also fall under the new rule.’ The first rulings happened 14/8/19; both VW E-Golf and Philadelphia Cheese were found to have breached the rules, but the Buxton water complaint on the same grounds was not upheld. There was some controversy around the VW decision in particular; trade press story here. Ruling April 2021: a paid-for Instagram post from Babyboo Fashion was banned for being likely to cause serious or widespread offence by objectifying women; case here. And CAP News in February 2021 featured Subjectively speaking: Sexual objectification. On body image, a May 2021 ruling found against a Max Mara ad here (extract of image) and - back to stereotyping - this is an interesting September 2021 ASA ruling that did not uphold a complaint against a Strive Footwear commercial. A commercial for Match.com fared less well in this October 2022 ASA ruling. This Advertising law and a spotlight on the “S” (“Social”) in ESG from DLA Piper November 7, 2022 covers the 'social' ground, including gender stereotypes / objectification of women and body image.

 

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. Misleadingness in law is (largely) from Regulation 5 of the CPRs, which covers misleading actions and Regulation 6, which deals with misleading omissions. Comparative advertising in law is provided for under The Business Protection from Misleading Marketing Regulations 2008, Regulation 4, in part a transposition of the Misleading and Comparative Advertising Directive 2006 /114/EC. This piece from Taylor Wessing/ Lexology December 13, 2021 Advertising and influencers - 2021 highlights goes well beyond the inference of its title, rounding up much of what happened/ is happening in Self-Regulatory territory in 2021: Green claims, harm and protected characteristics, VSPs, HFSS etc. Also see Q&A: misleading advertising practices in United Kingdom from Herbert Smith Freehills LLP/ Lex March 2022.

 

SOCIAL RESPONSIBILITY

 

The key sections in the CAP Code are Compliance Section 1 and Harm and Offense Section 4. The same sections apply in the BCAP Code. The CAP Code clause 1.3 Clause Marketing communications must be prepared with a sense of responsibility to consumers and to society casts a pretty wide net and can be deployed for example when ruling on portrayals of 'sexuality'; this December 2021 Diesel clothing adjudication is an example - we think the commercial is this one, but it may have been edited subsequent to the ASA council decision. In the same context, in this February 2022 Boohoo case a complaint about images on their website was upheld; see also this Drum story on the Adidas sports bra case May 2022. Legislation is from the Ofcom Broadcasting Code Appendix 2, transposing the AVMS Directive 2010/13/EU, applicable to broadcast and on-demand. Audiovisual commercial communications shall not: (i) prejudice respect for human dignity (ii) include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation (iii) encourage behaviour prejudicial to health or safety (non-exhaustive). In October 2021, CAP issued Championing diversity during Black History Month, which includes a number of instructive rulings and 'a few best practices that can go a long way towards helping to deliver a campaign that champions racial diversity in a positive way.' Extending this topic, Tackling racial and ethnic stereotyping in UK ads from February 2022 reports on research findings and other reviews and sets out plans for positive development. Referring to persons with disabilities in ads from CAP News 09 Dec 2021 covers inter alia negative stereotypes and trivialisation; CAP and BCAP closed August 24 2021 a consultation on harm and protected characteristics.

 

PRICING
Pricing in advertising is often a source of complaint and sometimes competitor litigation. It’s best to check prices in ads, especially new ads, with legal advisors

 

CAP Code Section 3 (Misleading advertising) carries several provisions under Pricing, and the BCAP Code essentially covers the same territory, also under Section 3. Price statements in marcoms/ advertisements should also take account of the Guidance for Traders on Pricing Practices from the Chartered Trading Standards Institute, under the auspices of DBEIS; the CAP Advertising guidance Prices – General is also helpful, and from May 2022 Make sure the price is right: using reference pricing in ads covers ground such as ‘strikethrough’ prices and ‘was-now’. Following the self-regulatory provisions should be sufficient, but it is as well to be aware of the statutory requirements, as this can be sensitive territory. The CPRs require under Regulation 6 (misleading omissions) that if advertising constitutes an ‘invitation to purchase’, Definition A commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchasethat with regard to price, ‘either (i) the price, including any taxes (italics ours); or (ii) where the nature of the product is such that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, must be provided. Another important influence in this context is the Product Price Directive, with a UK transposition of the Price Marking Order 2004. Details of various forms of price claims are in our Content Section B. As pricing can be particularly sensitive commercially, it may be best to seek legal advice before commitment. Finally, from CAP News May 2020 To include or not to include? - VAT in stated prices; includes this best practice guide and in September 2020 CAP News provided At the right price: making price comparisons with previous prices.

 

ENVIRONMENT

 

This is a hot topic; there's a lot going on in the regulatory world in order to reflect governmental and commercial activities. The CAP and BCAP codes anyway devote whole sections to the subject: 11 and 9 respectively, set out in our Content Section B below, and provide guidance in ‘Environmental Claims: General, and more recently (June 2020) ‘Ensuring your environmental claims are more than just hot air’ which provides a number of rulings in relation to substantiation and the holding of quality evidence as does, more recently still, Ensure your recycling claims aren’t a load of rubbish of 30th September 2021. According to a 23rd September 2021 ASA statement on the regulation of environmental claims, 'later this year CAP will issue advertising guidance to industry'. This statement is hot on the heels of the CMA Green claims guidance published September 20th 2021; the CAP guidance will 'complement' the CMA's work, which was developed in close consultation with ASA/CAP. Commentary on the CMA guidance from Macfarlanes/ Lexology here and from Boodle Hatfield/ Lexology December 2021 Businesses have until January 2022 to ensure their environmental claims comply with the law. On 29 July 2022, the government announced that the CMA are investigating the fashion industry, specifically Asos, Boohoo and George/ Asda. The Ofcom Broadcasting Code Article 3e C (iv) of Appendix 2, from the AVMSD, prohibits in broadcast commercial communications the encouragement of ‘behaviour grossly prejudicial to the protection of the environment’. How to comply with the rules from Taylor Wessing/ Lexology Feb 2022 re-caps the rules and provides some high-profile adjudications.

 

Some commentary, rulings and guidance

 

 

 SEXUALISATION

 

CAP and BCAP’s stricter rules prohibiting the sexual portrayal or sexual representation of under-18s (and those who appear to be under 18) in advertising came into force January 2018. The new rules provide that advertising must not portray or represent anyone who is, or seems to be, under 18 in a sexual way. They are in full here​. CAP subsequently issued How to ensure your ad doesn’t break our new rules on sexualisation, setting out the key points to ensure compliance with the rules. For further advice, see CAP’s Advice Sexual Orientation and Gender Identity and Use of Stereotypes.

 

GDPR AND PRIVACY AND BREXIT

 

Privacy issues should be reviewed with specialist advisors

 

Proposals to reform UK data protection law were included in the Queen’s Speech May 10, 2022

See P.57 of the background briefing notes here 

 

The collection and use of personal data for marketing purposes is regulated by the new Data Protection Act 2018, which accompanies the General Data Protection Regulation GDPR. The UK Data Protection Authority the ICO provide important and valuable advice in all areas of Privacy. Their GDPR guide is here and the link here provides access to the ICO interactive tool that will help small and medium-sized businesses with personal data within the EEA. The EU Commission announced in June that adequacy decisions for the UK have been approved. This meant data could continue to flow without friction to the UK from the EU and EEA (ICO). Government response to Data: a new direction June 2022 here. Interesting commentary from Taylor Wessing via Lexology here and Osborne Clarke/ Lex June 2022 comment on reform proposals following the Government's response to the consultation. DCMS Announcement: Replacing the UK GDPR brings us up to speed as at October 10, 2022; the article from DWL LLP/ Lex points out the confusion the proposal might create with the proposed Data Protection and Digital Information Bill. Finally, for those in adtech, this Data protection and privacy expectations for online advertising proposals of 25 November 2021 opinion from the ICO might be valuable reading, together with this commentary from Reed Smith/ Lexology. Meanwhile, some implications from the EU's Digital Services Act are set out here by Lewis Silkin/ Lex October 21, 2022 and New Digital Regulators on the 2023 Horizon from RPC/ Lex shows some distinctions between the EU and UK regulatory approaches.

 

CAP DATA

 

In November 2018, CAP updated and overhauled their Section 10 in the GDPR context and renamed it 'Use of data for marketing', reflecting their focus on marketing-associated issues versus ‘pure’ database activities. See Five top tips on our new rules on the use of data for marketing from November 2018 and from January 2022 CAP News Four key tips on using personal data for marketing. Also relevant is the IAB Transparency and Consent Framework, albeit see story above. On the issue of Privacy rules in the context of featuring celebrities or members of the public, CAP issued in July 2020 A guide to the privacy rules.

 

CHANNEL RULES

 

Channel, i.e. placement, rules are shown by medium in our Section C below. The BCAP (broadcasting) Code Section 32 includes scheduling rules for sensitive sectors such as Alcohol and Gambling. This August 2021 piece from Simmons & Simmons LLP In brief: media law and regulation in United Kingdom is a valuable covering of the regulatory ground in U.K. media. A recent development is the Directive 2018/1808 amends to the AVMS Directive extending scope online and delivering in particular new rules to Video sharing platforms (VSPs), which include the identification of commercial communications where those exist. The UK legislation is here, Ofcom provider guidance as at December 2021 is here and a helpful piece from Taylor Wessing/ Lexology in February 2022 is Obligations on video-sharing platforms to regulate advertising.
 

 

 

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International

SECTION A OVERVIEW

 

Updates since April 2021
 

WFA Planet Pledge April 2021 

Diversity etc. June 2021

The EU Pledge, enhanced July 2021 

IAB Europe Guide to Contextual Advertising July 2021

EASA Cross Border complaints Sept 2021                               

WHO Alcohol consultation October 2021

CJEU judgement re Inbox November 2021

Trade Desk/ UID GDPR issues Nov 2021

UCPD guidance December 2021

ICAS Factbook and database Dec 2021

IAB Guide to Native Advertising Dec 2021

The rise of virtual influencers January 2022

IAA - Evolving Self-Regulation. Jan 2022

Chrome Topics January 2022

IAB TCF Framework Violates GDPR Feb 2022

Google's Privacy-Safe Growth Playbook March 2022

Regulatory Outlook. March 2022. Osborne Clarke/ Lex

WFA Global Guidance on Environmental Claims April 2022

The AANA Code of Ethics (Australia) February 2021

Advertising Regulatory Board: a major development 

Above South Africa May 2022

Misleading advertising practices in South Africa. March 25, 2022

Above from Herbert Smith Freehills LLP

EC Better Internet for Children strategy May 2022

EDAA on implications of the DSA on targeting May 2022 

DMA, data monetization digital advertising: 3 reasons to care

Above from Dentons/ Lex May 2022

DLA Piper Global Influencer guide 

EC Disinformation Code strengthened June 2022

Mercedes 'greenwashing' case, August 2022

New global network for online harm November 2022

Coke's aspirational claims are not actionable

Frankfurt Kurnit Klein & Selz PC November 20, 2022

 

 

RECENT ISSUES

 

General

 

Chambers Global Practice Guide Advertising & Marketing 2022

Covers Belgium, Bosnia and Herzegovina, Brazil, Canada, China, Japan, Mexico, Switzerland

GALA Releases Videos from "Global Advertising in an Age of Crisis and Change" Conference  28 Oct, 2022

The 7 legislative developments that will disrupt the global advertising ecosystemThe Drum U.K. October 2022

 DLA Piper's Advertising Laws of the World August 31, 2022

 Avoid an advertising red card: Middle Eastern considerations for your Qatar ‘22 campaign CMS Cameron McKenna Nabarro Olswang LLP/ Lex Sept 2022

 

Environmental

 

The European Parliament Adopts New Sustainability Reporting Rules. Jones Day November 22, 2022 

Corporate Sustainability Reporting Directive (above) affects companies with 'substantial business activity in the EU.'

Coke's aspirational claims are not actionable. Frankfurt Kurnit Klein & Selz PC November 20, 2022 (U.S.)

The EU Corporate Sustainability Due Diligence Directive

Rahman Ravelli November 16, 2022 

Greenwashing: Exploring the risks of misleading environmental marketing in China, Canada, France, Singapore and the UK. Gowling WLG, Sept 2022

 Advertising around green and sustainability claims. Baker McKenzie/ Lex August 2022. EU, US, UK

The Global ESG Regulatory Framework toughens up White and Case July 2022

 Commission proposes new consumer rights and a ban on greenwashing April 2022; Directive proposal here

Related to the above, the Empowering Consumers in the Green Transition initiative, tabled on 30 March 2022 by the European Commission, remains open for feedback until 29 May

April 2022. WFA issues Global Guidance on Environmental Claims

 

Digital/ privacy

 

 New Digital Regulators on the 2023 Horizon from RPC/ Lex shows some disticnctions between the EU and UK regulatory approaches. December 2022

Data protection update Stephenson Harwood LLP/ Lex. EU, France, Global, Ireland, Netherlands, South Korea, UK, USA. December 2022

The Digital Markets & Digital Services double Act take the stage. GALA/ Lex. October 28, 2022. Simple and broad explanation with a nod to the U.K. More in-depth view of the DSA from the same firm here and this November 2022 piece from Osborne Clarke/ Lex includes a summary of the advertising impact of the DSA

  The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation on the advertising industry

Google says cookie here to stay until 2024 July 27, 2022 

European parliament adopts Digital Services Act and Digital Markets Act CMS Cameron McKenna Nabarro Olswang LLP July 2022

2022 Strengthened Code of Practice on Disinformation from the EC. Signatories commit to prevent misuse of advertising systems to disseminate disinformation. EACA, the European agency association, a signatory

 Incoming EU data and digital legislation from Taylor Wessing/ Lex; IMCO newsletter, both May 2022

 23/4/22. The 'Trilogue' (European Commission, Council and Parliament) agreement on the Digital Services Act, 'a landmark piece of legislation that aims to address illegal and harmful content by getting platforms to rapidly take it down.' Council's press release is here  

Data Protection update March 2022 Stephenson Harwood LLP/ Lexology. Includes reference to US-EU agreement of principles for data transfer mechanism to replace Privacy Shield

ePrivacy Regulation: EU Council agrees on the draft. Härting Rechtsanwälte/ Lex. March 2022

 

Children

 

From the EC 5 key principles of fair advertising to children. Commentary from Covington & Burling here June 23, 2022
 The new strategy for a better Internet for children (BIK+ strategy) was adopted on 11 May 2022 by the European Commission. Press release here, full text of the Communication here

 

 

ISSUES TO LOOK OUT FOR IN 2022 
 
A February 2022 global/ USA perspective 
►The IMCO committee (Internal Market and Consumer Protection) published in February 2022 A Study on Influencer Marketing. This covers some important legal and self-regulatory ground and is one of several signs that the EU is looking to tackle Influencer marketing
► Some environmental rulings in the U.K., Sweden and the U.S. as this is and will remain a high profile issue internationally; see also Greenwashing: Exploring the risks of misleading environmental marketing in the UK, Canada, France and Singapore from Gowling WLG/ Lex April 2022
 

SOME OTHER INTERNATIONAL NEWS

 

News items before December 2021 are here

 

February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). News story here (EN). The Dutch DPA have subsequently advised companies to to stop using TCF

 

Chrome introduced a new Privacy Sandbox proposal to support interest-based advertising called the Topics API. This new API replaces the previous FLoC proposal. Topics are ‘recognisable interest categories that represent the user's top interests, based on their recent browsing history’. The technique can be used to personalise ads, without sharing specific sites the user has visited. More information here

 

IAB Europe's December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.' 

December 2021 ICAS published the fourth edition of its Global SRO Database and Factbook

December 2021 EASA update on the progress of the EC Beating cancer plan (BECA), which potentially impacts marketing/ advertising in both the Alcohol and Food categories 

In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version

This Digital policy and legislation - 2021 roundup from Taylor Wessing/ Lexology December 2021 is a helpful piece on status in digital regulation in Europe and the UK

 

EC developments  

 

The Digital Services Act package

 EU pages on the Farm to Fork strategy here

EU Code of Conduct on Responsible Food business and Marketing Practices July 2021

 This from the EDAA is a helpful and simple explanation of the DSA

The EU’s Green Consumption Pledge Initiative focuses on 'non-food or mixed businesses with direct interaction with consumers'

 

THE OMNIBUS DIRECTIVE

 

Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019. This directive sets out some new information requirements related to search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 28, 2022. There have been several delays.
https://eur-lex.europa.eu/eli/dir/2019/2161/oj

 

1. SELF-REGULATION
1.1 The ICC Code
 
This 'International' sector provides largely Self-Regulatory rules that apply across several jurisdictions/ countries, so the content is the same under each country and product sector. For the time being, we are largely interpreting 'International' as Europe, though as the service expands, so will this section. The rules are primarily from the ICC, the International Chamber of Commerce, whose Advertising and Marketing Communications Code ('the Code'), the most recent version of which was announced in September 2018, underpins much of Self-Regulation worldwide.
 
Most countries feature national advertising Self-Regulatory codes which draw their main principles from the ICC Code, whilst a number of countries apply its provisions directlly - Belgium, Finland and Sweden, for example - so it can be regarded as a solid reflection of the regulatory picture across Europe and beyond. It would be very unlikely that any ICC rule would significantly differ from a specific country or sector clause addressing the same issue, but the latter may have more nuance or cultural context and will, of course, prevail as the principal source of regulation. So you can use these ICC rules in two ways: as a sound 'first pass' if you want a general picture of what you can or can't say across a number of countries, or as a surrogate for, and access to, countries that we don't currently cover and where rules may be inaccessible. The ICC provide a 'gateway' to Codes around the world, as do ICAS, the International Council for Advertising Self-Regulation. Translation of the code into eleven languages is here.
 
1.2 Guidance and EASA
 
Where the ICC is the principal source for 'umbrella' rules, another important source, in this case of Advice and Good Practice, is EASA, the European Advertising Standards Alliance, which describes itself as the 'single authoritative voice on advertising self-regulation issues in Europe'. EASA's Best Practice Recommendations (BPRs) are valuable guidance on, for example, the distinction between Paid and Unpaid communications. These documents are placed and linked in relevant channels within the text in each country.
 
1.3 Structure and scope of the ICC Code

 

The Code is structured in two main sections: General Provisions and Chapters. General Provisions set out fundamental principles and other broad concepts that apply to all marketing in all media. Code Chapters apply to specific marketing areas, including Sales Promotions (A), Sponsorship (B), Direct Marketing and Digital Marketing Communications (C), and Environmental Claims in Marketing Communications (D). The Code 'should also be read in conjunction with other current ICC codes, principles and framework interpretations in the area of marketing and advertising':


ICC Guide for Responsible Mobile Marketing Communications

Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications (2021)

ICC Framework for Responsible Food and Beverage Marketing Communication

ICC International Code of Direct Selling

 

All the individual rules themselves are set out in the following Content Section B and Channel Section C

 

Children

 

  • Article 18 of the General Provisions of the ICC Code covers children and teens at some length. Additionally, Article C7 from the Chapter Digital Marketing Communications addresses Marketing communications and children
  • Also worthy of note is the International Consumer Protection Enforcement Network (ICPEN), a network of consumer protection agencies from over 60 countries, who publish Best Practice Principles for Marketing Practices Directed Towards Children Online (June 2020) 
  • On the home page of this website, you'll find a complete Children's sector with the rules spelt out country by country 

 

1.4 Sector and channel rules 

 

The rules are both 'horizontal', i.e. they apply across product sectors, and the ICC also publish 'vertical' sector-specific framework rules such as those for Alcohol, or Food and Beverages (as linked above). While these rules are referenced in the sections that follow, we don't extract them in full as these product sectors are covered by specific databases on this website. These sector rules in particular need to be read with a) the general rules that apply to all product sectors and b) the specific legislation and Self-Regulation that frequently surrounds regulation-sensitive sectors. Channel rules from the ICC Code, such as those for OBA, are shown within the relevant sub-heads under our Channel Section C, together with the applicable European legislation.

 

2. THE LAW
European Regulations and Directives

 

 
We draw extensively on European Directives and their national implementation in the Sector and General rules shown elsewhere on this website. In this international context, we show only the most immediately relevant Directives and a brief extract of their rules, together with links to EU Regulations which apply directly in member states. It should not be assumed that Directives are always implemented to the letter, but providing them together in one place at least allows a broad understanding of the influences of European legislation. EU Regulations are significant in the Food sector of those we cover currently, for example, and it's important at least to be aware of them, albeit rules are reflected in the Self-Regulatory measures that remain the most important influence in advertising regulation in Europe and elsewhere. A valuable June 2021 piece from Simmons and Simmons/ Lexology Media law and regulation in European Union focuses largely on the AVMS Directive and its amendment by Directive 2018/1808.

 

The issue with European rules is that it can be difficult to understand which regulation applies to which marketing technique or process, especially as some Directives apply to several marketing tools. The table below provides an overview; the marcoms-relevant rules are set out in Content Section B and Channel Section C, as applicable.
 
 
European Directives in marketing

 

Issue or Channel Key European legislation and clause
Cookies
The EU ‘Cookies Directive’ 2009/136/EC:
articles 5 and 7, which amended the E-Privacy Directive 2002/58/EC:
Electronic coms. Consent and Information 
Directive 2002/58/EC on privacy and electronic communications:
Articles 5 (3) and 13 
E-commerce; related electronic communications
Directive on electronic commerce 2000/31/EC of 8 June 2000 on certain legal aspects of information society services: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000L0031:en:HTML
Articles 5 and 6
Marketing Communications
Directive 2005/29/EC on unfair business-to-consumer commercial practices 
Articles 6, 7, 14 (amendments re comparative advertising), Annex I
December 2021 Commission guidance 
Audiovisual media 

Directive 2010/13/EU concerning the provision of audiovisual media services (Audiovisual Media Services Directive; consolidated version)
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02010L0013-20181218

Amended by Directive 2018/1808, which extended some rules into the digital landscape and especially video-sharing platforms 

https://eur-lex.europa.eu/eli/dir/2018/1808/oj

Data Processing 

Regulation 2016/679/EU on the processing of personal data (GDPR) 

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

 

 

Sections B and C below sets out the rules that are relevant to marketing communications from the Directives above, together with the Self-Regulatory measures referenced under Point 1 in this overview.

