SECTION A OVERVIEW

Updates since Sept 2022 (slimmed)

Betway £400,000 fine marketing to children Sept 2022

Gambling and lotteries advertising: protecting U18s

Age-restricted ads online November 2022 

Ladbroke's ruling 21 December 2022

Above is a breach of the new rules 

Paddy Power/ Peter Crouch ruling Feb 2023

Above rules PC no 'strong appeal' to kids

Ditto Micah Richards SkyBet ruling Feb 8

But red card for Jordi and Sergio & Victor

PL shirt ban. BBC April 14, 2023

Ladbrokes/ Jake Paul tweet ruling July 5 (U)

And July 12 case re PL managers

GC consultation Summer 2023 

Savage/ William Hill ruling August 23, 2023 (NU)

Sky Bet/ Neville ruling October 18, 2023 (U)

Betfred/ Joshua ruling November 1, 2023 (U)

Mecca Bingo ruling Nov 15, 2023. Ad here (U)

Buzz Bingo called out Jan 3, 2024. CMS 24/1 

Chris Rock/MGM avoids ASA slap March 20, 2024

Akinfenwa/ Bet UK doesn't March 13, 2024 

The Lucky Cow ad dances free. Also March 13

CMS commentary on above & others April 2, 2024

Spain Supreme Court overturns gambling ad restrictions

igaming business April 10, 2024. Placed here for European context

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Gambling Commission 2024-2027 strategy 

Evaluating the impact of the Gambling Act Review

Gambling Commission blog 19 March, 2024.

ASA’s latest project and implications for Commission enforcement
Wiggin LLP/ Lex 8 March, 2024.

'Strong appeal': learnings from the new rule one year on. CAP News 12 Oct 2023.

Gambling Commission Summer 2023 consultation on the below here. Closed 18th October.

White Paper April 27, 2023. Press release here, paper here, marketing and advertising chapter here.

Hansard/ parliamentary debate here; BBC report here. CMS Cameron McKenna Nabarro Olswang here May 12

THE KEY CODES

As with most administrations, the U.K.’s gambling operators are ‘governed’ by a licensing authority, in this case the Gambling Commission (GC), an independent non-departmental public body. The GC is the gatekeeper of the rules; their Licence Conditions and Codes of Practice (LCCP) are here. Part II, Section 5 covers Marketing and requires principally that licensees comply with CAP and BCAP Codes - our links are to the respective gambling rules. Updates to the GC's guidance on fair terms and practices are discussed by GALA/ Mondaq in this February 2022 piece here, which also references the CMA's August 2018 guidance related to remote gambling. The Commission can exact significant fines from operators who have been found by the ASA to break the rules; examples here and here. ‘All of the Gambling Commission’s guidance, advice and regulations for gambling advertising can be found on our dedicated webpage.’

The Industry Group for Responsible Gambling (IGRG) weighs in with their Code for Socially Responsible Advertising (6th edition, April 2021) which is ‘recognised’ by GC and deals with, inter alia, social responsibility messaging covered later in this section. Rules from these codes are set out in our following content section B.

RECENT REGULATORY ISSUES

The gambling sector in the U.K. is high profile and very active, and attracts considerable attention from regulators, lobby groups and observers. There follows a brief round-up of some key developments in the industry’s advertising regulation:

• See above under Issues/ News for white paper introduction; commentary from Herbert Smith Freehills LLP/ Lex April 27, 2023 here and Bird&Bird November 10, 2023 here 
• Important and relatively recent (October 1 announcement; doc dated April 2022) guidance is Gambling and lotteries advertising: protecting under-18s. A ‘checklist’ provides 'a short overview of the steps that marketers should take to lessen the possibility of their gambling or lottery advertisement appealing ‘strongly’ to under-18s.' It's a helpful document as it includes a practical assessment of what is and isn't acceptable in terms of 'strong appeal'.
• Content marketing for gambling products online from CAP June 2022 is significant as it defines and interprets the remit so that its clear what is and isn't an ad in the online environment; helpful July 2022 commentary from Osborne Clarke/ Lex here;
• Games and gambling - or where is the gambling act? from Taylor Wessing/ Lexology December 13, 2021 is a valuable update of the current regulatory situation in the UK, including some interesting legal dust-ups;
• Per earlier notice, CAP and BCAP have issued new guidance August 6, 2021 effective November: Gambling advertising: responsibility and problem gambling; and New gambling and lotteries rules: tougher content restrictions. CAP News 06 Oct 2022;
• Advice Notice: The marketing of gambling on eSports on social media ‘Our advice concerns how to stay within the advertising rules when it comes to promoting gambling on social media, with the focus on promoting gambling on eSports events. This advice applies to gambling marketing on all social media platforms, including Facebook, Instagram, Twitter, Snapchat, Twitch and TikTok to name a few.’ CAP compliance team 23/04/2020.