 

 

 

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Read more

B. Content Rules

Sector

General

SECTION B CONTENT RULES

 

 

This section is longer than most. To help navigate it, some text is anchored' and linked to respective headings immediately below
We don't reproduce the codes, just the most significant rules under the headings below, CAP and BCAP shown together  

 

 

  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

 

  1. LEGISLATION IN ADVERTISING (Content)

 

2.1. CPRs and BPRs/ Unfair Commercial Practices Directive

2.2. Ofcom Broadcasting Code/ AVMS Directive

2.3. Pricing

 

 

1. SELF-REGULATION

 

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

 

 

Misleading omissions

 

  • 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).

 

 

 

  • 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)
 

 

1.2.6. Pricing 

 

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)

 

Key points from CAP Advice/ Advertising Guidance Prices – General 
(And two rulings)

 

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

 

1.2.7. Free

 

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)

 

 

Guidance

 

  • 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

 

 

 

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 2020

 

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)

 

Here is CAP’s ‘Quick Guide to Comparative advertising’:

https://www.asa.org.uk/news/a-quick-guide-to-comparative-advertising.html

 

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.

 

Imitation and denigration

 

  • 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

 

1.3. Section 4: Harm and offence
Amends April 2020 incorporated 

 

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

 

 

 

 

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 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

 

2.2 Ofcom Broadcasting Code/ AVMS Directive

 

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

 

2.3. Pricing

 

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.

 

 

 

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

International

SECTION B CONTENT RULES

 

 

This section is longer than most. To help navigate it, some text is 'anchored' and linked to respective headings immediately below

 

 

  1. SELF-REGULATION; the ICC Code
     

1.1. General provisions

Includes key legislation and ICC framework
Includes key legislation and ICC framework
 
  1. 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

2.2.3. Extracts from the ICC Code related to pricing

2.2.4. The AVMS Directive 


 

1. SELF-REGULATION; THE ICC CODE

 

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 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

 

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 not without justifiable reason play on fear or exploit misfortune or suffering
  • Marketing communications should not appear to condone or incite violent, unlawful or anti-social behavior
  • Marketing communications should not play on superstition
 

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
 

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
 

 

Truthfulness (Art. 5)

 

  • Marketing communications should be truthful and not misleading
  • Marketing communications should not contain any statement, claim or audio or visual treatment which, directly or by implication, omission, ambiguity or exaggeration, is likely to mislead the consumer, in particular, but not exclusively, with regard to:
     
    • characteristics of the product which are material, i.e. likely to influence the consumer’s choice, such as: nature, composition, method and date of manufacture, range of use, efficiency and performance, quantity, commercial or geographical origin or environmental impact
    • the value of the product and the total price to be paid by the consumer
    • terms for delivery, exchange, return, repair and maintenance
    • terms of guarantee
    • copyright and industrial property rights such as patents, trade marks, designs and models and trade names
    • compliance with standards
    • official recognition or approval, awards such as medals, prizes and diplomas
    • the extent of benefits for charitable causes

 

Substantiation (Art. 6)

 

  • Descriptions, claims or illustrations relating to verifiable facts in marketing communications should be capable of substantiation. Claims that state or imply that a particular level or type of substantiation exists must have at least the level of substantiation advertised. Substantiation should be available so that evidence can be produced without delay and upon request to the self-regulatory organisations responsible for the implementation of the Code

 

identification and transparency (Art. 7)

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews

 

identity of the marketer (Art. 8)

 

  • The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called “teaser advertisements”)
 

Use of technical/ scientific data and terminology (Art. 9)

 

  • Marketing communications should not
     
  • misuse technical data, e.g. research results or quotations from technical and scientific publications
  • present statistics in such a way as to exaggerate the validity of a product claim
  • use scientific terminology or vocabulary in such a way as falsely to suggest that a product claim has scientific validity

 

 

Use of 'free' and 'guarantee' (Art. 10)

 

  • The term "free", e.g. “free gift” or “free offer”, should be used only
     
    • where the offer involves no obligation whatsoever; or
    • where the only obligation is to pay shipping and handling charges which should not exceed the cost estimated to be incurred by the marketer, or
    • in conjunction with the purchase of another product, provided the price of that product has not been increased to cover all or part of the cost of the offer
       
  • Where free trial, free subscription and similar offers convert to paid transactions at the end of the free period, the terms and conditions of the paid conversion should be clearly, prominently and unambiguously disclosed before the consumer accepts the offer. Likewise, where a product is to be returned by the consumer at the end of the free period it should be made clear at the outset who will bear the cost for that
  • The procedure for returning the product should be as simple as possible, and any time limit should be clearly disclosed. See also Article C12 Right of withdrawal
  • Marketing communications should not state or imply that a “guarantee”, “warranty” or other expression having substantially the same meaning, offers the consumer rights additional to those provided by law when it does not
  • The terms of any guarantee or warranty, including the name and address of the guarantor, should be easily available to the consumer and limitations on consumer rights or remedies, where permitted by law, should be clear and conspicuous

 

Comparisons (Art. 11)​

 

  • Marketing communications containing comparisons should be so designed that the comparison is not likely to mislead, and should comply with the principles of fair competition. Points of comparison should be based on facts which can be substantiated and should not be unfairly selected

 

 

Denigration (Art. 12)

 

  • Marketing communications should not denigrate any person or group of persons, firm, organisation, industrial or commercial activity, profession or product, or seek to bring it or them into public contempt or ridicule

 

 

Testimonials (Art. 13)

 

  • Marketing communications should not contain or refer to any testimonial, endorsement or supportive documentation unless it is genuine, verifiable and relevant
  • Testimonials or endorsements which have become obsolete or misleading through passage of time should not be used

 

 

Portrayal or imitation of persons and references to personal property (Art. 14)

 

  • Marketing communications should not portray or refer to any persons, whether in a private or a public capacity, unless prior permission has been obtained; nor should marketing communications without prior permission depict or refer to any person’s property in a way likely to convey the impression of a personal endorsement of the product or organisation involved

 

Exploitation of goodwill (Art. 15)

 

  • Marketing communications should not make unjustifiable use of the name, initials, logo and/or trademarks of another firm, company or institution
  • Marketing communications should not in any way take undue advantage of another firm’s, individual’s or institution’s goodwill in its name, brands or other intellectual property, or take advantage of the goodwill earned by other marketing campaigns without prior consent

 

 

Imitation (Art. 16)

 

  • Marketing communications should not imitate those of another marketer in any way likely to mislead or confuse the consumer, for example through the general layout, text, slogan, visual treatment, music or sound effects
  • Where a marketer has established a distinctive marketing communications campaign in one or more countries, other marketers should not imitate that campaign in other countries where the marketer who originated the campaign may operate, thereby preventing the extension of the campaign to those countries within a reasonable period of time

 

 

Safety and health (Art. 17)

 

  • Marketing communications should not, without justification on educational or social grounds, contain any visual portrayal or any description of potentially dangerous practices, or situations which show a disregard for safety or health, as defined by local national standards
  • Instructions for use should include appropriate safety warnings and, where necessary, disclaimers
  • Children should be shown to be under adult supervision whenever a product or an activity involves a safety risk
  • Information provided with the product should include proper directions for use and full instructions covering health and safety aspects whenever necessary
  • Such health and safety warnings should be made clear by the use of pictures, text or a combination of both

 

 

 

  • An 'environmental' claim is defined in the ICC Code as any claim in which explicit or implicit reference is made to the environmental or ecological aspects relating to the production, packaging, distribution, use/consumption or disposal of products. Environmental claims can be made in any medium, including labelling, package inserts, promotional and point-of-sales materials, product literature, as well as digital interactive media (Scope of Chapter D)

 

 

D1. Honest and truthful presentation

 

  • Marketing communication should be so framed as not to abuse consumers’ concern for the environment, or exploit their possible lack of environmental knowledge
  • Marketing communication should not contain any statement or visual treatment likely to mislead consumers in any way about the environmental aspects or advantages of products, or about actions being taken by the marketer in favour of the environment. Overstatement of environmental attributes, such as highlighting a marginal improvement as a major gain, or use of statistics in a misleading way (“we have doubled the recycled content of our product” when there was only a small percentage to begin with) are examples. Marketing communications that refer to specific products or activities should not imply, without appropriate substantiation, that they extend to the whole performance of a company, group or industry
  • An environmental claim should be relevant to the particular product being promoted and relate only to aspects that already exist or are likely to be realised during the product’s life, including customary and usual disposal or reasonably foreseeable improper disposal. It should be clear to what the claim relates, e.g. the product, a specific ingredient of the product, or its packaging or a specific ingredient of the packaging. A pre-existing but previously undisclosed aspect should not be presented as new. Environmental claims should be up to date and should, where appropriate, be reassessed with regard to relevant developments
  • Vague or non-specific claims of environmental benefit, which may convey a range of meanings to consumers, should be made only if they are valid, without qualification, in all reasonably foreseeable circumstances. If this is not the case, general environmental claims should either be qualified or avoided. In particular, claims such as “environmentally friendly,” “ecologically safe,” “green,” “sustainable,” “carbon friendly” or any other claim implying that a product or an activity has no impact — or only a positive impact — on the environment, should not be used without qualification unless a very high standard of proof is available. As long as there are no definitive, generally accepted methods for measuring sustainability or confirming its accomplishment, no claim to have achieved it should be made
  • Qualifications should be clear, prominent and readily understandable; the qualification should appear in close proximity to the claim being qualified, to ensure that they are read together. There may be circumstances where it is appropriate to use a qualifier that refers a consumer to a website where accurate additional information may be obtained. This technique is particularly suitable for communicating about after-use disposal. For example, it is not possible to provide a complete list of areas where a product may be accepted for recycling on a product package. A claim such as “Recyclable in many communities, visit [URL] to check on facilities near you,” provides a means of advising consumers where to locate information on communities where a particular material or product is accepted for recycling

 

 

D2. Scientific research

 

  • Marketing communications should use technical demonstrations or scientific findings about environmental impact only when they are backed by reliable scientific evidence
  • Environmental jargon or scientific terminology is acceptable provided it is relevant and used in a way that can be readily understood by those to whom the message is directed. (See also article 9 of the Code - Use of technical/ scientific data and terminology)
  • An environmental claim relating to health, safety or any other benefit should be made only where it is supported by reliable scientific evidence

 

 

D3. Superiority and comparative claims

 

  • Any comparative claim should be specific and the basis for the comparison should be clear. Environmental superiority over competitors should be claimed only when a significant advantage can be demonstrated. Products being compared should meet the same needs and be intended for the same purpose
  • Comparative claims, whether the comparison is with the marketer’s own previous process or product or with those of a competitor, should be worded in such a way as to make it clear whether the advantage being claimed is absolute or relative
  • Improvements related to a product and its packaging should be presented separately, and should not be combined, in keeping with the principle that claims should be specific and clearly relate to the product, an ingredient of the product, or the packaging or ingredient of the packaging

 

 

D4. Product life-cycle, components and elements

 

  • Environmental claims should not be presented in such a way as to imply that they relate to more stages of a product’s life-cycle, or to more of its properties, than is justified by the evidence; it should always be clear to which stage or which property a claim refers. A life-cycle benefits claim should be substantiated by a life cycle analysis
  • When a claim refers to the reduction of components or elements having an environmental impact, it should be clear what has been reduced. Such claims are justified only if they relate to alternative processes, components or elements which result in a significant environmental improvement
  • Environmental claims should not be based on the absence of a component, ingredient, feature or impact that has never been associated with the product category concerned unless qualified to indicate that the product or category has never been associated with the particular component, ingredient, feature or impact. Conversely, generic features or ingredients, which are common to all or most products in the category concerned, should not be presented as if they were a unique or remarkable characteristic of the product being promoted
  • Claims that a product does not contain a particular ingredient or component, e.g. that the product is “X-free”, should be used only when the level of the specified substance does not exceed that of an acknowledged trace contaminant or background level Note: “Trace contaminant” and “background level” are not precise terms. “Trace contaminant” implies primarily manufacturing impurity, whereas “background level” is typically used in the context of naturally occurring substances. Claims often need to be based on specific substance-by-substance assessment to demonstrate that the level is below that causing harm. Also, the exact definition of trace contaminants may depend on the product area concerned. If the substance is not added intentionally during processing, and manufacturing operations limit the potential for cross-contamination, a claim such as “no intentionally added xx” may be appropriate. However, if achieving the claimed reduction results in an increase in other harmful materials, the claim may be misleading. Claims that a product, package or component is “free” of a chemical or substance often are intended as an express or implied health claim in addition to an environmental claim. The substantiation necessary to support an express or implied health or safety claim may be different from the substantiation required to support the environmental benefit claim. The advertiser must be sure to have reliable scientific evidence to support an express or implied health and safety claim in accordance with other relevant provisions of the Code

 

 

D5. Signs and symbols

 

  • Environmental signs or symbols should be used in marketing communication only when the source of those signs or symbols is clearly indicated and there is no likelihood of confusion over their meaning. Such signs and symbols should not be used in such a way as to falsely suggest official approval or third-party certification

 

 

D6. Waste handling

 

  • Environmental claims referring to waste handling are acceptable provided that the recommended method of separation, collection, processing or disposal is generally accepted or conveniently available to a reasonable proportion of consumers in the area concerned. If not, the extent of availability should be accurately described

 

 

D7. Responsibility

 

  • For this chapter, the rules on responsibility laid down in the general provisions apply (see article 23)

 

 

 

Additional guidance

 

Terms important in communicating environmental attributes of products tend to change. The ICC Framework for Responsible Environmental Marketing Communications (2021) provides additional examples, definitions of common terms, and a checklist of factors that should be considered when developing marketing communications that include an environmental claim. The 'claims checklist' is under the Appendix

 

 

 

Applicable Self-Regulation 

 

 

 

Article 18.1. General principles

 

  • Special care should be taken in marketing communications directed to or featuring children or teens
     
    • Such communications should not undermine positive social behaviour, lifestyles and attitudes
    • Products which are illegal for children or teens to purchase or are unsuitable for them should not be advertised in media targeted to them
    • Marketing communications directed to children or teens should not be inserted in media where the editorial matter is unsuitable for them

      For rules on data protection relating specifically to children’s personal data see article 19

      For other specific rules on marketing communications with regard to children:

       
    • with respect to direct marketing and digital marketing communications see chapter C, article C7
    • within the context of food and non-alcoholic beverages see the ICC Framework for responsible food and beverage marketing communications

 

 

18.2. Inexperience and credulity of children

 

Marketing communications should not exploit inexperience or credulity of children, with particular regard to the following areas:

 

  1. When demonstrating a product’s performance and use, marketing communications should not
     
    1. minimise the degree of skill or understate the age level generally required to assemble or operate products
    2. exaggerate the true size, value, nature, durability and performance of the product
    3. fail to disclose information about the need for additional purchases, such as accessories, or individual items in a collection or series, required to produce the result shown or described
       
  2. While the use of fantasy is appropriate for younger as well as older children, it should not make it difficult for them to distinguish between reality and fantasy
  3. Marketing communications directed to children should be clearly distinguishable to them as such
 

 

18.3. Avoidance of harm

 

  • Marketing communications should not contain any statement or visual treatment that could have the effect of harming children or teens mentally, morally or physically. Children and teens should not be portrayed in unsafe situations or engaging in actions harmful to themselves or others, or be encouraged to engage in potentially hazardous activities or inappropriate behaviour in light of the expected physical and mental capabilities of the target demographic

 

 

18.4. Social values

 

  • Marketing communications should not suggest that possession or use of the promoted product will give a child or young person physical, psychological or social advantages over other children or teens, or that not possessing the product will have the opposite effect
  • Marketing communications should not undermine the authority, responsibility, judgment or tastes of parents, having regard to relevant social and cultural values
  • Marketing communications should not include any direct appeal to children and young people to persuade their parents or other adults to buy products for them
  • Prices should not be presented in such a way as to lead children and young people to an unrealistic perception of the cost or value of the product, for example by minimising them. Marketing communications should not imply that the product being promoted is immediately within the reach of every family budget
  • Marketing communications which invite children and young people to contact the marketer should encourage them to obtain the permission of a parent or other appropriate adult if any cost, including that of a communication, is involved

 

 

 

This sector has a separate database on this single topic. Access via the drop-down on the home page 

 

Applicable Self-Regulation and legislation 

 
  • ICC Framework for Responsible Food and Beverage Marketing Communications here
  • The EU Pledge, enhanced July 2021 effective Jan 2022
  • Regulation 1924/2006 on nutrition and health claims made on foods
  • Regulation 432/2012 establishing a list of permitted health claims on food 
  • Regulation 1169/2011 on the provision of food information to consumers
  • Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control

 

 

 

This sector has a separate database on this single topic. Access via the drop-down on the home page of this website 

 

Applicable Self-Regulation and legislation 

 

 

Legislation 

 

Article 22, AVMS Directive. Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:

 

  1. it may not be aimed specifically at minors or, in particular, depict minors consuming these beverages
  2. it shall not link the consumption of alcohol to enhanced physical performance or to driving
  3. it shall not create the impression that the consumption of alcohol contributes towards social or sexual success
  4. it shall not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal conflicts
  5. it shall not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light
  6. it shall not place emphasis on high alcoholic content as being a positive quality of the beverages

 

 

 

2.1 General Provisions from the Unfair Commercial Practices Directive 2005/29/EC (UCPD)

 

In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version. This is a significant document which covers, for example, guidance on environmental claims, and references relevant case law from a number of countries. It is the definitive guidance on how to apply the most important consumer protection - as that relates to commercial communications - regulation in the EEA

 

Article 6. Misleading actions

 

1.   A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:

 

(a) the existence or nature of the product

(b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product

(c) the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product

(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage

(e) the need for a service, part, replacement or repair

(f) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions

(g) the consumer's rights, including the right to replacement or reimbursement under Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (8), or the risks he may face

 

2.   A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves:

 

(a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor

(b) non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where:
 

(i) the commitment is not aspirational but is firm and is capable of being verified, and

(ii) the trader indicates in a commercial practice that he is bound by the code

 

 

Article 7. Misleading omissions

 

1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise

 

2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise

 

3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted

 

4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:

 

(a) the main characteristics of the product, to an extent appropriate to the medium and the product

(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting

(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable

(d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence

(e) for products and transactions involving a right of withdrawal or cancellation, the existence of such a right

 

5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material

 

 

ANNEX I

 

Commercial Practices which are in all circumstances considered unfair 

Marcoms-relevant only

 

 

1. Claiming to be a signatory to a code of conduct when the trader is not

2. Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation

3. Claiming that a code of conduct has an endorsement from a public or other body which it does not have

4. Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/ it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation

5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)

6. Making an invitation to purchase products at a specified price and then:

 

(a) refusing to show the advertised item to consumers; or

(b) refusing to take orders for it or deliver it within a reasonable time; or

(c) demonstrating a defective sample of it,

 

with the intention of promoting a different product (bait and switch)

 

7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice

9. Stating or otherwise creating the impression that a product can legally be sold when it cannot

10. Presenting rights given to consumers in law as a distinctive feature of the trader's offer

11. 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). This is without prejudice to Council Directive 89/552/EEC (1)

13. Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not

16. Claiming that products are able to facilitate winning in games of chance

17. Falsely claiming that a product is able to cure illnesses, dysfunction or malformations

18. Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions

19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent

20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item

21. Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not

22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer

 

 

Aggressive commercial practices

 

26. Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to Article 10 of Directive 97/7/EC and Directives 95/46/EC (2) and 2002/58/EC

28. Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them. This provision is without prejudice to Article 16 of Directive 89/552/EEC on television broadcasting

31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:

 

  • there is no prize or other equivalent benefit, or
  • taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost

 

 

 

2.2.1. Article 3 (4) of Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers

 

Article 2

 

For the purposes of this Directive:

 

(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;

(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products;

(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer

(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity

(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity

 

Article 3

 

1.  The selling price and the unit price shall be indicated for all products referred to in Article 1, the indication of the unit price being subject to the provisions of Article 5. The unit price need not be indicated if it is identical to the sales price.

2.   Member States may decide not to apply paragraph 1 to:

 

  • products supplied in the course of the provision of a service
  • sales by auction and sales of works of art and antiques

 

3.   For products sold in bulk, only the unit price must be indicated

4.   Any advertisement which mentions the selling price of products referred to in Article 1 shall also indicate the unit price subject to Article 5

 

Article 4

 

1.   The selling price and the unit price must be unambiguous, easily identifiable and clearly legible. Member States may provide that the maximum number of prices to be indicated be limited

2.   The unit price shall refer to a quantity declared in accordance with national and Community provisions

 

Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight

 

Article 5

 

1.   Member States may waive the obligation to indicate the unit price of products for which such indication would not be useful because of the products' nature or purpose or would be liable to create confusion

2.   With a view to implementing paragraph 1, Member States may, in the case of non-food products, establish a list of the products or product categories to which the obligation to indicate the unit price shall remain applicable

 

 

2.2.2. Extracts from UCPD

 

Article 6

Misleading actions

 

1.   A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:

 

 (d) the price or the manner in which the price is calculated, or the existence of a specific price advantage

 

Article 7

Misleading omissions

 

4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:

 

(a) the main characteristics of the product, to an extent appropriate to the medium and the product

(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting

(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable

 

Annex I

 

5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)

6. Making an invitation to purchase products at a specified price and then:

 

(a) refusing to show the advertised item to consumers; or

(b) refusing to take orders for it or deliver it within a reasonable time; or

(c) demonstrating a defective sample of it,

 

with the intention of promoting a different product ('bait and switch')

 

 

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

 

 

2.2.3. Pricing-related extracts from the ICC Advertising and Marketing Communications Code:

http://www.g-regs.com/downloads/ICCPricingextracts.pdf

 

 

 

2.2.4.The AVMS Directive and amend 

 

 

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02010L0013-20181218

Content rules excluding Alcohol (see pt. 1.5 above) in audiovisual commercial communications

 

 

Article 9

 

  1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:

 

  1. audiovisual commercial communications shall be readily recognisable as such; surreptitious audiovisual commercial communication shall be prohibited
  2. audiovisual commercial communications shall not use subliminal techniques
  3. audiovisual commercial communications shall not

 

  1. prejudice respect for human dignity
  2. include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation
  3. encourage behaviour prejudicial to health or safety
  4. encourage behaviour grossly prejudicial to the protection of the environment

 

  1. all forms of audiovisual commercial communications for cigarettes and other tobacco products, as well as for electronic cigarettes and refill containers, shall be prohibited
  2. audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages
  3. audiovisual commercial communications for medicinal products and medical treatment available only on prescription in the Member State within whose jurisdiction the media service provider falls shall be prohibited
  4. audiovisual commercial communications shall not cause physical, mental or moral detriment to minors; therefore, they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations

 

  1. Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22 (see pt. 1.5 above)

 

The AVMS Directive includes some further new provisions from Directive 2018/1808 which may have implications for food and alcohol advertising in particular. See the extracted clauses here, in particular article 4

 

 

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C. Channel Rules

1. TV/Radio/VOD

Sector

General

SECTION C - TV INC VOD & RADIO

 

 

KEY RULES

 

  • The rules in Content Section B apply; where there are distinctions between CAP and BCAP, BCAP obviously applies in this context (except VOD; see below)
  • Statutory provisions apply to all media, except those (shown in this section) specifically applying to broadcast communications content and placement
  • General content rules specific to TV and Radio are also from the Ofcom Broadcasting Code (OBC) Appendix 2, taken from the Audiovisual Media Services Directive 2010/13/EU 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
  • Surreptitious advertising - a reference to a product, service or trade mark that is contained within a programme, where that reference is intended by the broadcaster to serve as advertising and that is not made clear to the audience - is prohibited (Rule 9.3, Broadcasting Code)
  • Section 32 of the BCAP Code contains the scheduling rules in broadcasting. Click on the link to see which and when product categories can or can’t be shown
  • February 2022 CAP published I can see clearly now: an update on the implementation of superimposed text guidance  

 

VOD

 

The ASA is designated by Ofcom as the co-regulator for advertising on VOD services. Appendix 2 has been included in the CAP Code; this will apply to regulated on-demand services and reflect the legal requirements in the Communications Act. Remit note is here. The Appendix doesn’t go beyond the existing CAP rules

 

 
PRODUCT PLACEMENT

 

  1. Films (films made for cinema and films, including single dramas and single documentaries, made for television or other audiovisual media services
  2. Series made for television (or other audiovisual media services)
  3. Sports programmes and
  4. Light entertainment programmes (Rule 9.6, Ofcom Broadcasting Code OBC)
     
  • Programmes that fall within the permitted genres must not contain product placement if they are:
     
  1. News programmes; or
  2. Children’s programmes (i.e. those for viewing primarily by persons under the age of sixteen) Rule 9.7, OBC
     
  • Product placement must not influence the content and scheduling of a programme in a way that affects the responsibility and editorial independence of the broadcaster 
  • References to placed products, services and trademarks must not be promotional 
  • References to placed products, services and trademarks must not be unduly prominent
  • Other pp rules e.g. banned product sectors are shown in Section 9 of the OBC

 

SPONSORSHIP
(extracts only)

 

From Ofcom Section nine: Commercial references on TV

 

  • News and current affairs programmes must not be sponsored (Rule 9.15, OBC)
  • Programming (including a channel) may not be sponsored by any sponsor that is prohibited from advertising on television. This rule does not apply to electronic cigarettes and refill containers which are subject to Rule 9.16(a) (Rule 9.16, OBC). Sponsored programming with the aim or direct or indirect effect of promoting electronic cigarettes and/ or refill containers is prohibited (Rule 9.16 (a), OBC)
  • Sponsorship must comply with both the content and scheduling rules that apply to television advertising (Rule 9.17, OBC)
  • A sponsor must not influence the content and/ or scheduling of a channel or programming in such a way as to impair the responsibility and editorial independence of the broadcaster (Rule 9.18, OBC)
  • Sponsorship must be clearly identified by means of sponsorship credits. These must make clear:

 

  1. The identity of the sponsorship by reference to its name or trade mark; and
  2. The association between the sponsor and the sponsored content (Rule 9.19, OBC)

 

RADIO

 

https://www.ofcom.org.uk/tv-radio-and-on-demand/broadcast-codes/broadcast-code/section-ten-commercial-communications-radio

 

  • Programming that is subject to, or associated with, a commercial arrangement must be appropriately signalled, so as to ensure that the commercial arrangement is transparent to listeners (Rule 10.1, OBC)
  • No commercial reference, or material that implies a commercial arrangement, is permitted in or around news bulletins or news desk presentations (Rule 10.3, OBC)
  • No commercial reference, or material that implies a commercial arrangement, is permitted on radio services primarily aimed at children or in children’s programming included in any service (Rule 10.4, OBC)
  • No programming may be subject to a commercial arrangement with a third party that is prohibited from advertising on radio. This rule does not apply to electronic cigarettes and refill containers which are subject to Rule 10.6 (a) -Rule 10.6, OBC. (Sponsored programming with the aim or direct or indirect effect of promoting electronic cigarettes and/or refill containers is prohibited (Rule 10.6 (a), OBC)
  • The advertising content and scheduling rules that apply to radio broadcasting also apply to commercial references in programming (Rule 10.7, OBC)
  • Commercial references that require confirmation or substantiation prior to broadcast must be cleared for broadcast in the same way as advertisements (Rule 10.8, OBC)

 

 

 

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International

SECTION C TV/AV AND RADIO

 

 
APPLICABLE SELF-REGULATION AND LEGISLATION
 
  • These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth programming; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website
  • For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • Chapter B of the ICC Code linked above covers media sponsorship (Art. B12). The rules do not include product placement
  • The Audiovisual Media Services (AVMS) Directive 2010/13/EU is the key legislation; this was significantly amended by Directive 2018/1808, whose 'headline' was new rules for Video Sharing platforms (VSPS), but which made some other fairly significant amends to the AV framework, albeit none that had a notable impact on the content of commercial communications. The Directive's new/ adjusted rules in that context are assembled here and there's a helpful June 2021 commentary from Simmons & Simmons/ Lexology here and their June 2022 version is here. Some provisions are shown below

 

 

SPONSORSHIP (from the ICC Code) 

 

Article B12: Media sponsorship

 

  • The content and scheduling of sponsored media properties should not be unduly influenced by the sponsor so as to compromise the responsibility, autonomy or editorial independence of the broadcaster, programme producer or media owner, except to the extent that the sponsor is permitted by relevant legislation to be the programme producer or co-producer, media owner or financier
  • Sponsored media properties should be identified as such by presentation of the sponsor’s name and/or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online material
  • Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved

 

LEGISLATION KEY CLAUSES 

 

Note: The AVMS Directive is the source of rules for e.g. programme sponsorship and product placement. Observation of those rules is largely the responsibility of the media owners, so we don’t set them out below. They are available from the linked AVMS Directive (consolidated version following 2018/1808 amends, shown in red below) and under our General sector. Clauses below are those most relevant to advertising content

 

 

Article 9

 

1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:

 

  1. Audiovisual commercial communications shall be readily recognisable as such. Surreptitious audiovisual commercial communication shall be prohibited
  2. Audiovisual commercial communications shall not use subliminal techniques
  3. Audiovisual commercial communications shall not:

 

  1. Prejudice respect for human dignity
  2. Include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation
  3. Encourage behaviour prejudicial to health or safety
  4. Encourage behaviour grossly prejudicial to the protection of the environment

 

  1. All forms of audiovisual commercial communications for cigarettes and other tobacco products, as well as for electronic cigarettes and refill containers shall be prohibited;
    shall be prohibited
  2. Audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages
  3. Audiovisual commercial communication for medicinal products and medical treatment available only on prescription in the Member State within whose jurisdiction the media service provider falls shall be prohibited
  4. Audiovisual commercial communications shall not cause physical or moral detriment to minors. Therefore they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations

 

2. Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communications, accompanying or included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended. See 4. below

 

2.  Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22.
3.  Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications for alcoholic beverages. Those codes shall aim to effectively reduce the exposure of minors to audiovisual commercial communications for alcoholic beverages.

4.  Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications, accompanying or included in children's programmes, for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium and sugars, of which excessive intakes in the overall diet are not recommended.
Those codes shall aim to effectively reduce the exposure of children to audiovisual commercial communications for such foods and beverages. They shall aim to provide that such audiovisual commercial communications do not emphasise the positive quality of the nutritional aspects of such foods and beverages.
5.  Member States and the Commission may foster self-regulation, for the purposes of this Article, through Union codes of conduct as referred to in Article 4a (2).

 

Article 4a is found here 

 
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2. Cinema/Press/Outdoor

Sector

General

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

CINEMA

 

  • The rules in Content Section B apply; where there are distinctions between CAP and BCAP, the CAP Code rules obviously apply in this context; statutory provisions apply to all media
  • Clearance via the Cinema Advertising Association (CAA)

 

 
 PRINT

 

Press, magazines, promotional literature, e.g. leaflets, brochures, etc.

 

  • The rules in Content Section B apply; where there are distinctions between CAP and BCAP, the CAP Code rules obviously apply in this context; statutory provisions apply to all media
  • With regard to publications such as newspapers and magazines, the CAP Code applies to any third party ads, the publisher’s own ads (for example, an ad that promotes buying ad space within the publication), inserts, business classified ads (however, not the private ads), and advertorial content
  • Additionally, the Code applies to leaflets (unless they promote a ‘cause or idea’), business cards, brochures and catalogues, and carrier bags
  • However, the CAP Code does not apply to editorial material or press releases/ other PR material. Products and their packaging, including leaflets for the product contained within, are generally excluded from the Scope of the Code. However, when they are featured in marketing communications, the presentation of the ‘pack shot’ and any claims that are visible will fall within remit in that particular context; guidance here

 

 
OUTDOOR

 

  • The rules in Content Section B apply; where there are distinctions between CAP and BCAP, the CAP Code rules obviously apply in this context
  • Statutory provisions apply to all media
  • In outdoor space, the Code applies to posters on billboards, poster sites and at stations etc., but not those which appear at ‘point of sale’ (unless they include a promotion) or those which have been fly-posted, most of which is illegal
  • It also applies to third party ads in paid-for space in ambient media including, but not limited to, vehicles e.g. taxis and buses, but not an advertiser’s own vehicles, petrol pumps, bus tickets, ATMs, projections onto buildings, supermarket trolleys, the reverse side of till receipts and beer mats
  • While advertising at point of sale or on an advertiser’s own vehicles is usually considered beyond the scope of the Code, unless it includes a promotion, if an advertiser promotes its products in a medium that would usually be sold to third-party advertisers, the ASA might consider those ads in remit. For example, if a train company places their own posters in space that would also be sold to third party advertisers, their ads might also be subject to the CAP Code (Remit)

 

 

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International

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

Applicable Self-Regulation and legislation 

 

  • These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications or films for children; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website
  • For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels. Where there are content rules specific to the channels in this section, we show them below. In the context of ‘Native’ advertising in particular, articles 7 and 8 of the ICC Code shown below are relevant
  • The Unfair Commercial Practices Directive 2005/29/EC; re native advertising in particular in print, and all provisions related to misleadingness etc. apply in all media; some clauses below
  • In terms of channel rules, Chapter B (Sponsorship) of the ICC Code will apply; article B12 (shown below)

 

Refer to Content Section B for provisions; of particular relevance below:

 

 

Identification and transparency (Art. 7)

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.

 

Identity of the marketer (Art. 8)

 

  • The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called 'teaser advertisements').

 

 

Legislation key clauses 

 

Annex I of the UCPD 

 

11. 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). This is without prejudice to Council Directive 89/552/EEC (1)

22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer

 

 

Article B12 Media sponsorship

 

  • The content and scheduling of sponsored media properties should not be unduly influenced by the sponsor so as to compromise the responsibility, autonomy or editorial independence of the broadcaster, programme producer or media owner, except to the extent that the sponsor is permitted by relevant legislation to be the programme producer or co-producer, media owner or financier
  • Sponsored media properties should be identified as such by presentation of the sponsor’s name and/or logo at the beginning, during and/or at the end of the programme or publication content. This also applies to online material
  • Particular care should be taken to ensure that there is no confusion between sponsorship of an event or activity and the media sponsorship of that event, especially where different sponsors are involved

 

 

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3. Online Commercial Communications

Sector

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

Update 25 November 2022: Joint Ofcom-ICO statement on online safety and data protection

General

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

►DCMS Online Advertising consultation. March 2022

Significant commentary on the above from GALA/ Mondaq here

► ASA pilot to enhance online transparency 24 Mar 2022

 

CONTEXT

 

This section sets out the broad rules for the online environment generally. Below this, more specific channels are covered such as email, marketers’ own websites, and a section on Privacy rules and their impact on e.g. OBA. As the boundaries online can be less clear, and as space online is often advertiser-owned, there’s greater focus on the identification of advertising, as advertising is in remit (i.e. subject to the rules) in Owned and (some) Earned space as well as Paid. The definition of advertising is therefore important. CAP’s online scope ‘Extending the Digital remit of the CAP Code’, is fully explained in the linked document

 

REMIT: WHICH RULES APPLY AND WHERE 

 

  • The CAP Code rules in Content Section B apply, subject to the Remit issues set out in the introduction to this Channel, and below
  • Statutory provisions apply to all media, except those specifically applying to broadcast content and placement
  • For online marketing communications, the CAP Code applies to ads on video on demand platforms and music streaming services. it also applies to ‘paid for’ ads like banners, pop-ups, pre-rolls, ‘pay per click’ ads on search engines, but not the ‘natural listings’, and ‘promoted’ social media posts. However, it applies only  to the ‘preferential’ listings on independent price comparison websites (Remit)
  • The Code covers ‘advertorial’ content on news websites, in vlogs/ blogs and in social media as well as business classified ads and those on third party retail platforms (Remit)

 

NON PAID-FOR SPACE 

 

  • The Code also applies to claims made on a marketer’s own website and in other non-paid for space online that they control (for example, a marketer’s social media accounts and apps) if they are “… directly connected with the supply of good or services, opportunities, prizes or gifts. This includes ‘advergames’. See Marketers Own Websites section below
  • As with other non-paid for space, there is a limited exemption regarding ‘cause and idea’ marketing in the absence of a direct solicitation of donations
  • Viral advertising is also covered by the Code
  • The Code also applies to some aspects of online behavioural advertising (OBA) beyond the content of the individual ads that are served. See the OBA section below
  • Tweeting: Don’t get all in a Twitter about your #marketing. CAP News. March 2020

 

THE LAW

 

 

THE ICO

 

The ICO is the national data protection authority - ‘the UK's independent body set up to uphold information rights.’ Their guidance on various forms of commercial activities on and offline is important and valuable. In this general online context, their Personal information online code of practice is most relevant; see channels below for more specific guidance

 

SOME EDPB GUIDANCE

 

 

AFFILIATE MARKETING 

 

Defined as ‘a type of performance-based marketing where an affiliate is rewarded by a business for each new customer attracted by their marketing efforts, usually with a pre-agreed percentage of each sale.  Affiliates typically place ads and links online that direct consumers to the website of a company.’

 

From Online Affiliate Marketing Advice online March 2017

‘The recommendations linked below detail how affiliate marketing in different scenarios, if not otherwise clear from the context, could be made obviously identifiable.  These are not intended to be exhaustive or prescriptive and approaches other than those suggested may be equally acceptable.’

 

Blogs and news sites

Vlogs

Social media posts

Voucher sites

 

 

RELEVANT RULINGS AFFILIATE MARKETING

 

  1. Procter & Gamble (Health & Beauty Care) Ltd t/a Beauty Recommended, 27 May 2015. The ASA concluded that the videos within the ‘Beauty Recommended’ channel, including the ‘Easy Lip’ tutorial, were not obviously identifiable as marketing communications
  2. An ad for Gala Bingo seen on www.365dailynews.co/uk/casino, on 22 May 2017 under the headline “On Their Wedding Night He Delivered A Secret She Wasn’t Ready For. The Result Will Have You In Tears” had the appearance of an editorial article. Complaint upheld, ruling here
  3. The Liverpool Echo website www.liverpoolecho.co.uk, featured what appeared to be an article with the headline “Currys PC World launches its incredible Black Friday 2018 deals with £600 off TVs”. Complaint that it was not obviously identifiable as a marketing communication upheld, April 2019 ruling here

​​ 

Guidelines from the Advice Online linked above (and Influencer advice)

 

  • Where the content wholly concerns affiliate linked products and is entirely ‘directly connected’ to the supply of those productsthe commercial nature of the content should be clear prior to consumer engagement to satisfy rule 2.1 (Recognition of marcoms)
  • The most straightforward way to do so – if not otherwise clear from the context - is likely to be including an identifier, for example ‘Ad’, in the title of the blog or article in such a way that it is clear to consumers before they click through to the content, as well as to those reading the content
  • The ASA has ruled that both the business and the affiliate marketer are responsible under the Code notwithstanding the fact that the ads may have been created solely by the affiliate rather than by the business themselves
  • Some affiliate advice is included in CAP's February 2020 Influencers' guide to making clear that ads are ads
  • See also Like, comment and comply - YouTube and the CAP Code. CAP News Jun 2020

 

 

 

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International

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

CONTEXT

 

This particular section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as those for email, OBA, Social Networks etc., follow. As the boundaries online can be less clear, and as a considerable amount of space online is advertiser-owned, there’s greater focus on the identification of advertising, as advertising is in remit (i.e. subject to the rules) online in Owned and (some) Earned space as well as Paid

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

 

Legislation

 

  • Directive 2002/58/EC on privacy and electronic communications
  • Directive 2000/31/EC on electronic commerce

  • Regulation 2016/679/EU on the processing of personal data (GDPR) 

  • Directive 2018/1808 amending AVMS Directive 2010/13/EU 

Also be aware of:

The Digital Services Act, a legislative proposal by the European Commission to modernise the e-Commerce Directive regarding illegal content, transparent advertising, and disinformation

The Digital Markets Act, an EU regulation proposal under consideration by the European Commission. The DMA intends to ensure a higher degree of competition in European Digital Markets, by preventing large companies from abusing their market power and by allowing new players to enter the market

The e-Privacy Regulation 'is a proposal for the regulation of various privacy-related topics, mostly in relation to electronic communications within the European Union.' It is intended to replace the Directive on Privacy and Electronic Communications (Directive 2002/58/EC)

Here's a helpful March 2022 fact sheet on the DSA from the EDAA and on the DMA from Hunton Andrews Kurth

And The DSA: Consequences of the use of digital advertising from Dentons/ Lex August 30, 2022 covers the significant implications of this EU legislation on the advertising industry

And some implications from the EU's Digital Services Act are set out here by Lewis Silkin/ Lex October 21, 2022 

 

Self-Regulatory clauses 

 

Chapter C ICC Code; Direct Marketing and Digital Marketing Communications (extracts) 

 

C1. Identification and transparency

 

  • Marketing communications should be properly identified as such in accordance with Article 7 of the General Provisions. Subject descriptors should be accurate and the commercial nature of the communication should be transparent to the consumer
  • Where a marketer has created or offered consideration for a product endorsement or review, the commercial nature should be transparent. In such cases, the endorsement or review should not state or imply that it is from or conferred by an individual consumer or independent body
  • Marketers should take appropriate steps to ensure that the commercial nature of the content of a social network site or profile under the control or influence of a marketer is clearly indicated and that the rules and standards of acceptable commercial behaviour in these networks are respected
  • Any image, sound or text which, by its size, volume or any other visual characteristic, is likely to materially reduce or obscure the legibility and clarity of the offer should be avoided

 

C2. Identity of the marketer

 

  • The identity of the marketer and/ or operator and details of where and how they may be contacted should be given in the offer, so as to enable the consumer to communicate directly and effectively with them. This information should be where technically feasible available in a way which the consumer could access and keep, i.e. via a separate document offline, an online or downloadable document, email or SMS or log-in account; it should not, for example, appear only on an order form which the consumer is required to return.
  • At the time of delivery of the product, the marketer’s full name, address, e-mail and phone number should be supplied to the consumer
 

C7. Marketing communications and children

 

  • Parents and/or guardians should be encouraged to participate in and/or supervise their children’s interactive activities
  • Personal data about individuals known to be children should only be disclosed to third parties after obtaining consent from a parent or legal guardian or where disclosure is authorised by law. Third parties do not include agents or others who provide support for operational purposes of the website and who do not use or disclose a child’s personal information for any other purpose
  • Websites devoted to products or services that are subject to age restrictions such as alcoholic beverages, gambling and tobacco products should undertake measures, such as age screens, to restrict access to such websites by minors
  • Digital marketing communications directed at children in a particular age group should be appropriate and suitable for such children

 

C10. Respect for the potential sensitivities of a global audience

 

  • Marketers should strive to avoid causing offense by respecting social norms, local culture and tradition in markets where they are directing marketing communications. Given the global reach of electronic networks, and the variety and diversity of possible recipients, marketers should take steps to align their marketing communications with the principles of social responsibility contained in the General Provisions

 

 

Legislative clauses

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

  1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
  2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC*, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
  3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
  4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
  5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected

* Now repealed; GDPR applies 

 

 

Directive 2000/31/EC: article 5

 

General information to be provided

 

  1. In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:
     

(a) The name of the service provider

(b) The geographic address at which the service provider is established

(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner

(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register

(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority

(f) As concerns the regulated professions:
 

- any professional body or similar institution with which the service provider is registered

- the professional title and the Member State where it has been granted

- a reference to the applicable professional rules in the Member State of establishment and the means to access them
 

(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
 

  1. In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs

 

 

Section 2: Commercial communications

 

Article 6

 

Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:

 

  1. The commercial communication shall be clearly identifiable as such
  2. The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
  3. Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
  4. Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously

 

Article 7

Unsolicited commercial communication

 

  1. In addition to other requirements established by Community law, Member States which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
  2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves

 

 

Directive 2018/1808 amending the AVMS Directive 

 

  • Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here

  • For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial communications  

 

Guidance

 

European Data Protection Board / Article 29 Working Party

 

  • Working Document 02/2013 providing guidance on obtaining consent for cookies here
  • Opinion 15/2011 on the definition of consent here
  • May 2020 Guidelines on Consent under Regulation 2016/679 here

 

 

EASA Digital Marketing Communications Best Practice Recommendation. This document:

 

  • Recognises the global nature of digital media and the need to develop a coordinated response across EASA’s membership
  • Provides clear guidance to EASA’s SRO members on how to determine whether content under review is a marketing communication in the digital space
  • Encourages local SROs and advertising industry representatives to ensure that the self-regulatory remit at national level is aligned with the recommendations set out in this document
  • Identifies a non-exhaustive list of digital marketing communications practices which are recommended to be in the SRO’s remit
  • Identifies forms of digital content which lie outside of SRO’s remit under all circumstances

 

 

 

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4. Cookies & OBA

Sector

General

SECTION C: COOKIES AND OBA

 

 

COOKIES

 

Privacy issues should be reviewed with specialist advisors 

 

LEGISLATION 

 

  • Regulation 6 of The Privacy and Electronic Communications (EC Directive) Regulations 2003 applies; regulations are transposed from E-Privacy Directive 2002/58/EC, amended by Directive 2009/136/EC, the ‘Cookie Directive’. The UK regulations are known as ‘PECR’. And see GDPR references below 

 

GUIDANCE 

 

 
GDPR AND UK DEVELOPMENTS 

 

The ICO’s Guide to the General Data Protection Regulation is here. Updates can be found here. Check privacy matters, and especially how GDPR applies to cookies, with your/ your client’s lawyers. Relevant EDPB guidance from March 2019 is Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. The government on 10 September 2021 went out to consultation with Data: a new direction; closes 19th November. AnIs the UK getting tough on cookies? The ICO responds to the Government’s plans from Slaughter & May October 2021 addresses some potentially significant developments for cookie regulations

 

UK IMPLICATIONS

 

The Data Protection Act 2018 replaces the 1998 Act. The Overview of the Act explains the relationship with the GDPR:

(1) This Act makes provision about the processing of personal data. (2) Most processing of personal data is subject to the GDPR. (3) Part 2 supplements the GDPR (see Chapter 2) and applies a broadly equivalent regime to certain types of processing to which the GDPR does not apply (see Chapter 3). (4) Part 3 makes provision about the processing of personal data by competent authorities for law enforcement purposes and implements the Law Enforcement Directive. (5) Part 4 makes provision about the processing of personal data by the intelligence services. (6) Part 5 makes provision about the Information Commissioner. (7) Part 6 makes provision about the enforcement of the data protection legislation.