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• A general introduction to gambling law in United Kingdom. Memery Crystal LLP/ Lex May 30, 2023.
• Don’t Gamble on Bingo Ads, Warns ASA. Charles Russell Speechlys via Lexology. Makes the point that Bingo ads will be treated as gambling ads for the purpose of standards regulation and sets out a number of other issues such as the inclusion of significant conditions in promotional advertising and, topically, the possibility of ‘loot boxes’ in video games coming into a Gambling remit.
• Influencers, celebrities and increasing gambling advertising restrictions from Senet/ Lexology September 23, 2021 covers in particular Influencer ground in the UK, Spain and Australia.

LIVE SPORT 

In December 2018, in the context of concerns about levels of advertising around sports programmes, IGRG announced a ‘whistle to whistle’ ban on all TV betting advertising during pre-watershed live sport, starting five minutes before the event begins, and ending five minutes after it finishes. ‘This and other changes’ have been brought forward as part of the code’s annual review process, and are included in their April 2021 Code for Socially Responsible Advertising, also linked above. The full press release is here, and details are under our channel section C/ TV and Radio header.

RULINGS AND GUIDANCE 

• Ladbroke's ruling 21 December 2022; the ad was found to breach the new (in force October 2022) rules relating to 'strong appeal' to under 18s in using high profile, international PL footballers: 'Premier League footballers were considered high risk within the CAP guidance “Gambling and lotteries: Protecting under-18s” in terms of how likely they were to be of strong appeal to under-18s.' GALA/ Lewis Silikin is unimpressed.
• Ladbrokes did it again: a February 2023 tweet re Jake Paul that was found by the ASA to transgress 'strong appeal' rules. July 5 case here; and again July 12 case here this time re PL managers. 
• Getting social media ads right for Qatar ‘22. CAP News 24 November, 2022. 'Football is overwhelmingly popular with all age groups. Children and young people play it, watch it, and want to be part of it in huge numbers. So, sports betting operators need to be very careful in the kinds of content used. The new controls on appeal don’t ban football-related content and references outright. There are proportionate exemptions that allow gambling advertising to reasonably illustrate betting products offered.' Exemptions are shown in the linked doc and under section 15 of the guidance;
• June 2022 ruling re Paddy Power which upheld a complaint that the advertising encouraged gambling behaviour that was socially irresponsible. Commercial is here, though it may be taken down at some point;
• January 2022 ruling on 888 poker and content creator Callum Airey on YT. Issue was whether the advertising appealed to U18s. Not upheld. Ruling here, commercial here;
• What a slot of responsibility! Gambling ads and the CAP Code. CAP News 29 August 2019 and issued again 23 April 2020. Covers rulings such as ‘Rehab Bingo’, which was banned by the ASA as “rehab” suggested online bingo could be used to alleviate personal problems. A Facebook ad for matched betting that claimed ““What would you do with some extra money?... I paid off my credit card” and an advertorial which described how a punter used a big win as the solution to their debt problems, were also found to be in breach;
• Harnessing new technology to tackle irresponsible gambling ads targeted at children. ASA and CAP News 04 Apr 2019. A number of advertisers were found via monitoring technology in the form of child ‘avatars’ to have breached targeting rules;
• Guidance for Advertisers of Free Bets and Bonuses. February 2018;
• ASA Ruling on Coral June 2020. Included because a) it was a tweet and b) seems like a fine judgement re ‘repetitive participation’;
• Don’t be a joker: Gambling and the Ad Rules CAP News 29 April 2021. A walk through the rules with some rulings for illustration;
• July 2021 ruling on Ladbrokes TV commercial; interesting because Ladbrokes had sought CAP copy advice and because of the ASA interpretation of depictions of Gambling 'addiction'; they pointed to Gambling Advertising: responsibility and problem gambling (April 2018);
• Coral ruling August 2022; AV here from YT (may be taken down). 'It portrayed, condoned, or encouraged gambling behaviour that was socially irresponsible or could lead to financial, social or emotional harm.' Commentary from Osborne Clarke here: 'deemed too exciting.'
• Gambling advertising: responsibility and problem gambling published August 2021, effective November 2021. New provisions, drawing on insights from the GambleAware research now restrict ads that:

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• present complex bets or other gambling products in a way that emphasises the skill, knowledge or intelligence involved and could therefore lead to erroneous perceptions of risk or control;
• present gambling as a way to be part of a community based on skill; or
• state or imply that offers (such as those involving money back, ‘free’ bets or bonuses, or enhanced odds) are a way to reduce risk.

LEGISLATIVE BACKGROUND

A list of gambling-related legislation is provided by the Gambling Commission here. The core legislation in this context is the Gambling Act 2005, summary here. The act established the Gambling Commission (GC) and a new licensing regime for commercial gambling. Changes to legislation by the implementation of the Gambling (Licensing and Advertising) Act 2014 required that only gambling operators licensed by the Gambling Commission are permitted to advertise to consumers in Great Britain, where previously remote gambling operators only required a licence if they had remote gambling equipment located in Great Britain. Summary of the 2014 Act is here.

(Relatively) unusually, there is no specific national or European legislation for advertising content in the gambling sector: in the UK, as is largely the case in other EU countries, the GC licensing authority, which is an independent ‘non-departmental public body’ (NDPB), is the gatekeeper of the rules, and requires compliance with the UK Advertising Codes administered by the ASA. In Europe, EU Commission Recommendation 2014/478/EU on common principles for the protection of consumers and players of online gambling services and for the prevention of minors from gambling online is non-binding, but significant. Details from the Recommendation in our content section B. An interesting piece Gambling: A Legal and Philosophical Overview from Memery Crystal LLP via Lexology briefly explores the UK situation and sets out some key issues across a number of jurisdictions. The same source provides A general introduction to gambling law in the United Kingdom June 2021.

SECTION A OVERVIEW

Updates since March 2023 (slimmed)

* Recommended read

ICO: Call for views on “consent or pay” business models

Closes April 17, 2024. Slaughter & May commentary here

Deepfakes in advertising - who’s behind the camera?*
Herbert Smith Freehills/ Lex. Feb 28, 2024

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

FCA social media guidelines. Mar 26, 2024; Taylor Wessing Apr 3

FCA SDR Policy statement, Handbook Sustainability Labels 

Travers Smith/ Lex commentary on above Dec 7, 2023 here 

THE AD CODES

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

INFLUENCERS/ RECOGNITION OF ADVERTISING

Influencer Marketing - Key Advice Resources. CAP News 21 Feb 2024

A Look At Influencer Reviews. CAP News 14 Sep, 2023

Above is 'a series of relevant articles and resources to get you up to speed on influencer marketing regulation.'

CMA issues guidance on influencer marketing, including #ad for gifts (!) RPC/ Lex December 2022. Recommended read

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

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

Section 2 of the CAP Code covers recognition of marketing communications, and the BCAP Code Section 2 does the same in broadcast. There’s a lot of guidance from CAP in this territory; most of it can be found here; a key piece is Influencers' Guide to making clear that ads are ads from the CMA/ CAP March 2023 and a ‘Special Edition Influencer Marketing Insight' includes a flow chart, cheat sheet and affiliate marketing infographic etc. Engaging Social Media Influencers, a September 2021 piece from Brodies LLP via Lex is helpful on how to manage Influencer marketing and the CMA provide guidance with Hidden ads: Being clear with your audience, update of 3 November 2022. ISBA's Influencer Marketing Code of Conduct was updated June 2023. Influencers can be animals - Fur warning: the rules that apply to pet influencers CAP News, 08 Sep 2022. The ASA now include a page on their website which identifies influencers who have failed to comply with rulings/ warnings and in December 2023 announced a partnership with Instagram and five content creators to publish a series of new videos, aimed at sharing key aspects of the rules that all UK advertisers must follow. The vids can be found via the link.