 

SELF-REGULATION

 

  • The CAP Code includes Section 10 Use of data for marketing, amended and re-named following the introduction of the GDPR and related consultation. This section now closely reflects and ‘has regard to GDPR and the Data Protection Act 2018 in the case of personal data, and the Privacy and Electronic Communications (EC Directive) Regulations 2003 in the case of activities relating to electronic communications.’
  • See from CAP Five top tips on our new rules on the use of data for marketing
  • OBA rules have been incorporated into Section 10, having been removed from their previous 'home' in Appendix 3. See below 

 

The Direct Marketing Association (DMA)

 

The DMA Code of Practice is here: https://dma.org.uk/the-dma-code

 

ONLINE BEHAVIOURAL ADVERTISING (OBA)

 

Facebook's Meta to ban adverts that target people on 'sensitive topics' politics, race and sexual orientation.

Effective 19 January 2022

 

  • OBA, like any other advertising, is subject to the rules in our earlier Content Section B, from Self-Regulation the CAP Code rules in this context
  • Statutory provisions apply to all media; in this context, the Privacy and Electronic Communications Act also applies 
  • The assumption for OBA is that the great majority of behavioural advertising is via ad networks, that they will deploy cookies of various types, the relevant versions of which are therefore third party cookies
  • The ICO’s Guidance On The Rules Of Use Of Cookies covers third party cookies, from which: ‘third parties setting cookies, or providing a product that requires the setting of cookies, may wish to consider putting a contractual obligation into agreements with web publishers to satisfy themselves that appropriate steps will be taken to provide information about the third party cookies and obtain consent’
  • Guidelines on Automated individual decision-making and Profiling for the purposes of Regulation 2016/679 is significant guidance from the EDPB 
  • GDPR lawful processing rules may need to be taken into account if data processing identifies individuals
  • There's a lot happening in regulation of the online space. This Digital regulation: overview of government activity from DCMS is helpful; some of the activity includes a review of OBA Extract 'The government is committed to reviewing the online advertising ecosystem as part of DCMS’ Online Advertising Programme to ensure it is subject to appropriate regulation and that harms in advertising are minimised. Specific issues that may form part of the scope of the review include the use of personal and online behavioural data in the targeting of online ads, and ensuring robust levels of transparency and accountability in the regulation of online advertising with respect to the content and placement of online advertising. The review will include looking at the role of platforms in the online advertising ecosystem.'

 

Section 10 of the CAP Code provides specific OBA rules; extracts for this context are:

 

At the time of collecting consumers’ personal data from them, marketers must provide consumers with the following information (in, for example, a privacy notice), unless the consumer already has it:  

 

  • The existence of automated decision-making, including profiling producing legal or similarly significant effects on consumers, referred to in Article 22(1) and (4) of the GDPR and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the consumer (CAP Code rule 10.2.12)

 

INTERNATIONAL SELF-REGULATION

 

A good number of companies & organisations in Europe are supporters of and engaged in the European self-regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance (EDAA http://www.edaa.eu). The OBA Icon, 

 

 

which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. From the icon, the consumer is provided with a link to http://www.youronlinechoices.eu/, which has information on how data is used, a means to ‘turn off’ data collection and use, and a portal to connect with national self-regulatory organisations for complaint handling

 

 

 

 

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International

SECTION C: COOKIES AND OBA

 

 

Cookies: A Comparison Chart of International Requirements (Belgium, China, France, Germany, Greece, Singapore, United Kingdom, USA)

From Reed Smith LLP/ Lex May 2022 

The European ‘Cookie Monster’ - Digital services and cookies under scrutiny

From Freshfields Bruckhaus Deringer LLP/ Lex August 2022

Data protection update Stephenson Harwood LLP/ Lex. European Union, France, United Kingdom, USA November 2, 2022

 

1. COOKIES

 

Applicable legislation, Self-Regulation and guidance 

Note that legislation is implemented in member states, sometimes with nuance 

 

 

Article 29/EDPB Working Party documents

 

  • Working Document 02/2013 providing guidance on obtaining consent for cookies here
  • Opinion 04/2012 on Cookie Consent Exemption here
  • Opinion 15/2011 on the definition of consent here
  • May 2020 Guidelines on Consent under Regulation 2016/679 here
  • Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR here

 

As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid

 

 

Legislation

 

Directive on privacy and electronic communications 2002/58/EC as amended by Directive 2009/136/EC

 

  • Member States shall ensure that the use of electronic communications networks to store information or to gain access to information stored in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned is provided with clear and comprehensive information in accordance with Directive 95/46/EC, inter alia about the purposes of the processing, and is offered the right to refuse such processing by the data controller. This shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user (Art. 5.3)

 

GDPR

 

  • The introduction of the GDPR 2016/679 from May 25, 2018: in the event that cookies that identify individuals are deployed, then GDPR lawful processing rules apply. GDPR/ privacy issues should be overseen by legal advisors

 

2. OBA 

 

The Digital Services Act has been approved: targeted advertising will soon be restricted
Sirius Legal November 7, 2022

 

Applicable regulation and opinion

 

 

Application of notice and choice provisions

 

  • Any third party participating in OBA should adhere to principles of notice and user control as set out below
  • Transparency of data information collection and use, and the ability for users and consumers to choose whether to share their data for OBA purposes is vital
  • The following guidance provides further clarification for how these principles apply to OBA

 

C22.1. Notice

 

  • Third parties and website operators should give clear and conspicuous notice on their websites describing their OBA data collection and use practices
  • Such notice should include clear descriptions of the type of data and purpose for which it is being collected and an easy to use mechanism for exercising choice with regard to the collection and use of the data for OBA purposes
  • Notice should be provided through deployment of one or multiple mechanisms for clearly disclosing and informing Internet users about data collection and use practices

 

C22.2. User control

 

  • Third parties should make available a mechanism for web users to exercise their choice with respect to the collection and use of data for OBA purposes and the transfer of such data to third parties for OBA. Such choice should be available via a link from the notice mechanisms described in footnote 9 (Note: footnote 9 does not appear to relate; waiting for feedback from the ICC)

 

C22.5. Data security

 

  • Appropriate physical, electronic, and administrative safeguards to protect the data collected and used for IBA purposes should be maintained at all times
  • Data that is collected and used for IBA should only be retained for as long as necessary for the business purpose stated in the consent

 

C22.6 Children

 

  • Segments specifically designed to target children for IBA purposes should not be created without appropriate parental consent

 

C22.7. Sensitive data segmentation

 

  • In general, companies should not create or use IBA segments based on sensitive data.Those seeking to create or use such IBA segments relying on use of sensitive data as defined under applicable law should obtain a web user’s explicit consent, prior to engaging in IBA using that information

 

 

Opinion/ guidance 

 

Article 29 Working Party* documents

 

 

*As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid

 

European Self-Regulatory programme for OBA

 

  • A good number of companies and organisations in Europe are engaged in the European self-regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance (EDAA http://www.edaa.eu). The OBA Icon, which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. The consumer is provided with a link to the OBA Consumer Choice Platform - http://www.youronlinechoices.eu/ - a pan-European website with information on how data is used, a mechanism to ‘turn off’ data collection and use, and a portal to connect with national Self-Regulatory Organisations for consumer complaint handling
  • EDAA has published their latest (2021) European Advertising Consumer Research Report, which provides an overview of respondents’ attitudes and awareness of the European Self-Regulatory Programme for Online Behavioural Advertising (OBA) in ten European markets (Belgium, France, Great Britain, Germany, Ireland, Italy, Poland, Romania, Spain & Sweden). Read the full report here

 

 
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5. Emails & SMS

Sector

General

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

CONTEXT​ FOR THIS CHANNEL

 

  • The CAP Code rules in our Content Section B apply in this channel
  • Content-related statutory provisions apply to all media, except the legislation specifically applying to broadcast content and placement
  • Lawful processing rules from the GDPR may apply. Specialist advisors should be consulted on Privacy issues

 

 

LEGISLATION AND GUIDANCE

 

 

OTHER LEGISLATION

 

 

 

DEFINITION AND SCOPE PECR

 

The rules outlined below will apply to any electronically stored messages, including email, text, picture, video, voicemail, answerphone (ICO Guide to PECR). ‘Electronic mail’ means any text, voice, sound or image message sent over a public electronic communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient and includes messages sent using a short message service (Art 2 (1) PECR)

 

 

B2C

 

  • Except in the circumstances referred to in paragraph (3), a person shall neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he consents for the time being to such communications being sent by, or at the instigation of, the sender (Art 22.2 PECR)
  • (3) A person may send or instigate the sending of electronic mail for the purposes of direct marketing where:
     

(a) That person has obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient

(b) The direct marketing is in respect of that person’s similar products and services only; and

(c) The recipient has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of his contact details for the purposes of such direct marketing, at the time that the details were initially collected, and, where he did not initially refuse the use of the details, at the time of each subsequent communication
 

  • For the soft opt-in principle (above) to apply, the contact details must be obtained directly from the individual. In this regard, organisations cannot rely on SOI if they have obtained a marketing list from a third party. Indirect (third party) consent will need to have been obtained (see ICO DM Guidance; checklist here

 

 

E-COMMERCE INFORMATION 

 

From The Electronic Commerce (EC Directive) Regulations 2002, transposed from Directive 2000/31/EC, the electronic commerce directive

 

  • A service provider shall ensure that any commercial communication provided by him and which constitutes or forms part of an information society service shall:

 

(a) Be clearly identifiable as a commercial communication

(b) Clearly identify the person on whose behalf the commercial communication is made

(c) Clearly identify as such any promotional offer (including any discount, premium or gift) and ensure that any conditions which must be met to qualify for it are easily accessible, and presented clearly and unambiguously; and

(d) Clearly identify as such any promotional competition or game and ensure that any conditions for participation are easily accessible and presented clearly and unambiguously.

(Art. 7 ECR)

 

  • A service provider shall ensure that any unsolicited commercial communication sent by him by electronic mail is clearly and unambiguously identifiable as such as soon as it is received (Art. 8 ECR)
  • Regulation 6 ECR covers general information to be provided by a person providing an information society service such as name, address, trade register and registration number, details of authorisations by supervisory bodies, contact details, price requirements etc.

 

 

CONSENT 

 

 

 

INDUSTRY CODES 

 

 

 

B2B

 

  • The restrictions on email marketing set out in Regulation 22 PECR do not apply to corporate subscribers, including limited companies, limited liability partnerships and government bodies (Art. 22 (1) PECR). Sole traders, general partnerships and their employees are treated as consumers so rules for B2C will apply to them
  • ICO DM Guidance confirms that the rules on consent, SOI, the right to opt-out will not apply to emails sent to companies and other corporate bodies. The only requirement is that the sender must identify itself, provide contact details and e-commerce information as provided above
  • The GDPR update within the iCO Guidance states: If you are processing an individual’s personal data to send business to business texts and emails the right to object at any time to processing of their personal data for the purposes of direct marketing will apply. The right to object to marketing is absolute and you must stop processing for these purposes when someone objects. See our right to object guidance for further details

 

 

SMS / MMS

 

SMS and MMS are defined as electronic mail (Art 2 (1) PECR and CAP Code S.10). The principles above will apply to direct marketing sent by SMS and MMS

 

  • In short, prior consent is required, subject to exemptions included under the B2C sub-head above
  • Despite practical limitations of standard mobile phones and character limits, the rules will apply; in particular the e-commerce information and opt-out requirements. ICO PECR Guidance and The Department for Business Innovation and Skills (BIS) Guide to ECRs provide useful guidance on the subject:

 

5.3 The Regulations do not prescribe how the requirement to make information “easily, directly and permanently accessible” should be met. The Government recognises that technological constraints (e.g. the 160-character limit on mobile text messages) mean that the information may not readily be accessible by the same means by which the service provider transacts with recipients of his services. The Government envisages, however, that these criteria should be capable of being met if the information is accessible by other means (e.g. inclusion on a website)

 

  • CAP Guidance on Mobile Marketing (not updated for new legislation) provides: Mobile marketers who do not have explicit consent must tell those whose details they have obtained in the course of, or in negotiations for, a sale that they can opt-out of having their data used for direct marketing purposes when they collect their data as well as every time, including the first, they send out future mobile marketing. They can use abbreviations so long as they are likely to be understood by the audience addressed. For example, the following is likely to be acceptable: “2STOPMSGSTXT’STOP’TO…”. They must allow consumers, with the minimum effort and at the minimum, unavoidable cost, to state they object to future direct marketing

 

 

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International

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

  • For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • The channel rules shown here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website
  • Chapter C of the ICC Code (full Code linked above): Direct Marketing and Digital Marketing Communications
  • General Provisions of the ICC Code will apply: in particular: Art. 9 (Identification); Art. 10 (Identity); Art. 19 ICC Code Data Protection and Privacy; para re consumer rights
  • Directive 2000/31/EC on electronic commerce carries the rules on information to be provided in commercial communications in an e-commerce context; extracts below 
  • Directive 2002/58/EC on privacy and electronic communications carries the rules on privacy/ consent, setting out the prevailing European opt-in regime; extracts below
  • GDPR may apply if processing personal data; check privacy issues with specialist advisors 
  • See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 

 

General provisions; refer to our earlier Section B or the linked ICC document for full provisions. Of particular relevance below:

 

 

Article 19 ICC Code: Data protection and privacy

 

  • When collecting personal data from individuals, care should be taken to respect and protect their privacy by complying with relevant rules and regulations
 

 

19.1. Collection of data and notice

 

  • When personal data is collected from consumers, it is essential to ensure that the individuals concerned are aware of the purpose of the collection and of any intention to transfer the data to a third party for that third party’s marketing purposes. Third parties do not include agents or others who provide technical) or operational support to the marketer and who do not use or disclose personal data for any other purpose. It is best to inform the individual at the time of collection; when it is not possible to do so this should be done as soon as possible thereafter

 

 

19.2. Use of data

 

Personal data should be:

 

  • collected for specified and legitimate purposes and used only for the purposes specified or other uses compatible with those purposes
  • adequate, relevant and not excessive in relation to the purpose for which they are collected and/or further processed
  • accurate and kept up to date
  • preserved for no longer than is required for the purpose for which the data were collected or further processed

 

 

19.3. Security of processing

 

  • Adequate security measures should be in place, having regard to the sensitivity of the data, in order to prevent unauthorised access to, or disclosure of, the personal data.If the data is transferred to third parties, it should be established that they employ at least an equivalent level of security measures

 

 

19.4. Children’s personal data

 

  • When personal data is collected from individuals known or reasonably believed to be children, guidance should be provided to parents or legal guardians about protecting children’s privacy if feasible
  • Children should be encouraged to obtain a parent’s or responsible adult’s consent before providing personal data via digital interactive media, and reasonable steps should be taken to check that such permission has been given
  • Only as much personal data should be collected as is necessary to enable the child to engage in the featured activity. A parent or legal guardian should be notified and consent obtained where required.
  • Personal data collected from children should not be used to address marketing communications to them, the children’s parents or other family members without the consent of the parent
  • Personal data about individuals known or reasonably believed to be children should only be disclosed to third parties after obtaining consent from a parent or legal guardian or where disclosure is authorised by law. Third parties do not include agents or others who provide technical or operational support to the marketer and who do not use or disclose children’s personal data for any other purpose
  • For additional rules specific to marketing communications to children using digital interactive media, see chapter C, article C7
 
 

19.5. Privacy policy

 

  • Those who collect personal data in connection with marketing communication activities should have a privacy policy, the terms of which should be readily available to consumers, and should provide a clear statement of any collection or processing of data that is taking place, whether it is self-evident or not. General provisions and definitions on advertising and marketing communications In jurisdictions where no privacy legislation currently exists, it is recommended that privacy principles such as those of the ICC Privacy Toolkit4 are adopted and implemented

 

 

19.6. Rights of the consumer

 

  • Appropriate measures should be taken to ensure that consumers understand their rights to e.g.:

 

  • opt out of direct marketing lists
  • opt out of interest-based advertising
  • sign on to general direct preference services
  • require that their personal data not be made available to third parties for their marketing purposes; and
  • rectify incorrect personal data which are held about them

 

  • Where a consumer has clearly expressed a wish not to receive marketing communications using a specific medium, this wish should be respected. Appropriate measures should be put in place to help consumers understand that access to content may be made conditional on the use of data. For additional rules specific to the use of the digital interactive media and consumer rights, see chapter C, article C9

 

 

19.7. Cross-border transactions

 

  • Particular care should be taken to maintain the data protection rights of the consumer when personal data are transferred from the country in which they are collected to another country. When data processing is conducted in another country, reasonable steps should be taken to ensure that adequate security measures are in place and that the data protection principles set out in this code are respected. The use of the ICC model clauses covering agreements between the originator of the marketing list and the processor or user in another country is recommended

 

 

Chapter C of the 2018 ICC Advertising and Marketing Communications Code, Direct Marketing and Digital Marketing Communications, is also applicable. Key clauses are shown under the Online Commercial Communications section, or can be found in the linked Code 

 
 
LEGISLATION

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

  1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
  2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC*, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
  3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
  4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
  5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected

* Repealed; GDPR applies 

 

 

Directive 2000/31/EC: Article 5

 

General information to be provided in an E-commerce context

 

  1. In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:

 

  1. The name of the service provider
  2. The geographic address at which the service provider is established
  3. The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
  4. Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
  5. Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
  6. As concerns the regulated professions

 

- any professional body or similar institution with which the service provider is registered

- the professional title and the Member State where it has been granted

- a reference to the applicable professional rules in the Member State of establishment and the means to access them
 

  1. Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment (29)
  2. In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs

 

 

Section 2: Commercial communications

 

Article 6

 

  • Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:

 

  1. The commercial communication shall be clearly identifiable as such
  2. The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
  3. Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
  4. Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously

 

 

Article 7

Unsolicited commercial communication

 

  1. In addition to other requirements established by Community law, Member States which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
  2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves

 

 
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EU guidance documents

 

  • Opinion 5/2004 on unsolicited communications for marketing purposes under article 13 of Directive 2002/58/EC. Adopted on 27 February 2004 (WP 90)
  • Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on unsolicited commercial communications or 'spam'
    http://eur-lex.europa.eu/legal-content/GA/TXT/?uri=celex:52004DC0028 
  • November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 
  • Opinion 15/2011 on the definition of consent here 
  • May 2020 Guidelines on Consent under Regulation 2016/679 here
 
 
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6. Own Websites & SNS

Sector

General

SECTION C: MARKETERS' OWN WEBSITES

 

 

CONTEXT 

 

The same principle that applies in paid space also applies in non-paid space such as marketers’ own websites and SNS spaces: if communications from the owner meet the definition of advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that are directly connected with the supply or transfer of goods, services, opportunities and gifts, or which consist of direct solicitations of donations as part of their own fund-raising activities, then they are subject to the rules. The full CAP remit extension online is here, and see also September 2016 Guidance on Remit: Own websites. The remit extends to marketers’ Social Network Sites, which are seen in this context in the same light as marketers’ own websites. The key issue is the identification of a marketing communication.