Legislation (Influencers and generally)

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

The Digital Markets, Competition and Consumers (DMCC) Bill is significant, relevant legislation, providing the CMA with weighty new powers and essentially absorbing, with few amendments at this point but the option to bring those in, CPRs 2008, which provide the consumer protection measures key in areas such as environmental claims and influential in self-regulatory foundation. The bill carries other important provisions for the digital landscape but less directly relevant to advertising. Some helpful explanation and commentary from Wiggin LLP May 4, 2023 here and GALA/ Lex here. The bill's planned progress through both houses is shown in the first link in this para. Update from Freshfields Bruckhaus Deringer December 8, 2023 and how the bill might affect CAP and BCAP codes here from Taylor Wessing Dec 14, 2023 and finally and importantly from Lewis Silkin January 2024 here.

Para 11, Schedule 1 of the CPRs provides that a commercial practice ‘in all circumstances considered unfair’ is ‘Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial)’. More broadly, Regulation 6 (1) d of Part 2 of the CPRs sets out a misleading omission when ‘a commercial practice fails to identify its commercial intent, unless this is already apparent from the context.’ More broadly still, it is this legislation, transposed from the UCPD 2005/29/EC, that is the core of misleadingness regulation around Europe and including the UK for the time being (the CPRs are retained legislation - see The end of retained EU law? from Macfarlanes LLP Jan 2023). The UK self-regulatory position reflects the statutory construct 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 act brings online financial scam ads into its scope, impact here from Burges Salmon Dec 7, the Online Safety Act may also impact marketers' and agencies' corporate lives: Online Safety Act - An Overview Burges Salmon LLP again Nov 13, 2023. The Government response to Online Advertising Programme consultation of July 25th 2023 sets out plans principally to regulate illegal advertising online and is intended to complement the Online Safety Bill and the DMCC bill outlined above and the Data Protection bill; there's a helpful summary from Taylor Wessing September 25, 2023 here and this from RPC/ Lex October 25, 2023.

MISLEADINGNESS

Around 70% of the complaints the ASA receives relate to misleading advertising, covered in Section 3 of the CAP Code and the same Section of the BCAP Code. This is a significant slice of the codes, and includes, for example, issues of price, substantiation, qualification, and comparisons in advertising. Forms of misleadingness are set out under our content section B, though we have separated price issues as these are also subject to statutory provisions, and in of themselves can be somewhat complex. Key guidance from CAP News Jan 2020, re-issued Dec 2020, is here, and Advice online Dec 2020 here. On 28 January 2021, re-issued Jan 2022, CAP published Six top tips to avoid misleading advertising and on April 20, 2023 a Misleadingness checklist. Misleadingness in law is (largely) from Regulation 5 of the CPRs, which covers misleading actions and Regulation 6, which deals with misleading omissions. Comparative advertising in law is provided for under The Business Protection from Misleading Marketing Regulations 2008, Regulation 4, in part a transposition of the Misleading and Comparative Advertising Directive 2006 /114/EC. Also see Q&A: misleading advertising practices in United Kingdom from Herbert Smith Freehills LLP/ Lex March 2022 and Substantiation 101 from CAP 23rd February, 2023. 

ENVIRONMENTAL CLAIMS

Green claims in fashion retail. The CMA’s message is clear

TLT LLP/ Lex February 29, 2024

Fashion and the Green Claims Code: open letter from the CMA
Charles Russell Speechlys March 28, 2024

UK regulators and greenwashing. March 4, 2024

Helpful round-up from Morgan, Lewis & Bockius/ Lex

What the DMCC Bill means for 'greenwashing' claims
Boyes Turner/ Lex December 14, 2023

This is obviously a hot topic; the CAP and BCAP codes anyway devote whole sections to the subject: 11 and 9 respectively, set out in our content section B below. The CMA Green Claims Code was published September 20th 2021, their checklist same date here; CAP guidance will 'complement' the CMA's work, which was developed in close consultation with ASA/CAP. Commentary on the CMA guidance from Macfarlanes/ Lex here. 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. Green claims update from Hogan Lovells/ Lex June 20, 2023 compares the EU and UK approaches to environmental claims regulation, as does Squeaky clean: updates on greenwashing from Osborne Clarke June 22, 2023, also carrying news of the CMA’s report on the green heating and insulation sector and finally on the CMA, key takeaways from their recent green claims conference, from RPC July 18, 2023.

This Feb 19 2023 piece from GALA is significant, setting out how the standards of proof differ between the CMA and the ASA and the enduring tension and frustration if 'purist' regulation makes it impossible to publish green claims. 

• It’s not that easy being ‘green’ – promoting good work without misleading by omission. CAP News July 27, 2023. Some pretty brutal rulings; 
• Misleading environmental claims and social responsibility key advertising guidance, updated June 23, 2023; reflects recent decisions and carries new emphasis on social responsibility. Helpful commentary from Lewis Silikin/ GALA here; 
• The WFA launched their Planet Pledge in April 2021 and in April 2022 Global Guidance on Environmental Claims; carries the six principles for a credible environmental claim;
• New section of the ASA website Our work on Climate Change and Environmental Claims;
• Updated environmental guidance: green disposal claims CAP News 28 November, 2023. Includes consumer research and the ASA's 28/11 Greenspeaking with Confidence event. Typically lively commentary on recycling claims from GALA/ Brinsley Nov 30 here. Guidance on green disposal claims is under the June 2023 ad guidance linked above, section 3.1;
• Navigating tougher restrictions on environmental claims in advertising from Herbert Smith Freehills/ Lex March 27, 2024 is a very good round-up of what to look out for, as is Lewis Silkin's Environmental Advertising of April 2nd 2024, which includes the ASA and CMA perspective and a number of recent cases. 

FCA 

• Within the November 2023 introduction of their Policy Statement (see News above), comes a New FCA anti-greenwashing rule and guidance (TLT LLP/ Lex Feb 1, 2024). Guidance on these requirements is in draft; consultation closed 26 January; further commentary here from Reed Smith/ Lex January 25, 2024

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SECTION A OVERVIEW

SECTION B CONTENT RULES

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

The term ‘gambling’ means gaming, betting, and participating in a lottery, as defined in the Gambling Act 2005, and spread betting. Regulated marcoms include advertising by all types of gambling establishments, including online media platforms, for 'play for money' and 'play for free' products that offer the chance to win a prize or that explicitly or implicitly direct the consumer to a 'play for money' gambling product.

The rules that follow are largely from CAP (non broadcast) and BCAP (broadcast, i.e. TV and Radio), which we have brought together for ease of access. The other key influence is the IGRG Industry Code from April 2021. Some of their key provisions are channel-related and therefore found in our channel section C. Their social responsibility messaging requirements are shown under our point 1.8 below. Sectors/ services are in the following order:

1. GAMBLING RULES

1.1. Social responsibility

1.2. Problem gambling behaviour

1.3. Personal qualities / sexual success / resilience

1.4. Children and young people

1.5. Cultural beliefs

1.6. Access

1.7. Free bets

1.7.1. Qualification

1.7.2. Free

1.8. Social responsibility and age messaging / begambleaware

2. LOTTERIES

3. BETTING TIPSTER SERVICES

4. RULINGS AND GUIDANCE

5. EUROPEAN RECOMMENDATION

6. GENERAL ADVERTISING RULES

1. GAMBLING RULES

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

The new rules state that gambling and lottery ads must not: “be likely to be of strong appeal to children or young persons, especially by reflecting or being associated with youth culture.” This is a step-change from the existing rules that gambling ads must not be of ‘particular appeal’ to children. A ‘strong’ appeal test prohibits content (imagery, themes and characters) that has a strong level of appeal to under-18s regardless of how it is viewed by adults. In practice, this will significantly restrict the imagery and references that gambling ads will be allowed to use and should decrease the potential for gambling ads to attract the attention of under-18s in an audience. For example, ads will not be able to use:

• Topflight footballers and footballers with a considerable following among under-18 on social media. 
• All sportspeople well-known to under-18s, including sportspeople with a considerable volume of under-18 followers on social media.
• References to video game content and gameplay popular with under-18s.
• Stars from reality shows popular with under-18s, such as Love Island.

The rules came into effect on 1st October, 2022 and are included below 

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Section 16 of CAP and 17 of BCAP Code; the codes have rules that apply only to Gambling ads and separate rules for all marcoms that feature references to Gambling. CAP Code rules 16.1 and 16.2 are the gambling-specific rules. Rule 16.3 onwards apply to all marcoms that feature gambling. The distinction is more clearly set out in the equivalent section of the BCAP Code, where rules 17.3.1 to 17.3.10 are for all advertisements that feature gambling and 17.4 and 17.5 for gambling advertisements

CAPs August 2021 guidance Gambling advertising: responsibility and problem gambling is particularly important for interpreting some of these rules. Where space allows, some extracts are shown below, linked to the relevant clauses. For the rules on young people,  Gambling and lotteries advertising: protecting under-18s Advertising Guidance April 2022