 

 

CORE RULES

 

  • Per above, marketers' own marcoms on their own websites will be subject to the rules in our Content Section B, in particular those from the CAP Code, which applies online, and from statutory requirements (i.e. the law), except those applying specifically to broadcast content
  • Exemptions are found in CAP’s remit statement (same document as linked above) sections 3.11 to 3.15. They include User-Generated Content (UGC), except when it has been endorsed by the marketer. The same principle applies to viral marketing communications. CAP commentary from May 2016 on UGC is here. As the issue of UGC and vlogs and their commercial connection is significant in the 'Own website' context, some rulings and guidance are shown below:

 

 

RULINGS RELATED TO UGC

 

  • ASA Ruling on Skinny Tan in association with Elly Norris. February 2021. Complaint upheld. A reposted Instagram story on the Skinny Tan Instagram account featured a story from influencer Elly Norris @ellykaynorris which included an image of her face and shoulders with the text caption “So impressed with how that went on, honestly like no other fake tan I’ve ever put on, and the smell is just something else. Can’t wait to see what it’s like tomorrow morning [heart-eyes emoji]”.
  • ASA Ruling on Santander UK plc. May 2017 complaint not upheld. The UGC was endorsed, but the claims made and scenarios depicted were not considered to be in breach
  • ‘Where UGC is within remit, the CAP Code applies in full and marketers will need to make sure that the content is responsible and not misleading, harmful or offensive. So, if the UGC relates to alcohol, the alcohol rules will apply, per Hi Spirits ruling:
    https://www.asa.org.uk/rulings/hi-spirits-a12-209534.html

 

 

VLOGGING GUIDANCE AND RULINGS 

 

  • Social media sites have their own terms and conditions. In Facebook’s case, marketers are not permitted to pay individuals to promote brands, products or services on personal pages or profiles:
    https://www.facebook.com/page_guidelines.php
  • The CPRs and the CAP Code both prohibit practices that make false claims or create an impression that the trader is not acting for the purposes of his trade, business craft or profession or that the trader is a consumer (CPRs No. 22, sch. 1 and s. 2.3 CAP)
  • There have been a number of ASA adjudications on the issue of identification, examples of which are Mars Chocolate Ltd and Nike Ltd. This CAP September 2016 Guidance Remit: Social media makes reference to both cases

 

 

Vlogging Advertising Guidance

 

 
 

Own Social Media
Extracts from the linked Remit document from CAP September 2016 below:

 

  • ‘The ASA often receives complaints about company social media accounts, such as Twitter feeds, Facebook pages and Instagram accounts, to a lesser extent about Linkedin, Google+ and Pinterest pages and, at present, only very rarely about content on Snapchat
  • While the Code covers some material on a company’s own social media channels it doesn’t necessarily cover everything in such space. The main principles for determining whether specific material on a company’s own social media channel falls within the scope of the code are the same as for a company’s own website, i.e. is the material directly connected to the supply or transfer of goods, services, opportunities or gifts or a direct solicitation of donations
  • However, given the nature of social media and the role it plays in creating brand awareness and engagement, marketers should be aware that any content that bears a relationship to the products or services they offer has the potential to be considered directly connected and therefore within the ASA’s remit’
  • Tweeting: Don’t get all in a Twitter about your #marketing. CAP News. March 2020
  • ICO: Social networking and online forums – when does the DPA apply?
    https://ico.org.uk/media/for-organisations/documents/1600/social-networking-and-online-forums-dpa-guidance.pdf

 

 

RELEVANT RULINGS 

 

  • A TikTok post on The Wave House’s account, @thewavehouse, seen on 25 October 2020. ASA Ruling on Prettylittlething.com. Upheld 07 April 2021
  • ASA Ruling on Boohoo.com in association with Luke Mabbott. A TikTok post on Luke Mabbott’s account @lukemabbott featured a video of Luke Mabbott wearing two outfits. Upheld 10 February 2021
  • A tweet that stated "#TheMasters has started! #yippee" and another which stated “Fill in the blank: I think Jordan Spieth will win…Majors in 2015” from gambling operators were both considered to be within the scope of the Code, because they were promoting the brand and commenting on an event on which the advertiser would be offering bets. They were therefore considered to be directly connected with services offered by the advertisers:

 

WHG (International) Ltd t/a WillHillBet, 17 June 2015

Hillside (UK Sports) LP t/a Bet365, 28 October 2015

 

 

THE LAW RELATED TO IDENTIFICATION/ AVMS

 

  • The Consumer Protection from Unfair Trading Regulations 2008 (CPRs), derived from the Unfair Commercial Practices Directive 2005/29/EC, provides in Schedule 1 that a commercial practice ‘in all circumstances considered unfair’ is:
     
    • 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) Art. 11
    • Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer

 

  • The Audiovisual Media Services Regulations 2020 carry provisions from the AVMS Directive 2010/13/EU and its amending Directive 2018/1808 to extend scope online and in particular to video-sharing platforms , who must recognise the AVMS rules for commercial communications relating to recognisability; additionally, Part 4B clause 368Z1 requires that user-generated videos that contain commercial communications, in the event that the service provider is aware of this, must be clearly notified to the user by the service provider

 

 

SOME EDPB GUIDANCE

 

 

 
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International

 

CONTEXT

 

The same principle that applies in paid space also applies in non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. covered by the rules. Clearly, much of a brand website may not be advertising, but it's important to understand what may 'qualify', and different countries have different definitions. In this international context the most relevant definition is from the ICC Code: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. The other aspect of this environment that can be subject to regulatory issues is that of 'dialogue' between brand owners and consumers, where Consent and Information requirements may apply; see our General rules sector for specifics

 

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

ICC Advertising and Marketing Communications Code Chapter C Direct Marketing and Digital Marketing Communications

 

Directive 2002/58/EC on privacy and electronic communications

Directive 2000/31/EC on electronic commerce

Directive 2005/29/EC on unfair commercial practices (UCPD)

Directive 2018/1808 amending AVMS Directive 2010/13/EU (AVMSD)

EASA Best Practice Recommendation on Digital Marketing Communications 2015

 

 
Standard rules

 

  • For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • These channel rules are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth-oriented content; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website

 

 
LEGISLATION
 

Directive 2002/58/EC on Privacy and Electronic communications; Article 13

Unsolicited communications

 
  1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
  2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
  3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
  4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
  5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected
 
 
Directive 2000/31/EC on E-commerce: Article 5
General information to be provided
 
  1. In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information
     
(a) The name of the service provider
(b) The geographic address at which the service provider is established
(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
(f) As concerns the regulated professions
 
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
 
(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
  1. In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs
 

 

Section 2: Commercial communications
Article 6
 
Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
 
  1. The commercial communication shall be clearly identifiable as such
  2. The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
  3. Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
  4. Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously
 
 
Article 7. Unsolicited commercial communication
 
  1. In addition to other requirements established by Community law, Member States which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
  2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves
 
 
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Article 7. Misleading omissions (includes reference to 'Invitation to Purchase')

 

  1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise
  2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise
  3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted
  4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:

 

  1. the main characteristics of the product, to an extent appropriate to the medium and the product
  2. the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
  3. the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable
  4. the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence
  5. for products and transactions involving a right of withdrawal or cancellation, the existence of such a right

 

5.   Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material

 
 
Directive 2018/1808 amending the AVMS Directive 

 

  • Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here

  • For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial commnications  

 

 

GUIDANCE

 

EU Guidance/ opinion documents

 

 
 
 
2.2.5. Marketer-owned digital properties
 
As established in the previous sections, all marketing communications, as defined by the ICC Code, fall within the remit of SR systems. It is not, however, always immediately apparent to what extent content on marketer-owned digital properties may constitute marketing communications and thus fall within the remit of the SROs. It should never be automatically assumed that a marketer-owned digital property is a marketing communication in its entirety. The actual content of the marketer-owned digital property must be reviewed to determine that which is marketing communication content and that which is not. For this purpose the following criteria establish whether or not the content, or part of the content of a marketer-owned digital property constitutes a marketing communication:
 
  • Claims (implied, direct, written, spoken and visual) about products or marketers, where the claim is not made in the context of editorial content, annual reports, CSR reports, or similar
  • Where they pertain to the marketing communications and commercial practices covered by the Unfair Commercial Practices Directive (for example, price promotions and invitations to purchase)
  • Third-party UGC and/or viral marketing that has been distributed or endorsed by the marketer
  • Marketing communications that have previously appeared, in the same or comparable form, on other media platforms, including online media platforms

 

 

SOCIAL NETWORK SITES

 

  1. FACEBOOK

                                        

  1. INSTAGRAM 

 

  1. TWITTER:

 

  1. YOUTUBE: advertiser friendly content guidelines here:

 

  1. SNAPCHAT:
  1. GOOGLE +

  1. TIK TOK

 

 

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7. Native Advertising

Sector

General

SECTION C: NATIVE ADVERTISING

 

 

CONTEXT

 

From an ASA Opinion piece Jan 2016, native advertising is ‘content paid for and controlled by brands, but which looks like news, features, reviews, entertainment and other content that surrounds it online.’ So this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience

 

SUMMARY

 

This is a sensitive and topical issue, with a number of high profile recent adjudications, shown below. The core issue is that of recognition of advertising, set out under the linked CAP Code Section 2; the BCAP equivalent is here. CAP/ the ASA are particular on the way in which advertising is identified as such: ‘Some examples of labels that are likely to be acceptable are: ‘Advertisement Promotion’, ‘Advertisement Feature’ or, in some online media, ‘#ad’.’ The law in the form of The Consumer Protection from Unfair Trading Regulations 2008 (CPRs), also prohibits under Schedule I, article 11, that a trader has paid for a promotion without making that clear

 

KEY RULES 

 

  •  ‘Native’ advertising, like any other advertising, is subject to the Content rules; the key general rule, spelt out below, is that of identifiability/ disclosure
  • The BCAP Code Section 2 covers Recognition of Advertising; The Ofcom Code on the Scheduling of Television Advertising and the Ofcom Broadcasting Code (OBC), for both television and radio, contain rules for sponsorship and commercial references that are relevant to this section
  • Rule 9.3 from the OBC states ‘Surreptitious advertising is prohibited’ (Surreptitious advertising involves a reference to a product, service or trade mark within a programme, where such a reference is intended by the broadcaster to serve as advertising and this is not made clear to the audience. Such advertising is likely to be considered intentional if it occurs in return for payment or other valuable consideration to the broadcaster or producer)
  • Product Placement is separately covered; see earlier TV and Radio section 
  • Section 2 of the CAP Code deals with the recognition of marcoms; there’s an Overview here; key clauses follow:

 

  • Marketing communications must be obviously identifiable as such (CAP code, rule 2.1)
  • Unsolicited e-mail marketing communications must be obviously identifiable as marketing communications without the need to open them - see rule 10.6 (CAP code, rule 2.2)
  • Marketing communications must not falsely claim or imply that the marketer is acting as a consumer 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 (CAP code, rule 2.3)
  • Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them ‘advertisement feature (CAP code, rule 2.4)

 

CAP NEWS AND GUIDANCE 

 

  1. From September 2013 CAP News What is native advertising?
  2. See Recognising marketing communications: Overview September 2016
  3. Advertising Guidance 5 December 2016:

 

Recognising ads: Contextually targeted branded content

From the above (click on the links below for explanations of each issue):

Ensure advertorials are distinguishable from editorial content

Do not integrate to such an extent that it is no longer identifiable as an ad

Be wary of terms such as “sponsorship” and “in association with

 

  1. Advertising guidance 13 March 2017:

 

     

From the above (point 3.) Identification of marketing communications

 

  • The Code requires marketing communications to be readily recognisable:
     

2.4 ‘Marketers and publishers must make clear that advertorials are marketing communications, for example by heading them "advertisement feature".

Advertisement features often mirror the format, style and typography of editorial articles contained in the same publication. It is particularly important, therefore, that readers can see at once that what they are looking at is not editorial but an advertisement feature. It could be clear through the context that the material is advertising but, if it isn’t, a label which makes clear the content is a marketing communication is likely to be required. Some examples of labels that are likely to be acceptable are: ‘Advertisement Promotion’, ‘Advertisement Feature’ or, in some online media, ‘#ad’

 

Content of advertisement features

 

  • The content of advertisement features should conform to all the requirements of the Code. It should be legal, decent, honest and truthful. Specifically:
     

3.1 Marketing communications must not materially mislead or be likely to do so

3.6 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims

3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation

 

 RULINGS ON DISCLOSURE

 

  1. ASA adds former Love Islanders to non-disclosure webpage. August 2021. ‘We are adding five former Islanders who break the rules to our dedicated non-disclosure webpage, as part of continued action against influencers who fail to act transparently and who mislead their followers by not labelling ads in their social media posts. The ad rules are clear: it must be obvious to consumers before they read, ‘like’ or otherwise interact with a social media post if what they are engaging with is advertising.’ Click on link for more
  2. Nike U.K. 4 September 2013. A tweet, by the footballer Wayne Rooney, stated "The pitches change. The killer instinct doesn't. Own the turf, anywhere. @NikeFootball #myground pic.twitter.com/22jrPwdgC1". The ASA considered that in the particular context of a tweet by Wayne Rooney the wording of the initial statement was such that in combination with "@NikeFootball" and "#myground", the overall effect was that the tweet was obviously identifiable as a Nike marketing communication
  3. Asda Stores December 2017. An advertorial for Asda, seen on the Mirror’s website www.mirror.co.uk, on 31 August 2017, appeared three-quarters of the way down a web page that began with an article titled “An actual Italian food theme park is opening in Italy and mamma mia hurry up and pass us our fork”. The advertorial was headed “Asda Partnership” in italic font which was the same size as the font used in the body of the article. The advertorial described Asda’s range of Italian food. Small text above the article title at the top of the page stated “Lifestyle > Travel > ASDA Partnership”. The ASA considered the term “Asda Partnership”, which appeared between the editorial and advertorial content, did not adequately convey the commercial nature of the advertorial content to consumers

OTHER GUIDELINES 

 

  • The IAB and Native advertising taskforce released the Native Advertising Playbook which provides recommended industry guidance for advertising disclosure and transparency for ad units most often described as ‘Native’; the disclosure principles reference FTC (US) procedures
  • Content and native disclosure guidelines version 2 - February 2018 from IAB UK: 'These guidelines outline good practice for disclosure of content-based advertising and native ad formats online. They have been updated to reflect changes in online behaviour and media usage, and show how existing principles apply to new and growing advertising environments and approaches – such as influencer marketing
  • IAB Europe’s December 2016 How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of Native ads, some good practice recommendations, and a summary of EU rules and their December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers

 

THE LAW

 

The Consumer Protection from Unfair Trading Regulations 2008 (CPRs), derived from the Unfair Commercial Practices Directive 2005/29/EC, provides in Schedule 1 that a commercial practice ‘in all circumstances considered unfair’ is:

 

  • 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) Art. 11
  • Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer. Art. 22
  • Regulation 6 of the CPRs provides: 1) A commercial practice is a misleading omission if, in its factual context... (a)the commercial practice omits material information, (b)the commercial practice hides material information, (c)the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or (d)the commercial practice fails to identify its commercial intent, unless this is already apparent from the context, and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise

 

 

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International

SECTION C: NATIVE ADVERTISING

 

 

NATIVE

 

Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe's How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of native ads, some good practice recommendations, and a summary of EU rules. General rules, i.e. those that apply to all product sectors, are immediately below

 

APPLICABLE  SELF-REGULATION LEGISLATION AND GUIDANCE

 

ICC Advertising and Marketing Communications Code 2018

Directive 2005/29/EC on Unfair Commercial Practices (UCPD)

Guidance: ICC Guidance on Native Advertising here

IAB Europe Guidance (as above in intro): How to Comply with EU Rules Applicable to Online Native Advertising (December 2016) here

And in December 2021 IAB Europe's Guide to Native Advertising provides 'up-to-date insight into native ad formats and best practices for buyers.' 

 

Standard rules

 

  • For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels; the Native technique is no different in that if it's advertising, it's subject to the rules
  • These channel rules are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website

 

Self-Regulation: key rules from the ICC Code

 

Identification and transparency (Art. 7)

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.

 

Identity of the marketer (Art. 8)

 

  • The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called “teaser advertisements”).

 

Legislation 

 

Unfair Commercial Practices Directive 2005/29/EC, Annex I

Commercial practices which are in all circumstances considered unfair

 

  • 11. 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). This is without prejudice to Council Directive 89/552/EEC

  • 22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer

 

 

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8. Telemarketing

Sector

General

 

 

Following feedback, we no longer cover Telemarketing

International

 

Following feedback, we no longer cover Telemarketing 

9. Direct Postal Mail

Sector

 

CORONAVIRUS: ROYAL MAIL STATEMENT TO ADVERTISERS 9/4/20

https://mail.dma.org.uk/5KA9-ZJY-C02ZAVVF7/cr.aspx

 

 

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General

SECTION C: DIRECT POSTAL MAIL

 

 

OVERVIEW

 

If any processing of data includes personal data (that which can identify an individual) than it may be subject to the GDPR, recognised and supplemented in the UK by the Data Protection Act 2018. Valuable guidance is provided by the ICO’s Guide to the GDPR. The ICO’s Direct Marketing Guidance, updated for GDPR, covers Marketing Mail under paras 154 -157. Content of Direct Mail marketing communications is subject to CAP Code rules; content-related legislation applies to all media, except that which identifies broadcast channels 

 

  Privacy issues should be reviewed with specialist advisors

 

 

Opting out

 

  • From the ICO’s Direct Marketing Guidance: 'Individuals can register their address with the Mail Preference Service (MPS), which works in a similar way to the TPS. The DPA does not specifically require organisations to screen against the MPS, but it is good practice to do so and will save time and money. It is, however, a requirement under the DMA code and the CAP code, and we are aware that the DMA considers it is also a legal requirement under the Consumer Protection from Unfair Trading Regulations 2008 (see below under ‘Bombardment’). We therefore advise organisations to screen against the MPS to ensure compliance with the first principle requirement to act fairly and lawfully (Para 156)'
  • DMA Members must ensure that lists containing names and contact details are not used for marketing purposes unless the list has been cleaned against the relevant preference services: TPS, MPS, CTPS, BMPS, FPS and Your Choice (DMA Code, rule 1.3)

 

 
CAP Code Section 10

 

Extracts only 

 

  • The CAP Code Section 10 Use of data for marketing applies in the context of the use of data. These rules were amended in November 2018 to reflect the GDPR/ Data Protection Act 2018; some of the rules apply only to electronic communications 
  • Marketers must not make persistent and unwanted marketing communications by telephone, fax, mail, e-mail or other remote media (CAP Code rule 10.1)
  • Consumers are entitled to have their personal data suppressed so that they do not receive marketing. Marketers must ensure that, before use, databases have been run against relevant suppression files within a suitable period. Marketers must hold limited information, for suppression purposes only, to ensure that no other marketing communications are sent to those consumers as a result of information about those consumers being reobtained through a third party (CAP Code rule 10.10)

 

 

Consent 

 

And the right to object

 

  • Under the GDPR, a ‘lawful basis’ by which personal data can be processed is the consent of the data subject to the processing of his or her personal data for one or more specific purposes (art.6.1 a)
  • The ICO’s Guide to the GDPR provides this guidance on Consent:
    https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/lawful-basis-for-processing/consent/
  • The ICO also state: under ‘GDPR Update’ in the Marketing Mail section in Direct Marketing Guidance: ‘If you are relying on consent to send marketing mail then the individual has the right to withdraw their consent at any time. It must be as easy to withdraw consent as it was to give it. See our GDPR consent guidance for further details.
  • The GDPR also gives individuals the right to object at any time to processing of their personal data for the purposes of direct marketing. The right to object to marketing is absolute and you must stop processing for these purposes when someone objects. See our right to object guidance for further details.’