1.1. Social responsibility

• Marketing communications for gambling must be socially responsible, with particular regard to the need to protect children Definition in this context People of 15 and under, young persons Definition in this context People of 16 or 17 and other vulnerable persons from being harmed or exploited (CAP 16.1)
• In line with rule 1.2, The rule Marketing communications must reflect the spirit not merely the letter of the code the spirit as well as the letter of the rules in this section apply whether or not a gambling product is shown or referred to (CAP 16.2)
• Marketing communications/ advertising must not portray, condone or encourage gambling behaviour that is socially irresponsible or could lead to financial, social or emotional harm (CAP 16.3.1 and BCAP 17.3.1); see September 2019 Coral ruling here 
• Marketing communications/ advertising must not condone or encourage criminal or anti-social behavior (CAP 16.3.16 and BCAP 17.4.2)

1.2. Problem gambling behaviour

• Suggest that gambling can provide an escape from personal, professional or educational problems such as loneliness or depression (CAP 16.3.3 and BCAP 17.3.2) CAP 'PROBLEM' GUIDANCE 6.1 Marketers should exercise strong caution when referring to characters’ or others’ personal problems. It is unlikely to be sufficient to rely on a depiction being seen as light-hearted or only implicitly signalling problem behaviours to avoid breaching the Code. Portrayals or references to emotional trauma or psychological distress – in particular, inter-personal problems affecting family or friendship groups – are likely to be regarded by the ASA as a breach of these rules. Marketers should not imply that gambling is a means of coping with personal, professional or educational problems.
• Suggest that gambling can be a solution to financial concerns, an alternative to employment or a way to achieve financial security (CAP 16.3.4 and BCAP 17.3.3) CAP 'PROBLEM' GUIDANCE 6.2 Marketing communications that unduly play on people's fears of financial pressures are likely to breach these rules, even where risks have been set out. Marketing communications should not present gambling as a viable alternative to employment. References to salary or debts in gambling marketing communications are likely to be regarded by the ASA as a breach of these rules. Alongside references to people's financial or employment circumstances, marketers should exercise heightened caution when obviously depicting groups that are likely to experience financial pressures, for example students. Marketing communications that unduly emphasize financial motivations for gambling are likely to be regarded by the ASA as a breach of these rules. Portrayals of the rewards of gambling should be reasonable and indicative of the rewards that can be obtained through responsible play. Marketers should also exercise caution wjhen depicting winners, avoiding the implication that a character has won easily and approaches that take advantage of people's hopes of winning or replicating the success depicted. Approaches that focus on gambling as a social activity or entertainment are less likely to breach the Code
• Portray gambling as indispensable or as taking priority in life; for example, over family, friends or professional or educational commitments (CAP 16.3.5 and BCAP 17.3.4)
• Suggest that solitary gambling is preferable to social gambling (CAP 16.3.11 and BCAP 17.3.10) CAP 'PROBLEM' GUIDANCE 5.2 Approaches that contrast solitary gambling with social gambling favorably are likely to be regarded by the ASA as a breach of these rules. The rules are not intended to prevent the portrayal of individuals gambling alone. However, marketers should exercise caution, especially when promoting online or mobile activities – including those accessible through social media – that more easily facilitate solitary play. Portraying or encouraging people gambling alone at inappropriate times or in inappropriate environments, such as late at night, are likely to breach these rules
• Condone or feature gambling in a working environment; an exception exists for licensed gambling premises (CAP 16.3.17 and BCAP 17.4.3) CAP GUIDANCE 5.3 Marketers are cautioned to avoid any portrayal of someone gambling in their working environment. The exception included in these rules does not extend to allowing the depiction of licensed premises staff gambling in their own working environment

1.3. Personal qualities / sexual success / resilience

Marcoms must not:

• Suggest that gambling can enhance personal qualities; for example, that it can improve self-image or self-esteem, or is a way to gain control, superiority, recognition or admiration (CAP 16.3.6 and BCAP 17.3.6) CAP 'RESPONSIBILITY' GUIDANCE 7.3 Marketing communications may feature attractive people, as long as the communication as a whole does not link gambling with these qualities. Portrayal of a character that is treated with admiration by others as a result of their gambling is likely to link gambling with improved self-image or self-esteem and would breach these rules. Marketing communications portraying a character’s transformation following their participation in gambling can link gambling with improved self-image or self-esteem and would breach these rules
• Link Gambling to seduction, sexual success or enhanced attractiveness (CAP 16.3.8 and BCAP 17.3.7) CAP 'RESPONSIBILITY' GUIDANCE 7.1 Marketing communications may feature attractive people, as long as the communication as a whole does not link gambling with seduction, sexual success or enhanced attractiveness. The ASA is likely to consider that the following approaches breach these rules: portrayal of a character who is treated with admiration by others as a result of their gambling; or portraying a character’s transformation (e.g. an individual becoming glamorous and popular) owing to their participation in gambling
• Portray Gambling in a context of toughness or link it to resilience or recklessness (CAP 16.3.9 and BCAP 17.3.8) CAP 'RESPONSIBILITY' GUIDANCE 7.2 Marketing communications will be judged on whether, as a whole, they create a link between gambling and resilience or toughness, or portray gambling in a context of toughness. Marketers should, for example, exercise caution when portraying character’s physical or mental strength in a way that links to their gambling behaviour. Marketing communications should avoid portrayals that could be interpreted as reckless gambling behaviour such as a character betting all their remaining chips. They should also avoid portrayals of other reckless behaviour that might imply a link to gambling

1.4. Children and young people

• From Section 16 of CAP and 17 of the BCAP Code; for the purposes of this section, ‘children’ are people of 15 and under and ‘young persons’ are people of 16 or 17
• It is an offence under Section 46 of the Gambling Act 2005 to invite a child or young person to gamble
• Gambling and lotteries advertising: protecting under 18s April 2022 Advertising Guidance (non-broadcast and broadcast) is important in this context; this a practical document with e.g. a helpful 'checklist' up front and explanations of what may constitute 'strong appeal' 

Marcoms must not:

• Exploit the susceptibilities, aspirations, credulity, inexperience or lack of knowledge of children, young persons or other vulnerable persons (CAP 16.3.2 and BCAP 17.4.4)
• Be likely to be of particular appeal to children or young persons, especially by reflecting or being associated with youth culture. They must not include a person or character whose example is likely to be followed by those aged under 18 years or who has a strong appeal to those aged under 18. Where appropriate steps have been taken to limit the potential for an advertisement to appeal strongly to under-18s, this rule does not prevent the advertising of gambling products associated with activities that are themselves of strong appeal to under-18s (for instance, certain sports or playing video games). CAP has published guidance on the application of the rule, including for advertising of gambling products associated with activities that are themselves of strong appeal to under-18s (CAP 16.3.12 and BCAP 17.4.5)
• Include a child or a young person. No-one who is, or seems to be, under 25 years old may be featured gambling or playing a significant role. No-one may behave in an adolescent, juvenile or loutish way (CAP 16.3.14 and BCAP 17.4.6)
• Suggest peer pressure to gamble, nor disparage abstention (CAP 16.3.7 and BCAP 17.3.5)
• Suggest gambling is a rite of passage (CAP 16.3.10 and BCAP 17.3.9)
• (Non broadcast) Be directed at those aged below 18 years (or 16 years for football pools, equal-chance gaming [under a prize gaming permit or at a licensed family entertainment centre], prize gaming [at a non-licensed family entertainment centre or at a travelling fair] or Category D gaming machines) through the selection of media or context in which they appear (CAP 16.3.13)
• Non broadcast: Individuals who are, or seem to be under 25 years old (18-24 years old) may be featured playing a significant role only in marketing communications that appear in a place where a bet can be placed directly through a transactional facility, for instance, a gambling operator’s own website. The individual may only be used to illustrate specific betting selections where that individual is the subject of the bet offered. The image or other depiction used must show them in the context of the bet and not in a gambling context (CAP 16.3.14) 
• Marcoms for family entertainment centres, travelling fairs, horse racecourses and dog racetracks, and for non-gambling leisure facilities that incidentally refer to separate gambling facilities for example as part of a list of facilities on a cruise ship, may include children or young persons provided that they are accompanied by an adult and are socialising responsibly in areas that the Gambling Act 2005 (as amended) does not restrict by age (CAP 16.4 and BCAP 17.5)

Cultural beliefs and Access

• Marketing communications must not exploit cultural beliefs or traditions about gambling or luck (CAP 16.3.15 and BCAP 17.4.1) CAP GUIDANCE Advertisements should avoid the use of cultural symbols and systems such as horoscopes if those symbols relate to an existing, strongly and communally held belief. These rules are not intended to prevent references to symbols or obsolete superstitions that are unlikely to be taken seriously, such as a clover leaf
• 1.6. Access. Advertisements for events or facilities that can be accessed only by entering gambling premises must make that condition clear (CAP16.5 and BCAP 17.2)