 

 
Required information 

 

  • Under Rule 2.1 the CAP Code provides that ‘marketing communications must be obviously identifiable as such’, and from Recognising marketing communications: Overview: ‘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.  For more information see 'Claims on Envelopes'.’
  • How to push the envelope (without breaking the rules). CAP News, 27 Aug 2020. Includes key rulings on the issue of identification
  • Members must clearly identify the advertiser on any one-to-one marketing communication that they send or instigate (DMA Code, rule 2.2)
  • If the mailing constitutes an 'invitation to purchase' (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), Regulation 6 of The Consumer Protection from Unfair Trading Regulations 2008 applies, meaning that certain information must be included in the marcom. Regulation 6 requirements and the CAP Code equivalent from Misleadingness Section 3 have been assembled in a summary here

 

 

Bombardment

 

  • It contravenes the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) to make ‘persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified to enforce a contractual obligation (No 26, (Sch. 1). Reflected in CAP Code rule 10.1

 

 
B2B

 

  • Under GDPR, ‘recipient’ means a natural or legal person (i.e. B2C, B2B), public authority, agency or another body, to which the personal data are disclosed, whether a third party or not (Art.4.9 extract)
  • The MPS only applies to consumers who do not wish to receive unsolicited mail

 

 

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International

 

Applicable Self-Regulation and legislation 

 

  • National 'Robinson lists' or opt-out lists
  • The General Data Protection Regulation 2016/679 for the processing of personal data
  • Directive 2005/29/EC on unfair commercial practices (UCPD) 

 

 

Standard rules

 

  • For Content rules in all channels, refer to the earlier Content Section B. The principal source of general international Content rules is the ICC Advertising and Marketing Communications Code, which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • The channel rules set out here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as Alcohol or Gambling can be found under their respective headings on the main website

 

 

Article 19 ICC Code (in part): Data Protection and Privacy applies. Extracts are set out under the earlier Direct Electronic Communications section, or check the ICC Advertising and Marketing Communications Code linked above

 

 

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Legislation

 

As Direct Mail will frequently include offers, when trhat's the case the provisions related to 'Invitations to Purchase' in the Unfair Commercial Practices Directive may apply. Extracts are:

 

4.   In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:

 

  1. the main characteristics of the product, to an extent appropriate to the medium and the product
  2. the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
  3. the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable
  4. the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence
  5. for products and transactions involving a right of withdrawal or cancellation, the existence of such a right

 

5.   Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material

 

  • In the event of processing personal data (i.e. data that will/ can identify an individual) the required legal basis for processing that data may be subject to the GDPR; check privacy issues with specialist advisors

 

 

Guidance

 

Guidelines on consent under Regulation 2016/679 (May 2020)

 
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10. Event Sponsorship/ Field Marketing

Sector

General

SECTION C: EVENTS/ SPONSORSHIP

 

 

  • A marketer’s own materials that are ‘fixed’ at ‘point of sale’ or appear in physical space that the marketer owns, are considered beyond the scope of the Code unless they include a promotion 
  • A marketer’s own vehicles, including delivery vans and company cars, are usually considered akin to ‘point of sale’ material because, like their own premises it is space that they own rather than ‘paid for’ advertising space. However, if the sole purpose of the vehicle is to advertise and it serves no other function (e.g. a mobile ‘A’ board continually parked in a field), the ASA could potentially consider it within remit
  • Materials that can be taken away, such as leaflets, brochures, carrier bags and business cards remain within the scope of the Code

 

 

 

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International

 

 

 

Self-Regulation

 

 

 

B1: Principles governing sponsorship

 

  • All sponsorship should be based on contractual obligations between the sponsor and the sponsored party. Sponsors and sponsored parties should set out clear terms and conditions with all other partners involved, to define their expectations regarding all aspects of the sponsorship deal
  • Sponsorship should be recognisable as such
  • The terms and conduct of sponsorship should be based upon the principle of good faith between all parties to the sponsorship
  • There should be clarity regarding the specific rights being sold and confirmation that these are available for sponsorship from the rights holder. Sponsored parties should have the absolute right to decide on the value of the sponsorship rights that they are offering and the appropriateness of the sponsor with whom they contract

 

B2: Autonomy and self-determination

 

  • Sponsorship should respect the autonomy and self-determination of the sponsored party in the management of its own activities and properties, provided the sponsored party fulfills the obligations set out in the sponsorship agreement
 

B3: Imitation and confusion

 

  • Sponsors and sponsored parties, as well as other parties involved in a sponsorship, should avoid imitation of the representation of other sponsorships where such imitation might mislead or generate confusion, even if applied to non-competitive products, companies or events

 

 

 B4: 'Ambushing' of sponsored properties

 

  • No party should seek to give the impression that it is a sponsor of any event or of media coverage of an event, whether sponsored or not, if it is not in fact an official sponsor of the property or of media coverage
  • The sponsor and sponsored party should each take care to ensure that any actions taken by them to combat ‘ambush marketing’ are proportionate and that they do not damage the reputation of the sponsored property nor impact unduly on members of the general public

 

 

B5: Respect for the sponsorship property and the sponsor

 

  • Sponsors should take particular care to safeguard the inherent artistic, cultural, sporting or other content of the sponsorship property and should avoid any abuse of their position that might damage the identity, dignity, or reputations of the sponsored party or the sponsorship property
  • The sponsored party should not obscure, deform or bring into disrepute the image or trade- marks of the sponsor, or jeopardise the goodwill or public esteem associated with them

 

 

B6: The sponsorship audience

 

  • The audience should be clearly informed of the existence of a sponsorship with respect to a particular event, activity, programme or person and the sponsor’s own message should not be likely to cause offence. Due note should be taken of existing professional ethics of the sponsored party
  • This article is not, however, intended to discourage sponsorship of avant-garde or potentially controversial artistic/cultural activities, or to encourage sponsors to exercise censorship over a sponsored party’s message

 

 

B7: Data capture/ data sharing

 

  • If an individual’s data are used in connection with sponsorship, the provisions of article 19  are applicable

 

 

B8: Artistic and historical objects

 

  • Sponsorship should not be conducted in such a way as to endanger artistic or historical objects
  • Sponsorship that aims to safeguard, restore, or maintain cultural, artistic or historical properties or their diffusion, should respect the public interest related to them

 

 

B9: Social and environmental sponsorship

 

  • Both sponsors and sponsored parties should take into consideration the potential social or environmental impact of the sponsorship when planning, organising and carrying out the sponsorship.
  • Any sponsorship message fully or partially based on a claim of positive (or reduced negative) social and/or environmental impact should be substantiated in terms of actual benefits to be obtained. Parties to the sponsorship should respect the principles set out in the ICC Business Charter for Sustainable Development.
  • Any environmental claim made with respect to the sponsorship should conform to the principles set out in Chapter D, Environmental Claims in Marketing communications

 

 

B10: Charities and humanitarian sponsorship

 

 

  • Sponsorship of charities and other humanitarian causes should be undertaken with sensitivity and care, to ensure that the work of the sponsored party is not adversely affected

 

 

B11: Multiple sponsorship

 

  • Where an activity or event requires or allows several sponsors, the individual contracts and agreements should clearly set out the respective rights, limits and obligations of each sponsor, including, but not limited to, details of any exclusivity
  • In particular, each member of a group of sponsors should respect the defined sponsorship fields and the allotted communication tasks, avoiding any interference that might unfairly alter the balance between the contributions of the various sponsors
  • The sponsored party should inform any potential sponsor of all the sponsors already a party to the sponsorship. The sponsored party should not accept a new sponsor without first ensuring that it does not conflict with any rights of sponsors who are already contracted and, where appropriate, informing the existing sponsors

 

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11. Sales Promotion

Sector

General

SECTION C: SALES PROMOTIONS

 

 

Running chance-based prize promotions in Northern Ireland? CAP News 23 June, 2022. Last month, changes to Northern Ireland (NI) gambling law by the Betting, Gaming, Lotteries and Amusements (Amendment) Act (Northern Ireland) 2022 came into force. These important changes affect promoters running NI or UK-wide chance-based promotions.

 

CONTEXT

 

This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National Self-Regulatory codes and Consumer Protection legislation, for example, are checked for any provisions that affect SP and included below. In the case of the U.K., promotional marketing rules are anyway included in the Self-Regulatory codes. The CAP Code, specifically Section 8, applies to promotional marketing wherever these promotions appear; see this Advice Online entry: https://www.asa.org.uk/advice-online/promotional-marketing-general.html

 

Lotteries

 

From Section 8: Promoters should take legal advice before embarking on promotions with prizes, including competitions, prize draws, instant-win offers and premium promotions, to ensure that the mechanisms involved do not make them unlawful lotteries (see the Gambling Act 2005 for Great Britain and the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985 (as amended) for Northern Ireland). Section 14 of the Gambling Act explains skill and chance parameters. Broadly, promotional schemes (from manufacturers) requiring a purchase to take part, and offering prizes only on the basis of random chance are considered a lottery and are generally illegal

 

Key sources

 

  • Promotional material must observe the Content rules in Section B as well as specific promotional rules
  • in this context, the key set of rules is from Section 8 of the CAP Code Promotional Marketing; some aspects of the CPRs apply - see base of this section 
  • The Code applies to all stages of the promotion, not just the initial marketing and applies anywhere that a promotion appears (including social media). The specific rules which are relevant will depend on the kind of promotion being run but the core principles are the same whether it’s a discount voucher offer or a long term loyalty scheme (from Section 8)

 

Extracts from Section 8 follow; we have selected the core rules; best to check the full Section 8, linked above, and in PDF form here 

 

  • 8.2. Promoters must conduct their promotions equitably, promptly and efficiently and be seen to deal fairly and honourably with participants and potential participants. Promoters must avoid causing unnecessary disappointment
  • 8.5 Promotions must not be socially undesirable to the audience addressed by encouraging excessive consumption or irresponsible use

 

Availability 

 

  • 8.9 Phrases such as “subject to availability” do not relieve promoters of their obligation to do everything reasonable to avoid disappointing participants
  • 8.10 Promoters must be able to demonstrate that they have made a reasonable estimate of the likely response and either that they were capable of meeting that response or that consumers had sufficient information, presented clearly and in a timely fashion, to make an informed decision on whether or not to participate - for example regarding any limitation on availability and the likely demand
  • 8.11 If promoters rely on being able to meet the estimated response but are unable to supply demand for a promotional offer because of an unexpectedly high response or some other unanticipated factor outside their control, they must ensure relevant timely communication with applicants and consumers and, in cases of any likely detriment, offer a refund or a reasonable substitute product
  • 8.12 Promoters must not encourage the consumer to make a purchase or series of purchases as a precondition to applying for promotional items if the number of those items is limited, unless the limitation is made sufficiently clear at each stage for the consumer accurately to assess whether participation is worthwhile
  • 8.13 If a prize promotion is widely advertised, the promoter must ensure the widespread availability of the requisite forms and any goods needed to establish proof of purchase

 

Significant conditions

 

8.17 All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. Significant conditions or information may, depending on the circumstances, include:

 

  • 8.17.1 How to participate. How to participate, including significant conditions and costs, and other major factors reasonably likely to influence consumers' decision or understanding about the promotion
  • 8.17.2 Free-entry route explanation. Any free-entry route should be explained clearly and prominently
  • 8.17.3. Start date. The start date, if applicable
  • 8.17.4 Closing date


 

  • 8.17.4.a A prominent closing date, if applicable, for purchases and submissions of entries or claims. Closing dates are not always necessary, for example: comparisons that refer to a special offer (whether the promoter's previous offer or a competitor's offer) if the offer is and is stated to be "subject to availability"; promotions limited only by the availability of promotional packs (gifts with a purchase, extra-volume packs and reduced-price packs) and loyalty schemes run on an open-ended basis
  • 8.17.4.b Unless the promotional pack includes the promotional item or prize and the only limit is the availability of that pack, prize promotions and promotions addressed to or targeted at children are likely to need a closing date
  • 8.17.4.c Promoters must be able to demonstrate that the absence of a closing date will not disadvantage consumers
  • 8.17.4.d Promoters must state if the deadline for responding to undated promotional material will be calculated from the date the material was received by consumers, if the omission of that information is likely to mislead
  • 8.17.4.e Closing dates must not be changed unless unavoidable circumstances beyond the control of the promoter make it necessary and either not to change the date would be unfair to those who sought to participate within the original terms, or those who sought to participate within the original terms will not be disadvantaged by the change
     
  • 8.17.5 Proof of purchase. Any proof of purchase requirements
  • 8.17.6 Prizes and gifts. Promoters must specify the number and nature of prizes or gifts, if applicable. If the exact number cannot be predetermined, a reasonable estimate of the number and a statement of their nature must be made. Promoters must:
     
  • 8.17.6.a distinguish those prizes that could be won, including estimated prize funds, from those prizes that will be won by someone by the end of the promotional period and
  • 8.17.6.b state whether prizes are to be awarded in instalments or are to be shared among recipients
     
  • 8.17.7 Restrictions. Geographical, personal or technological restrictions such as location, age or the need to access the Internet. Promoters must state any need to obtain permission to enter from an adult or employer
  • 8.17.8 Availability. The availability of promotional packs if it is not obvious; for example, if promotional packs could become unavailable before the stated closing date of the offer. Any limitation on availability should be sufficiently clear for a consumer to assess whether participation is worthwhile
  • 8.17.9 Promoter's name and address. Unless it is obvious from the context or if entry into an advertised promotion is only through a dedicated website containing that information in an easily found format, the promoter's full name and correspondence address must be stated
  • 8.18 Marketing communications that include a promotion and are significantly limited by time or space must include as much information about significant conditions as practicable and must direct consumers clearly to an easily accessible alternative source where all the significant conditions of the promotion are prominently stated. Participants should be able to retain those conditions or easily access them throughout the promotion
 
Prize promotions

 

See Promotional marketing: Prize winners Advice online 26 October 2021

 

  • 8.19. Promoters must not claim that consumers have won a prize if they have not. The distinction between prizes and gifts, or equivalent benefits, must always be clear. Ordinarily, consumers may expect an item offered to a significant proportion of participants to be described as a ‘gift’, while an item offered to a small minority may be more likely to be described as a ‘prize’. If a promotion offers a gift to a significant proportion and a prize to a minority, special care is needed to avoid confusing the two: the promotion must, for example, state clearly that consumers “qualify” for the gift but have merely an opportunity to win the prize. If a promotion includes, in a list of prizes, a gift for which consumers have qualified, the promoter must distinguish clearly between the two
  • 8.20 Promoters must not exaggerate consumers' chances of winning prizes. They must not include a consumer who has been awarded a gift in a list of prize winners.
  • 8.21 Promoters must not claim or imply that consumers are luckier than they are. They must not use terms such as "finalist" or "final stage" in a way that implies that consumers have progressed, by chance or skill, to an advanced stage of a promotion if they have not
  • 8.21.1 Promoters must not falsely claim or imply that the consumer has already won, will win or will on doing a particular act win a prize (or other equivalent benefit) if the consumer must incur a cost to claim the prize (or other equivalent benefit) or if the prize (or other equivalent benefit) does not exist
  • 8.22 Promoters must not claim that consumers must respond by a specified date or within a specified time if they need not
  • 8.23 Promoters must avoid rules that are too complex to be understood and they must only exceptionally supplement or amend conditions of entry with extra rules. In such circumstances, promoters must tell participants how to obtain the supplemental or amended rules and they must contain nothing that could reasonably have influenced consumers against buying or participating
  • 8.24 Promoters of prize draws must ensure that prizes are awarded in accordance with the laws of chance and, unless winners are selected by a computer process that produces verifiably random results, by an independent person, or under the supervision of an independent person
  • 8.25 Participants in instant-win promotions must get their winnings at once or must know immediately what they have won and how to claim without delay, cost or administrative barriers. Instant-win tickets, tokens or numbers must be awarded on a fair and random basis and verification must take the form of an independently audited statement that all prizes have been distributed, or made available for distribution, in that manner
  • 8.26 In competitions, if the selection of a winning entry is open to subjective interpretation, an independent judge, or a panel that includes one independent member must be appointed. In either case, the judge or panel member must be demonstrably independent, especially from the competition's promoters and intermediaries and from the pool of entrants from which the eventual winner is picked. Those appointed to act as judges should be competent to judge the competition and their full names must be made available on request
  • 8.27 Withholding prizes (see rules 8.15.1 and 8.28.2) is justified only if participants have not met the qualifying criteria set out clearly in the rules of the promotion.
  • 8.28 Participants must be able to retain conditions or easily access them throughout the promotion. In addition to rule 8.17, prize promotions must specify on all marketing communications or other material referring to them, the following information, clearly before or at the time of entry, where the omission of any of the specified items is likely to mislead
     
    • 8.28.1 any restriction on the number of entries
    • 8.28.2 whether the promoter may substitute a cash alternative for any prize
    • 8.28.3 if more than 30 days after the closing date, the date by which prizewinners will receive their prizes
       
  • 8.28.4 how and when winners will be notified of results
  • 8.28.5 Promoters must either publish or make available on request the name and county of major prizewinners and, if applicable, their winning entries except in the limited circumstances where promoters are subject to a legal requirement never to publish such information. Promoters must obtain consent to such publicity from all competition entrants at the time of entry.  Prizewinners must not be compromised by the publication of excessive personal information
  • 8.28.6 in a competition, the criteria and mechanism for judging entries (for example, the most apt and original tiebreaker)
  • 8.28.9 any intention to use winners in post-event publicity

 

Key CAP guidance 

 

Promotional marketing: General. April 2019; this guidance gives a brief summary of the key points and where to get more information. Extracts are below (click on the links for more information) 

 

 

Other CAP guidance

 

Back in Black Friday – Getting your promotional offers in line. CAP News 20 Oct 2022

Promotional marketing: Prize winners Advice online 26 Oct 2021

Running prize promotions on social media Resource page/ checklist issued Oct 2021

Like, tag, comment, follow, and share to win! Selecting winners in social media promotions CAP News 02 Sep 2021

Six ways to win at Promotional Marketing CAP News 11 July 2019

 Guidance on ‘free trial’ or other promotional offer subscription models Advertising guidance Nov 2017

Promotional Marketing for the Win CAP News 15 Aug 2018

Promotional marketing: Competitions Advice online 19 Oct 2018

 Promotional marketing: prize draws Advice online 24 Sep 2021

Keep your “free” claims problem-free. CAP News 30 Sep 2021

Keeping your “Free Trials” trial free CAP News 19 May 2022

 

Relevant rulings 

 

  1. I Saw It First. Fashion retail. Incorrect promotional pricing. March 2021. I Saw it First Ltd explained that the overlay was not applicable to the 75% off promotion and was shown in error on that day for a couple of minutes. I Saw it First Ltd further explained that they had added the overlay to a category and were removing the products that were no longer applicable. They stated that going forward they would ensure products were always moved out before promotional updates were completed.
  2. An Instagram post by PrettyLittleThing on 10 February 2021, ruling September 1. The promotion was considered not to have been administered fairly and therefore transgressed rules 8.2, 8.14 and 8.24
  3. A Cadbury's promotion on www.cadburyinventor.co.uk, seen on 19 July 2021, that offered consumers the opportunity to design their own chocolate bar, featured terms and conditions which included the judging process. The complainant requested the names of the judges on the panel but was not provided with them. Ruling here, and see 8.26 above 

 

The law

 

There are some statutory requirements, largely reflected in self-regulation but not necessarily in this promotional marketing context, that apply. These are to do with Pricing and with Invitation to Purchase, both from the Consumer Protection from Unfair Trading Regulations 2008

 

Pricing and other promotional practices

 

from Schedule I: Commercial practices which are in all circumstances considered unfair

 

  • 5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply, or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)
  • 6.  Making an invitation to purchase products at a specified price and then:

 

(a) refusing to show the advertised item to consumers,

(b) refusing to take orders for it or deliver it within a reasonable time, or

(c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch)

 

  • 7.  Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice
  • 15.  Claiming that the trader is about to cease trading or move premises when he is not
  • 16.  Claiming that products are able to facilitate winning in games of chance
  • 19.  Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent
  • 20.  Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item
  • 31.  Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:

 

(a) there is no prize or other equivalent benefit, or

(b) taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost

 

 

Invitation to purchase

 

Rules have been shown in a number of places in this database, and are summarised here:

http://www.g-regs.com/downloads/UKInv2Purchase.pdf

 

 

 

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International

 

 

CONTEXT

 

This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National Self-Regulatory codes and Consumer Protection legislation, for example, are checked for any provisions that affect SP and included below. Content in SP material is likely to be subject to the rules set out in the earlier Section B.

 

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

ICC Advertising and Marketing Communications Code 2018, Chapter A Sales Promotion, Chapter C Direct Marketing

For promotions and contests on social media, refer to Own Websites channel; SNS

Directive 2005/29/EC on Unfair Commercial Practices (UCPD)

Directive 98/6/EC on the Prices of Products offered to Consumers

 

 

SELF-REGULATORY CLAUSES 

 

ICC Code Chapter A Sales Promotion 

 

A1: Principles governing sales promotions

 

  • All sales promotions should deal fairly and honourably with consumers
  • All sales promotions should be so designed and conducted as to meet reasonable consumer expectation associated with the advertising or promotion thereof
  • The administration of sales promotions and the fulfilment of any obligation arising from them should be prompt and efficient
  • The terms and conduct of all sales promotions should be transparent to all participants
  • All sales promotions should be framed in a way that is fair to competitors and other traders in the market
  • No promoters, intermediaries or others involved should do anything likely to bring sales promotions into disrepute

 

 

A2: Terms of the offer

 

Sales promotions should be so devised as to enable the consumer to identify the terms of the offer easily and clearly, including any limitations. Care should be taken not to exaggerate the value of the promotional item or to obscure or conceal the price 
of the main product

 

 

A3: Presentation

 

A sales promotion should not be presented in a way likely to mislead those to whom it is addressed about its value, nature or the means of participation. Any marketing communication regarding the sales promotion, including activities at the point of sale, should be in strict accordance with the General Provisions of the Code (also set out in Content section)

 

 

A4: Administration of promotions

 

Sales promotions should be administered with adequate resources and supervision, anticipated to be required, including appropriate precautions to ensure that the administration of the offer meets the consumers’ reasonable expectations

 

In particular:

 

  • the availability of promotional items should be sufficient to meet anticipated demand consistent with the express terms of the offer. if delay is unavoidable, consumers should be advised promptly and necessary steps taken to adjust the promotion of the offer. Promoters should be able to demonstrate that they have made, before the event, a reasonable estimate of the likely response. Where a purchase or a series of purchases are a precondition for obtaining the promotional item, promoters should ensure promotional items are sufficiently available to match the number of purchases being made;
  • defective goods or inadequate services should be replaced, or appropriate financial compensation given. Any costs reasonably incurred by consumers as a direct result of any such shortcoming should be reimbursed immediately on request;
  • complaints should be efficiently and properly handled

 

 

A5: Safety and suitability

 

  • Care should be taken to ensure that promotional items, provided they are properly used, do not expose consumers, intermediaries, or any other persons or their property to any harm or danger
  • Promoters should ensure that their promotional activities are consistent with the principles of social responsibilities contained in the General Provisions, and in particular take reasonable steps to prevent unsuitable or inappropriate materials from reaching children

 

 

A6: Presentation to consumers

 

  • Complex rules should be avoided. Rules should be drawn up in language that consumers can easily understand. The chances of winning prizes should not be overstated

 

 

Information requirements

 

Sales promotions should be presented in such a way as to ensure that consumers are made aware, before making a purchase, of conditions likely to affect their decision to purchase. Information should include, where relevant:

 

  • Clear instructions on the method of obtaining or participating in the promotional offer, e.g. conditions for obtaining promotional items, including any liability for costs, or taking part in prize promotions
  • Main characteristics of the promotional items offered
  • Any time limit on taking advantage of the promotional offer
  • Any restrictions on participation (e.g. geographical or age-related), availability of promotional items, or any other limitations on stocks. in the case of limited availability, consumers should be properly informed of any arrangements for substituting alternative items or refunding money
  • The value of any voucher or stamp offered where a monetary alternative is available
  • Any expenditure involved, including costs of shipping and handling and terms of payment
  • The full name and address of the promoter and an address to which complaints can be directed (if different from the address of the promoter)

 

Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign; before purchasing the promoted product consumers should be informed of how much of the price will be set aside for the cause.

 

 

Information in prize promotions

 

Where a sales promotion includes a prize promotion, the following information should be given to consumers, or at least made available on request, prior to participation and not conditional on purchasing the main product:

 

  • Any rules governing eligibility to participate in the prize promotion
  • Any costs associated with participation, other than for communication at or below standard rate (mail, telephone etc.)
  • Any restriction on the number of entries
  • The number, value and nature of prizes to be awarded and whether a cash alternative may be substituted for a prize
  • In the case of a skill contest, the nature of the contest and the criteria for judging the entries
  • The selection procedure for the award of prizes
  • The closing date of the competition
  • When and how the results will be made available;
  • Whether the consumer may be liable to pay tax as a result of winning a prize
  • The time period during which prizes may be collected
  • Where a jury is involved, the composition of the jury
  • Any intention to use winners or winning contributions in post-event activities and the terms on which these contributions may be used

 

The remaining articles of this chapter, A7 to A10 inclusive, are available here. These cover:

 

A7. Presentation to Intermediaries

A8. Particular Obligations of Promoters

A9. Particular Obligations of Intermediaries

A10. Responsibility

 

 

Chapter C Direct Marketing

 

3 relevant clauses extracted

 

 

C3: The offer

 

  • The terms and conditions of any offer made should be transparent to consumers and other participants. The fulfilment of any obligation arising from the offer should be prompt and efficient. All offers involving promotional items should be framed in strict accordance with the rules of Chapter A: Sales Promotion

 

 

C4 : Presentation

 

  • Wherever appropriate, the essential points of the offer should be simply and clearly summarised together in one place. Essential points of the offer may be clearly repeated, but should not be scattered throughout the promotional material
  • When the presentation of an offer also features products not included in the offer, or where additional products need to be purchased to enable the consumer to use the product on offer, this should be made clear in the original offer
  • Consumers should always be informed beforehand of the steps leading to the placing of an order, a purchase, the concluding of a contract or any other commitment. If consumers are required to provide data for this purpose, they should be given an adequate opportunity to check the accuracy of their input before making any commitment
  • Where appropriate, the marketer should respond by accepting or rejecting the consumer’s order
  • Software or other technical devices should not be used to conceal or obscure any material factor, e.g. price and other sales conditions, likely to influence consumers’ decisions. Before making any commitment the consumer should be able to easily access the information needed to understand the exact nature of the product, as well as the purchase price, shipping and other costs of purchase

 

 

C17:  Substitution of products

 

  • If a product becomes unavailable for reasons beyond the control of the marketer or operator, another product may not be supplied in its place unless the consumer is informed that it is a substitute and unless such replacement product has materially the same, or better, characteristics and qualities, and is supplied at the same or a lower price. In such a case, the substitution and the consumer’s right to return the substitute product at the marketer’s expense should be explained to the consumer

 

 

LEGISLATIVE CLAUSES

 

As promotional activity will often include e.g. special pricing measures, we have extracted from the Unfair Commercial Practices Directive 2005/29/EC those clauses from Annex I (practices which are in all circumstances considered unfair) most relevant to promotional scenarios

 

5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)

6. Making an invitation to purchase products at a specified price and then:
 

(a) refusing to show the advertised item to consumers; or

(b) refusing to take orders for it or deliver it within a reasonable time or

(c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch)

 

7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice

15. Claiming that the trader is about to cease trading or move premises when he is not

16. Claiming that products are able to facilitate winning in games of chance

19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent

20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item

31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:

 

there is no prize or other equivalent benefit, or

taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost

 

 

 

Directive 98/6/EC on the Prices of Products offered to Consumers (PPD)

 

Article 1

 

The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices

 

Article 2

 

For the purposes of this Directive:

 

(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;

(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products

(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer

(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity

(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity

 

 

Article 3

 

  1. The selling price and the unit price shall be indicated for all products referred to in Article 1, the indication of the unit price being subject to the provisions of Article 5. The unit price need not be indicated if it is identical to the sales price
  2. Member States may decide not to apply paragraph 1 to:

 

— products supplied in the course of the provision of a service

— sales by auction and sales of works of art and antiques

 

  1. For products sold in bulk, only the unit price must be indicated
  2. Any advertisement which mentions the selling price of products referred to in Article 1 shall also indicate the unit price subject to Article 5

 

Article 4

 

  1. The selling price and the unit price must be unambiguous, easily identifiable and clearly legible. Member States may provide that the maximum number of prices to be indicated be limited
  2. The unit price shall refer to a quantity declared in accordance with national and Community provisions

 

Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight

 

Article 5

 

  1. Member States may waive the obligation to indicate the unit price of products for which such indication would not be useful because of the products' nature or purpose or would be liable to create confusion
  2. With a view to implementing paragraph 1, Member States may, in the case of non-food products, establish a list of the products or product categories to which the obligation to indicate the unit price shall remain applicable

 

 

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Read more

D. Advice & Clearance

General

SECTION D SRO SERVICES

 

 

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

 

 

WEBSITE AUDITS

 

 

CAP also offers, at a fee, full Website Audits:

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

As well as online eLearning courses on various subjects:

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

Overview here:

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

 

 

PRE-CLEARANCE

 

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

 

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

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

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

 

Clearcast is improving the Ad Clearance Process

 

In 2022 there will be a change to the ad clearance process which will affect where agencies and advertisers upload their final clocked ad and its associated metadata. This change will be managed by a new system, The Clearcast Library.
 
What’s The Library?

 

The Clearcast Library is a centralised collection of final clocked, broadcast-quality TV and VOD ads that feeds into The Clearcast CopyCentral system for final clearance. It’s a fully cloud-based platform that can be accessed across all devices and has been designed to make the process of getting ads to air simpler and faster. The Library also ensures that the ad cleared can be verified as the ad to be aired and keeps a record of all cleared ads for future reference. Read more here.

 

 

DISTRIBUTION

 

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

 

 

 

International

 

The ICAS Global Factbook of Self-Regulatory Organizations 2019

 

EASA (European Advertising Standards Alliance)

http://www.easa-alliance.org/

 

EASA membership

http://www.easa-alliance.org/members

 

Link to Best Practice Recommendations

http://www.easa-alliance.org/products-services/publications/best-practice-guidance

 

Appendix 2: The EASA Statement of Common Principles and Operating Standards of Best Practice (May 2002)

http://www.easa-alliance.org/sites/default/files/EASA%20Common%20Principles%20and%20Operating%20Standards%20of%20Best%20Practice.pdf

 

Appendix 3: The EASA Best Practice Self-Regulatory Model (April 2004)

http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Self-Regulatory%20Model.pdf

 

EASA Digital Marketing Communications Best Practice Recommendation 

http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Recommendation%20on%20Digital%20Marketing%20Communications.pdf

 

EASA Best Practice Recommendation on Online Behavioural Advertising

http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Recommendation%20on%20Online%20Behavioural%20Advertising_0.pdf

 

EASA Best Practice Recommendation on Influencer Marketing

https://www.easa-alliance.org/sites/default/files/EASA%20BEST%20PRACTICE%20RECOMMENDATION%20ON%20INFLUENCER%20MARKETING_2020_0.pdf

 

 

 

 

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E. Links

Sector

General

SECTION E SOURCES/ LINKS

 

 

EUROPEAN LEGISLATION

 

GDPR

 

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

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

 

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

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

 

European Data Protection Authority

Article 29 Working Party/ EDPB





The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:

https://edpb.europa.eu/.

All documents from the former Article 29 Working Party remain available on this newsroom.

Article 29 Working Party archives from 1997 to November 2016: 

http://ec.europa.eu/justice/article-29/documentation/index_en.htm.

Four more recent and significant documents:

 

 

 

Commercial practices: UCPD


Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ UCPD). This is the legislation that most impacts marketing and advertising in Europe and whose origins form the foundations of Self-Regulatory regimes. The core provisions relate to unfair commercial practices, defined as ‘likely to materially distort the economic behaviour with regard to the product of the average consumer.’ In turn, unfair commercial practices are those that:

 

  1. are misleading (misleading actions or misleading by omission) as set out in Articles 6 and 7, or
  2. are aggressive as set out in Articles 8 and 9: ‘use of harassment, coercion and undue influence.’ This clause more often relates to ‘active conduct’.

 

Annex I (known as ‘the blacklist’) contains the list of those commercial practices which ‘shall in all circumstances be regarded as unfair’. These are the only commercial practices which can be deemed to be unfair without a case-by-case test (i.e. assessing the likely impact of the practice on the average consumer's economic behaviour). The list includes e.g. encouragement to children to ‘pester’ (28), clear identification of commercial source in advertorial (11) and making ‘persistent and unwanted solicitations’ (26). The UCPD includes several provisions on promotional practices e.g. Article 6 (d) on the existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022. The Directive 2019/2161 is not transposed in the U.K. but applies to goods and services within the EU so will affect retailers providing those to EU consumers.

https://eur-lex.europa.eu/eli/dir/2005/29/oj
EU guidance:
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016SC0163 

 

Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. While this directive does not require very significant changes as far as most commercial communication is concerned, it does set out some important new changes to information requirements under the UCPD, to pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behavior and to price reduction information under Directive 98/6/EC. Directive 2019/2161 also includes important information requirements relating to e.g. search rankings and consumer reviews which do not directly impact this database. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022. The Directive 2019/2161 is not transposed in the U.K. but applies to goods and services within the EU so will affect retailers providing those to EU consumers.

https://eur-lex.europa.eu/eli/dir/2019/2161/oj

 

Pricing

 

Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement  on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked above; these are supposed to be transposed by November 2021 and in force in member states by May 2022. The Directive 2019/2161 is not transposed in the U.K. but applies to goods and services within the EU so will affect retailers providing those to EU consumers.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006

 

Comparative advertising

 

Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. Article 4 of the MCAD provides that comparative advertising is permitted when eight conditions are met. The most significant of those for our purposes are a) it is not misleading within the meaning of Articles 2 (b), 3 and 8 (1) of this Directive or articles 6 and 7 of Directive 2005/29/EC (see above) and b) it compares goods or services meeting the same needs or intended for the same purpose. There are other significant conditions related to denigration of trademarks and designation of origin, imitation and the creation of confusion. Codified version:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114

 

Audiovisual media

 

Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states.  From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013

 

AVMSD amendment

 

Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020. 

https://eur-lex.europa.eu/eli/dir/2018/1808/oj

 

E-privacy

 

Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements

https://eur-lex.europa.eu/eli/dir/2002/58

 

The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector. Article 2 provides amends to the E-privacy Directive above

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136

 

E-privacy Regulation draft (4 November 2020)

 

Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications)

https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CONSIL:ST_9931_2020_INIT&from=EN

 

E-privacy Regulation draft (10 February 2021)

 

Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):

https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf

Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf

February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft

 

E-commerce

 

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce')‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information such as contact details from the ‘service provider’, which information should be made easily, directly and permanently accessible to the recipients of the service’. The Directive also sets out under article 6 more specific information requirements for commercial communications which are part of, or constitute, an information society service. These include identifiability requirements and accessibility to conditions for promotions.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031

 

 

NATIONAL LEGISLATION

 

Consumer protection 

 

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

 

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

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

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

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

Guidance on the 2014 CPRs:

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

 

Business protection

 

The Business Protection from Misleading Marketing Regulations 2008 (SI 2008/1276); entry into force 26/05/2008These regulations (known as BPRs) prohibit misleading business-to-business advertising and set out the conditions under which comparative advertisements (which is any advertisement which identifies a competitor or a competitor’s product) are permitted, implementing Directive 2006/114/EC of the European Parliament and of the Council concerning misleading and comparative advertising (OJ No L376 27.12.2006, p 21) (“the Directive”). The Directive replaces Council Directive 84/450/EEC concerning misleading and comparative advertising (OJ No L250 19.9.84, p 17) and codifies the amendments made to that directive. Council Directive 84/450/EEC was implemented by the Control of Misleading Advertising Regulations 1988 (S.I. 1988/915). Those Regulations are revoked by the Consumer Protection from Unfair Trading Regulations 2008 (S.I. 2008/1277:

http://www.legislation.gov.uk/uksi/2008/1276/contents/made 

Relevant Article: 4 (comparative advertising) formerly Art 3A from Directive 84/450/EEC – transposed by Regulation 4 – on comparative advertising, listing the 8 conditions where comparative advertising can be permitted

Art 3 BPRs also relevant: Prohibition of advertising that misleads traders

 

Pricing

 

Price Marking Order 2004 (SI 2004/102) Entry into force 22/07/2004This Order implements Directive 98/6/EC (above) on consumer protection in the indication of prices of products offered to consumers. Article 4 requires traders to indicate the selling prices of all products offered for sale to consumers. Article 1 defines the selling price as the final price including VAT and other taxes. Article 6 requires selling and unit prices to be indicated in sterling. Article 7 requires prices and other indications required under the Order to be given in a clear and unambiguous manner. The Order includes specific provisions relating to general price reductions (article 9).

http://www.legislation.gov.uk/uksi/2004/102/contents/made

 

Guidance for Traders on Pricing Practices by the Chartered Trading Standards Institute (which replaces the UK Government Department for Business Innovation and Skills (BIS) Pricing Practices guide (Nov 2010): This Guidance recommends to traders a set of good practices in giving the consumer information about prices in various situations. It has of itself no mandatory force: traders are not under any legal obligation to follow the practices recommended. The Guidance however takes account of relevant legal obligations, in particular those provisions of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs – shown above) which are relevant to information about prices; the recommended practices are in general expected to be compatible with the CPRs:

https://www.businesscompanion.info/sites/default/files/Guidance-for-Traders-on-Pricing-Practices-2016.pdf

 

 

Channel legislation

 

Communications Act 2003. The Communications Act incorporates the AVMS Directive 2010/13/EU, following amendments in the form of Audio Media Services Regulations 2009 (AMSR) which inserted VOD provisions (Part 4A; ss368A – R); the Audiovisual Media Services Regulations 2010 which amended and supplemented AMSR 2009; the Audiovisual Media Services (Product Placement) Regulations 2010 which inserted Schedule 11A regarding restrictions on product placement, in addition to further minor amendments to AMSR 2009. The Audiovisual Media Services Regulations 2020 (see below) made amendments to the Broadcasting Acts 1990 and 1996 as well as the Communications Act. The Regulations transpose Directive 2018/1808, which amends Directive 2010/13/EU. The 2018 revising Directive aligns rules for on-demand programme services (ODPS) with those for linear TV, and introduces rules for videosharing platforms (VSPs) for the first time, for which see Part 4b.

http://www.legislation.gov.uk/ukpga/2003/21/contents

https://www.legislation.gov.uk/uksi/2020/1062/part/4/made

 

The Audiovisual Media Services Regulations 2020. This legislation transposes the Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. Amendments are made to the Communications Act 2003 (see above) and to the Broadcasting Acts 1990 and 1996. Explanatory memorandum immediately below followed by the link to the legislation:

https://www.legislation.gov.uk/uksi/2020/1062/memorandum/contents

https://www.legislation.gov.uk/uksi/2020/1062/made

 

Ofcom

 

The Ofcom Broadcasting Code. Ofcom is the UK Communications Industry regulator, operating under the Communications Act 2003 and funded by fees from industry for regulating broadcasting and communications networks, and by grant-in-aid from the UK Government. The full Code can be accessed here:

https://www.ofcom.org.uk/tv-radio-and-on-demand/broadcast-codes/broadcast-code

Section 9 of the Code contains a set of principles and general, overarching rules that apply to all commercial references in television programming. It also contains specific rules for different types of commercial activity (e.g. product placement, sponsorship), whether it is carried out by, or on behalf of commercial or non-commercial entities. Guidance notes on Section 9 are here:

https://www.ofcom.org.uk/tv-radio-and-on-demand/broadcast-codes/broadcast-code/section-nine-commercial-references-tv

General content rules specific to TV and Radio are from Appendix 2, taken from the Audiovisual Media Services Directive 2010/13/EU, providing that audiovisual commercial communications shall not (non-exhaustively): (i) prejudice respect for human dignity (ii) include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation (iii) encourage behaviour prejudicial to health or safety

 

The regulation of advertising on videosharing platforms. Statement. December 7, 2021

https://www.ofcom.org.uk/__data/assets/pdf_file/0022/229009/vsp-advertising-statement.pdf

 

 

VOD

 

The ASA has been designated by Ofcom as the co-regulator for advertising appearing on VOD services. Consequently, appendix 2 has been added to the CAP Code. This will apply to aspects of advertising on VOD services that are subject to statutory regulation under the Communications Act 2003 (as amended). Remit note is here. The Appendix doesn’t introduce new requirements for VOD advertising: VOD providers are already required, under law, to comply with them, and the Appendix doesn’t go beyond the rules that are already in the CAP Code. Adding these requirements to an Appendix of the CAP Code means that the ASA can take action on suspected breaches against the VOD service provider and without the need to refer to Ofcom for legal action. The rules from the Appendix are here:

https://www.asa.org.uk/asset/82C0366B-BF5F-40BF-B8ED401A585F56C9/

 

 

Data protection and privacy

 

Data Protection Act 2018. From Part 1, Overview: (1) This Act makes provision about the processing of personal data. (2) Most processing of personal data is subject to the GDPR. (3) Part 2 supplements the GDPR (see Chapter 2) and applies a broadly equivalent regime to certain types of processing to which the GDPR does not apply (see Chapter 3). (4) Part 3 makes provision about the processing of personal data by competent authorities for law enforcement purposes and implements the Law Enforcement Directive. (5) Part 4 makes provision about the processing of personal data by the intelligence services. (6) Part 5 makes provision about the Information Commissioner. (7) Part 6 makes provision about the enforcement of the data protection legislation:

http://www.legislation.gov.uk/ukpga/2018/12/pdfs/ukpga_20180012_en.pdf

 

From the iCO (see below): 'The GDPR is retained in domestic law as the UK GDPR, but the UK has the independence to keep the framework under review. The ‘UK GDPR’ sits alongside an amended version of the DPA 2018. The government has published a ‘Keeling Schedule’ for the UK GDPR, which shows the amendments.

 

Regulatory authority the ICO

Information Commissioner’s Office

http://ico.org.uk/

 

Introduction to the Data Protection Act 2018:

https://ico.org.uk/for-organisations/data-protection-act-2018/

Guide to the GDPR:

https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/

Guide to Privacy and Electronic Communications Regulations

https://ico.org.uk/for-organisations/guide-to-pecr/

Direct Marketing Guidance

https://ico.org.uk/media/for-organisations/documents/1555/direct-marketing-guidance.pdf

 

PECR

 

Privacy and Electronic Communications (EC Directive) Regulations 2003; entry into force 11/12/2003. These Regulations implement Articles 2, 4, 5 (3), 6 to 13, 15 and 16 of Directive 2002/58/EC of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (E-Privacy Directive). Regulations 20, 21 and 22 set out the circumstances in which persons may transmit, or instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of facsimile machine, make unsolicited calls for those purposes, or transmit unsolicited communications by means of electronic mail for those purposes. Regulation 22 (electronic mail) applies only to transmissions to individual subscribers (the term ‘individual’ means ‘a living individual’ and includes ‘an unincorporated body of such individuals’). Official text (not consolidated):
http://www.legislation.gov.uk/uksi/2003/2426/made
Consolidated version of key clauses here:

http://www.g-regs.com/downloads/UKPECR2003.pdf

Amendments:

The Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2004. Entry into force 25/06/2004. Permitted companies and other corporate bodies to register with the Corporate Telephone Preference Service (Reg 2 (1-5) amended Reg. 26 of PECR 2003):

http://www.legislation.gov.uk/uksi/2004/1039/contents/made

The Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011; entry into force 26/05/2011. Amended various provisions including rules on cookies (in particular Reg. 6 (1-5) amended Reg. 6 of PECR 2003)

http://www.legislation.gov.uk/uksi/2011/1208/contents/made

 

E-commerce

 

The Electronic Commerce (EC Directive) Regulations 2002; these regulations impose information obligations on those providing an information society service. They implement the E-Commerce Directive 2000/31/EC, specifically Articles 3, 5, 6, 7 (1), 10 to 14, 18 (2) and 20 of the Directive. Relevant regulations 6,7,8 require inter alia that a service provider shall ensure that: any commercial communication provided by him and which constitutes or forms part of an information society service shall be clearly identifiable as a commercial communication, clearly identify the person on whose behalf the commercial communication is made, clearly identify as such any promotional offer (including any discount, premium or gift) and ensure that any conditions which must be met to qualify for it are easily accessible, and presented clearly and unambiguously. Consolidated text: 

http://www.legislation.gov.uk/uksi/2002/2013/contents/made

 

Distance selling

 

The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134). Entry into force: 13/06/2014. These Regulations supersede and replace the Consumer Protection (Distance Selling) Regulations 2000 (as amended) and implement most of the provisions in the Consumer Rights Directive 2011/83/ECPart 2 of the Regulations requires traders to provide information to consumers in relation to contracts concluded between them. Regulations 13 and Schedule 2 specify the information required for a distance contract (including delivery arrangements, the trader’s complaint handling policy, if there is one, and cancellation rights). Regulation 14 covers requirements for distance contracts concluded by electronic means and Regulation 15 Telephone calls to conclude a distance contract:

http://www.legislation.gov.uk/uksi/2013/3134/contents/made

 

Environment

 

CMA (Competition and Markets Authority) Making environmental claims on goods and services. Published 20 September 2021. 'The guidance sets out principles which are designed to help businesses comply with the law. It explains each of these principles. It gives examples of how each of them applies and more detailed case studies where multiple principles apply. The guidance also sets out the legal framework on which these principles are based. The principles are: claims must be truthful and accurate; claims must be clear and unambiguous; claims must not omit or hide important relevant information; comparisons must be fair and meaningful; claims must consider the full life cycle of the product or service; claims must be substantiated.' There's a video available on the linked document. 

https://www.gov.uk/government/publications/green-claims-code-making-environmental-claims/environmental-claims-on-goods-and-services

Green Claims Guidance from the Department for Environment, Food and Rural Affairs (DEFRA):

https://www.gov.uk/government/publications/make-a-green-claim/make-an-environmental-claim-for-your-product-service-or-organisation

 

The EU Commission Guidance on the Application of Directive 2005/29/EC on Unfair Commercial Practices includes Section 5.1 on Environmental Claims, and also provides EU Commission Guidelines for making and assessing environmental claims (Dec 2000). Compliance Criteria on Environmental Claims from Multi-stakeholder Dialogue on Environmental claims 2016 ‘aims to build a common understanding concerning the interpretation of the Unfair Commercial Practices Directive (UCPD) in this area, with a view to achieving a uniform application throughout the EU’.

 

 

SELF-REGULATION

 

Industry codes 

 

The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) is the rule book for non-broadcast advertisements, sales promotions and direct marketing communications. This Code applies in media including print, posters, cinema, video and DVDs, mobile phones (SMS and MMS), VOD, Online including brand websites and e-mails. The Code incorporates and supplements provisions of EU law and national legislation. The Committee of Advertising Practice (CAP) is the Self-Regulatory body that creates, revises and enforces the Code. The Advertising Standards Authority (ASA) is the independent body that endorses and administers the Code.

https://www.asa.org.uk/codes-and-rulings/advertising-codes/non-broadcast-code.html

The UK Code of Broadcast Advertising (BCAP Code). This Code applies to all advertisements and programme sponsorship credits on radio and television services licensed by Ofcom:

https://www.asa.org.uk/codes-and-rulings/advertising-codes/broadcast-code.html

 

 

Other rules and guidance from CAP
Non-exhaustive

 

Misleadingness/ claims

 

Misleading advertising. Advice online, Dec 2020

Oh what a tangled web – Misleading ads. CAP News, 16 Jan 2020

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

Six top tips to avoid Misleading Advertising. CAP News. Jan 2021

 

Gender stereotyping and sexuality

 

CAP and BCAP’s stricter rules prohibiting the sexual portrayal or sexual representation of under-18s (and those who appear to be under 18) in advertising came into force January 2018. The new rules provide that advertising must not portray or represent anyone who is, or seems to be, under 18 in a sexual way. Rules are in full here. For further advice, see CAP’s Sexual Orientation and Gender Identity and Use of Stereotypes.

 

Social Responsibility

 

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

 Championing diversity during Black History Month October 2021

Disabilities in Ads CAP News December 2021

 

Use of data for marketing

 

In November 2018, CAP updated and overhauled their Section 10 in the GDPR context and renamed it as Use of data for marketing, reflecting their focus on marketing associated issues versus ‘pure’ database activities.

See also ‘Five top tips on our new rules on the use of data for marketing’:

https://www.asa.org.uk/news/five-top-tips-on-our-new-rules-on-the-use-of-data-for-marketing.html?dm_i=4PDW,39A4,7Y30Q,AH85,1

 

Native

 

September 2013 CAP News What is native advertising?

 September 2016 Recognising marketing communications: Overview

5 December 2016 Recognising ads: Contextually targeted branded content

13 March 2017 Guidance on the remit, presentation and content of advertisement features

 

Vlogging/ Influencers

 

Vlogging Advertising Guidance

 Guidance on Video Blogs scenarios:

 https://www.asa.org.uk/advice-online/video-blogs-scenarios.html

Video ‘Vloggers, bloggers and brands: a short guide to the ad rules:

https://www.asa.org.uk/advice-online/video-blogs-scenarios.html

Four essential questions to ask about video blogs. October 2016

ASA and ITV couple up to help Love Islanders use #ad. July 2019

February 2020. Influencers' guide to making clear that ads are ads

Special Edition Influencer Marketing Insight' February 2020

Tweeting: Don’t get all in a Twitter about your #marketing. March 2020

 

 

Pricing

 

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

https://www.asa.org.uk/resource/best-practice-guidance-on-vat-inclusive-and-vat-exclusive-price-claims.html

 

Prices – General:

https://www.asa.org.uk/advice-online/prices-general.html

 

Retailers’ Price Comparisons February 2013

 Lowest Price Claims and Price Promises February 2013

Availability September 2016

 Make sure the price is right: using reference pricing in ads. CAP News. February2020

 At the right price: making price comparisons with previous prices. CAP News. September 2020

 

Sales promotions/ promotional marketing

 

Promotional marketing: Prize winners Advice online 26 October 2021

 

Promotional marketing: General. October 2016. This guidance gives a brief summary of the key points and where to get more information:

https://www.asa.org.uk/advice-online/promotional-marketing-general.html

 

Not all conditions are created equal - a significant insight into significant conditions. CAP News. 11 Sep 2020

https://www.asa.org.uk/news/not-all-conditions-are-created-equal-a-significant-insight-into-significant-conditions.html?dm_i=4PDW,E969,7Y30Q,1NJ2E,1

 

Keep your “free” claims problem-free. CAP News 22 October 2020.

Covers pure ‘free’ claims, ‘Conditional purchase’ promotions, and Package Offers, with links to other guidances on the topic and some relevant rulings

 

 

Environment

 

Environmental claims: General. Advice online. 03 Dec 2013

https://www.asa.org.uk/advice-online/environmental-claims-general.html

News/ guidance re-issued June 2020

https://www.asa.org.uk/news/ensuring-your-environmental-claims-are-more-than-just-hot-air.html?dm_i=4PDW,C27P,7Y30Q,1CFR4,1

ASA statement on the regulation of environmental claims and issues in advertising. ASA News, 23 Sep 2021
https://www.asa.org.uk/news/asa-statement-on-the-regulation-of-environmental-claims-and-issues-in-advertising.html

Misleading environmental claims and social responsibility guidance of December 9, 2021 'consolidates the ASA's position'.

 

Remit

 

CAP’s document explaining the remit extension and its scope can be found here:

http://cap.org.uk/News-reports/Media-Centre/2014/ORE-update.aspx?utm_source=Adestra&utm_medium=email&utm_term=&utm_content=Find out more&utm_campaign=Update - ORE update - .VL6kNYqsWX1

December 2014 CAP published an Online Remit Update which covers in depth the criteria that the ASA Council apply when deciding whether communication on an owned website falls within remit:

http://cap.org.uk/News-reports/Media-Centre/2014/~/media/Files/ASA/News/ORE Update Dec 2014.ashx

And May 2016 CAP Advice on User Generated Content (UGC):

https://www.cap.org.uk/News-reports/Media-Centre/2016/Insight-User-generated-content-is-king.aspx?utm_source=ASA+and+CAP+Master+list&utm_campaign=fc61ff660c-Insight+-+User+generated+content13%2F4%2F16+3%3A22+PM&utm_medium=email&utm_term=0_436cabcb1d-fc61ff660c-71230881#.VzRZ2RUrL66

 

 

Native 

 

CAP Code Section 2, Recognition of Marketing Communications:

https://www.cap.org.uk/Advertising-Codes/Non-Broadcast/CodeItem.aspx?cscid=%7Bddd2e81c-7bc4-4b46-a770-76d7c396162a%7D#.V7R3DZMrL64

CAP Advice note is here:

http://cap.org.uk/Advice-Training-on-the-rules/Advice-Online-Database/Contextually-targeted-branded-content.aspx#.VL-pRoqsWX0

 

 

Testimonials

 

CAP issued Avoiding ‘Fake Views’ – A guide to testimonials and endorsements 10 Dec 2020

 

 

TRADE ASSOCIATIONS AND ICC

 

DMA

 

Direct Marketing Association (DMA). The trade body for the direct marketing industry. The DMA ‘manages programmes to protect consumers against bad practice and increase consumer trust in the industry. It promotes best practice through DMA codes of conduct and provides up-to-the-minute information, research and legal advice.’ www.dma.org.uk ‘The DMA Code is an aspirational agreement to which all DMA members and their business partners must adhere. It aims to promote one-to-one marketing as a true exchange of value between your business, looking to prosper, and your customer, looking to benefit – and provides you with the five clear principles that will guide you to achieve this, and against which your conduct will be measured. An important part of your role as a DMA member is to extol and spread the positive values and goals of this Code, for the benefit of our industry into the future.’ The DMA Code is linked below. More specific advice and guidelines are available to members.

https://dma.org.uk/the-dma-code


ISBA 

 

The Incorporated Society of British Advertisers. From their website: ‘ISBA is the only body in the UK that enables advertisers to understand their industry and shape its future because it brings together a powerful community of marketers with common interests, empowers decision-making with knowledge and insight and gives a single voice to advocacy for the improvement of the industry.’ The ISBA Code of Conduct for influencer marketing was launched September 14, 2021. The Code is ‘not a new set of rules and regulations but is a guide to best practice in influencer marketing. It contains commitments from brands, agencies, and talent.’
https://www.isba.org.uk/knowledge/isba-influencer-marketing-code-conduct-september-2021

Updated May 2022: 'The Code is split into three parts, detailing the undertakings which brands, talent agencies, and influencers themselves have each given. It deals with subjects from ad measurement to the issuing of appropriately detailed briefs; and from protecting children and vulnerable groups to fee transparency.' The Code has 'a focus on helping brands to deliver better diversity, equity, inclusion, and representation in their influencer activity.'

https://www.isba.org.uk/article/updated-isba-influencer-marketing-code-conduct-focuses-diversity-and-inclusion

 

 

IAB UK/ EUROPE

 

The Interactive Advertising Bureau (IAB) is the UK trade association for digital advertising, representing the UK’s leading brands, media owners and agencies:

https://www.iabuk.net/

How to Comply with EU Rules Applicable to Online Native Advertising

https://iabeurope.eu/all-news/how-to-comply-with-eu-rules-applicable-to-online-native-advertising/

Transparency and Consent Framework (TCF): 

https://iabeurope.eu/transparency-consent-framework/

February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). Further story here

Gold Standard (ad fraud, brand safety):

https://www.iabuk.com/news-article/iab-uk-gold-standard

 

EDAA

 

The European Self-Regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance:

http://www.edaa.eu

 

ICC

 

ICC Advertising and Marketing Communications Code 2018

https://cms.iccwbo.org/content/uploads/sites/3/2018/09/icc-advertising-and-marketing-communications-code-int.pdf

 

From the introduction: ‘The ICC Code is constructed as an integrated system of ethical rules. There are General Provisions and Definitions which apply without exception to all marketing communications; these should be read in conjunction with the more detailed provisions and specific requirements set out in the relevant chapters:

 

Chapter A  Sales Promotion

Chapter B  Sponsorship

Chapter C  Direct Marketing and Digital Marketing Communications

Chapter D  Environmental Claims in Marketing Communications'

 

EASA

 

The European Advertising Standards Alliance is a non-profit organisation based in Brussels; it brings together national advertising Self-Regulatory Organisations (SROs, such as the ASA) and other organisations representing the advertising industry in Europe and beyond. EASA is 'the European voice for advertising self-regulation.' The following link provides members:

http://www.easa-alliance.org/members

EASA’s Best Practice recommendation on Online Behavioural Advertising is here:

http://www.easa-alliance.org/sites/default/files/EASA Best Practice Recommendation on Online Behavioural Advertising_0.pdf

And on Digital Marketing Communications here:

http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Recommendation%20on%20Digital%20Marketing%20Communications.pdf

Influencer Marketing:

https://www.easa-alliance.org/sites/default/files/EASA%20BEST%20PRACTICE%20RECOMMENDATION%20ON%20INFLUENCER%20MARKETING_2020_0.pdf

 

 

WFA

World Federation of Advertisers 

https://www.wfanet.org/

 

GDPR guide for marketers:

http://info.wfa.be/WFA-GDPR-guide-for-marketers.pdf

The WFA launched their Planet Pledge in April 2021

And Global Guidance on Environmental Claims April 2022

 

ESA

The European Sponsorship Association:

www.sponsorship.org

 

 

 

...................................................................................................
Read more

International

SECTION E SOURCES/ LINKS

 

 

SELF-REGULATION 
 

ICC

 

ICC Advertising and Marketing Communications Code 2018. In September 2018, the International Chamber of Commerce introduced the newly revised Advertising and Marketing Communications Code (the Code). From the website:  'This tenth edition of the Code covers all marketing communications, regardless of form, format or medium. Marketing communications are to be understood in a broad sense (see definitions) but obviously do not extend indiscriminately to every type of corporate communication. For instance, the Code may not apply to corporate public affairs messages in press releases and other media statements, or to information in annual reports and the like, or information required to be included on product labels. Likewise, statements on matters of public policy fall outside the scope of this code. Corporate Social Responsibility (CSR) programmes as such are not covered by the Code; however, when a CSR statement appears as a claim in a marketing communication, the Code is applicable. The Code also applies to marketing communication elements of a CSR programme, for example where a sponsorship is included in such a programme. Finally, communications whose primary purpose is entertaining or educational and not commercial, like the content of television programmes, films, books, magazines or video games, are not intended to be covered by this code.' Platform:

https://iccwbo.org/publication/icc-advertising-and-marketing-communications-code/

Downloaded:

https://cms.iccwbo.org/content/uploads/sites/3/2018/09/icc-advertising-and-marketing-communications-code-int.pdf

Translation of the code into eleven languages is here

 

Additional guides and frameworks


ICC Guide for Responsible Mobile Marketing Communications

Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications

ICC Framework for Responsible Food and Beverage Marketing Communication

 

ICC guidance documents

 

ICC Guidance on Native Advertising (May 2015). 

https://iccwbo.org/content/uploads/sites/3/2015/05/ICC-Guidance-on-Native-Advertising.pdf

 

ICC Framework for Responsible Marketing Communications of Alcohol. This Framework helps to interpret the fundamental global standards of the ICC Code to offer more specific guidance on issues unique to the alcohol sector emphasizing the key principles that marketing communications be honest, legal, decent and truthful and prepared with a due regard for social responsibility.  It will also serve as the basis for developing self-regulatory rules for marketing alcohol where these do not exist. Countries seeking to establish or enhance marketing self-regulation codes for alcohol can look to the ICC principles as the baseline global standards and use the interpretation of this Framework easily to adapt them into national codes according to varying cultures and contexts.

https://iccwbo.org/content/uploads/sites/3/2019/08/icc-framework-for-responsible-alcohol-marketing-communications-2019.pdf

 

ICC toolkits

 

 

IAB Europe

 

IAB (Interactive Advertising Bureau) Europe: Its mission is to 'protect, prove, promote and professionalise' Europe's online advertising, media, research and analytics industries. Together with its members, companies and national trade associations, IAB Europe represents over 5,500 organisations with national membership including 27 National IABs and partner associations in Europe. 

http://www.iabeurope.eu/

'The Gold Standard is open to all IAB UK members who buy and sell digital media. It improves the digital advertising experience, helps compliance with the GDPR and ePrivacy law, tackles ad fraud and upholds brand safety':

https://www.iabuk.com/goldstandard

February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). Further story here

IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era and in July 2021 the Guide to Contextual Advertising 

IAB Europe's December 2021 Guide to Native Advertising provides 'up-to-date insight into native ad formats and key considerations and best practices for buyers.' 

 

 

ICAS

 

From their website: 'The International Council for Advertising Self-Regulation (ICAS) is a global platform which promotes effective advertising self-regulation. ICAS members include Self-Regulatory Organizations (SROs) and other national, regional and international bodies working to ensure that advertising and marketing communications are legal, honest, truthful and decent.' In December 2021, ICAS published the fourth edition of its Global SRO Database and Factbook

https://icas.global/about/

 

 

EASA: European Advertising Standards Alliance

 
'EASA has a network of 40 organisations representing 27 advertising standards bodies (also called self-regulatory organisations) from Europe and 13 organisations representing the advertising ecosystem (the advertisers, agencies and the media). EASA's role is to set out high operational standards for advertising self-regulatory systems, as set out in the Best Practice Model and EASA's Charter. EASA also provides a space for the advertising ecosystem to work together at European and international level to address common challenges and make sure advertising standards are futureproof.' EASA’s membership consists of 38 SROs from Europe and beyond, and 16 advertising industry associations, including advertisers, agencies and the media. 

http://www.easa-alliance.org/

 

Best Practice Recommendation on Digital Marketing Communications (updated 2015): EASA revised its Best Practice Recommendation (BPR) on Digital Marketing Communications in 2015 to ensure advertising standards remain effective and relevant when it comes to 'the ever-changing digital landscape and interactive marketing techniques'. Emphasis is placed on the need for all marketing communications to be easily identifiable for consumers, no matter where or how they are displayed: 

http://www.easa-alliance.org/sites/default/files/EASA%20Best%20Practice%20Recommendation%20on%20Digital%20Marketing%20Communications.pdf

 

EASA Best Practice Recommendation on OBA (Revised Oct. 2016): provides for a pan-european, industry-wide self-regulatory standard for online behavioural advertising. The Mobile Addendum in 2016 extended the types of data relevant to OBA Self-Regulation, to include cross-application data, location data, and personal device data. The BPR incorporates (in sections 2 and 3) and complements IAB Europe’s self-regulatory Framework for OBA:

http://www.easa-alliance.org/products-services/publications/best-practice-guidance 

 

EASA Best Practice Recommendation on Influencer Marketing 2018. From the document: The EASA Best Practice Recommendation on Influencer Marketing aims to look at the key elements of influencer marketing techniques and assist SROs in creating their own national guidance by showcasing already existing national guidance on this topic across the SR network5 and elaborating the different elements a guidance should address and define. EASA recognises that, subject to local parameters SROs may vary in their national practices and choose to go beyond what is suggested in this document or design and implement alternative strategies and guidelines to ensure that influencer marketing abides by the national advertising codes and is honest, decent and truthful and can be thus trusted by consumers.

https://www.easa-alliance.org/sites/default/files/EASA%20BEST%20PRACTICE%20RECOMMENDATION%20ON%20INFLUENCER%20MARKETING_2020_0.pdf

 

 

The European Interactive Digital Advertising Alliance (EDAA)

 

The EDAA has been established by a cross-industry coalition of European-level associations  with an interest in delivering a responsible European Self-Regulatory Programme for OBA in the form of pan-European standards  The EDAA essentially administers this programme; their principal purpose is to licence the OBA Icon to companies. It is also responsible for integrating businesses on the Consumer Choice platform - www.youronlinechoices.eu and ensuring credible compliance and enforcement procedures are in place through EDAA-approved Certification Providers who deliver a ‘Trust Seal’. It also coordinates closely with EASA and national SRO’s for consumer complaint handling

 

 

FEDMA

 

FEDMA (Federation of European Direct and Interactive Marketing) is a Brussels-based, pan-European association representing twenty-one national DMA’s and corporate members 
https://www.fedma.org/

 

 

THE EU PLEDGE 

 

The EU Pledge, enhanced July 2021 effective January 2022, is a voluntary initiative by leading Food and Beverage companies, accounting for over 80% of food and soft drink advertising expenditure in the EU, to change food and soft drink advertising to children under the age of thirteen in the European Union. It consists of three main commitments:

 

 

The EU Pledge Implementation guidance, in detail and by medium, is here. The Pledge is consistent with the International Food & Beverage Alliance (IFBA)’s 2021 Global Responsible Marketing policy

 

WFA

https://wfanet.org/about-wfa/who-we-are

 

‘WFA is the only global organisation representing the common interests of marketers. It is the voice of marketers worldwide, representing 90% of global marketing communications spend – roughly US$900 billion per annum. WFA champions more effective and sustainable marketing communications.’

 

Planet Pledge is a CMO-led framework designed to galvanise action from marketers within our membership to promote and reinforce attitudes and behaviours which will help the world meet the challenges laid out in the UN SDGs (Sustainable development goals).

https://wfanet.org/leadership/planet-pledge

 

The Responsible Marketing Pact (RMP) aims to reduce minors’ exposure to alcohol marketing, limit the appeal of alcohol marketing to minors, and strive to ensure minors’ social media experience is free from alcohol ads.

 

 

EUROPEAN LEGISLATION

 

Channel Regulations and Directives 

 

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

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

 

Article 29 Working Party/ EDPB

 

The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Personal Data Protection Directive). It has an advisory status and acts independently of the European Commission. The arrival of the GDPR heralded the demise/re-working of A29WP, and its replacement by the European Data Protection Board: 

https://edpb.europa.eu/.

 

All documents from the former Article 29 Working Party remain available on this newsroom

Article 29 Working Party archives from 1997 to November 2016:

http://ec.europa.eu/justice/article-29/documentation/index_en.htm.

 

 

 

Key Directives in marketing communications

 

Privacy

 

Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements

https://eur-lex.europa.eu/eli/dir/2002/58

 

The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector 
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136

 

 

E-privacy Regulation draft (10 February 2021)

 

Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):

https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf

Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf

February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft

 

 

E-commerce

 

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information to be provided by the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive sets out the information requirements for commercial communications which are part of, or constitute, an information society service under article 6.

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031

 

Pricing

 

Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006

 

Commercial practices 

 

Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ – UCPD). This is the European legislation that most impacts marketing and advertising in Europe. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022.

https://eur-lex.europa.eu/eli/dir/2005/29/oj
Guidance: 
In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version. 

 

 

The Omnibus Directive 

 

Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. This directive, which 'aims to strengthen consumer rights through enhanced enforcement measures and increased transparency requirements', sets out some new information requirements related to search rankings and consumer reviews under the UCPD 2005/29/EC, new pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful explanatory piece on the Omnibus Directive 2019/2161 from A&L Goodbody via Lexology here. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022. 
https://eur-lex.europa.eu/eli/dir/2019/2161/oj

 

 

Comparative advertising

 

Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (codified version):

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114

 

Audiovisual media

 

Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states.  From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013

 

AVMSD amendment

 

Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here and there's a helpful piece from Simmons and Simmons LLP/ Lexology here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. Another significant aspect is the introduction of rules for video-sharing platforms in particular under articles 28a and 28b; new rules include the identification of commercial communications where known. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.

https://eur-lex.europa.eu/eli/dir/2018/1808/oj

 

Food Regulations

 

EU Regulation 1924/2006 on nutrition and health claims made on foods. The annex to the Regulation contains the nutritional claims and the conditions under which they can be made for individual products. More information on the Regulation is here, and the Regulation itself is found in full from the link below:

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02006R1924-20121129&from=EN

 

Regulation 432/2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. This Regulation carries an updated annex with the complete list of approved health (as opposed to nutrition) claims and their conditions of use:

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32012R0432

 

Regulation 1169/2011 on the provision of food information to consumers. While this Regulation is largely to do with labelling, it also incorporates a number of broad requirements for advertising, largely to do with misleadingness, set out under Article 7:

http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32011R1169&from=EN

 

​Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control:

eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32013R0609

 

Audiovisual media 

 

AVMS Directive (incorporating some alcohol rules). Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive). Article 9 for General rules, 22 for Alcohol rules. Consolidated version following amends of Directive 2018/1808:

 

 

 

 

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