1.7. Free bets

• Marcoms must not materially mislead or be likely to do so (CAP and BCAP 3.1)
• 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 3.3 and BCAP 3.2)
• Guidance for Advertisers of Free Bets and Bonuses (February 2018). From that: ‘To sum up… Significant T&Cs likely to affect a consumer’s understanding of a promotion must be prominent in all advertising and positioned close to the headline offer. Advertisers’ own websites and emails are not limited by time and space and the full terms and conditions for offers should be easily accessible. In limited space media, less significant T&Cs can be one click away. “Money back” offers must be in cash, not bonuses. “Risk free” offers must incur no loss to the consumer. “Matched bets” – any stake limitation should be treated as a significant condition and stated up front.’
• The ASA ruling on Paddy Power July 2016 is a good example of some of the issues in gambling advertising on terms and conditions
• See also Promotional marketing: terms and conditions and significant conditions. Advice online; 15 February 2023

​

This issue (qualifications / free bets etc.) is also addressed by the Gambling Commission’s Social Responsibility Code provision 5.1.9:

• Licensees must ensure that their marketing communications, advertisement, and invitations to purchase (within the meaning of the Consumer Protection from Unfair Trading Regulations 2008) do not amount to or involve misleading actions or misleading omissions within the meaning of those Regulations

• Licensees must ensure that all significant conditions which apply to marketing incentives are provided transparently and prominently to consumers. Licensees must present the significant conditions at the point of sale for any promotion, and on any advertising in any medium for that marketing incentive except where, in relation to the latter, limitations of space make this impossible. In such a case, information about the significant conditions must be included to the extent that it is possible to do so, the advertising must clearly indicate that significant conditions apply and where the advertisement is online, the significant conditions must be displayed in full no further than one click away
• The terms and conditions of each marketing incentive must be made available for the full duration of the promotion

​

1.7.1. Qualification - all sectors

• Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify (CAP 3.9 and BCAP 3.10)
• Qualifications must be presented clearly (CAP 3.10 and BCAP 3.11)

1.7.2. Free - all sectors

• Marketing communications must not describe a product as ‘free”, ‘gratis’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding and collecting or paying for delivery of the item (CAP Section 3 Principle)
• Marketing communications must make clear the extent of the commitment the consumer must make to take advantage of a 'free' offer (CAP 3.23 and BCAP 3.25)
• 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 (CAP 8.18)

1.8. Social responsibility and age messaging / begambleaware

From the IGRG code 6th edition September 2020

1.8.1. Social responsibility messaging

• It is good practice to include social responsibility messaging in all forms of gambling where it is practicable to do so, however, it is a requirement of the Industry code that messaging should appear on all broadcast media (para 21 IGRG code)
• The Senet Group has adopted the strapline of ‘Take time to think’. Although that line is trademarked, the Senet Group has also made it available for the use of non-members 

1.8.2. Inclusion of http://www.begambleaware.org in advertising

• The website address https://www.begambleaware.org/ should be carried on all print and broadcast advertising where it is feasible, practical, and necessary to do so. It should be presented in such a way that it is clearly legible (para 27 IGRG code)
• The website address alone is sufficient to meet the basic requirement of the code, but where practical operators should consider using the words ‘For more information and advice visit…’ before referring to the website (para 29 IGRG code)
• The second edition of the IGRG code introduced additional requirements for the prominence of gambleaware.co.uk in advertising and self-evidently they must also apply to the use of begambleaware.org. They were (para 30):

• For television advertising that gambleaware must remain on the screen for at least 10% of the advert’s length; and
• For print advertising that it should be clearly legible in proportion to the advertising script
• For digital advertising it should be a minimum of 100px across

18+

• It is a specific requirement (introduced in the second edition of the Code) that every television and print advert should carry clearly either a ‘18+’ symbol or a ‘no under 18s’ type message, except in the case where lotteries are being marketed. In the case of lotteries a comparable ‘no under 16s’ message should appear (IGRG code para 46)

2. LOTTERIES INCLUDING THE NATIONAL LOTTERY

 A separate set of rules governs the advertising of lotteries: Section 18 of the BCAP Code and Section 17 of the CAP Code. These are broadly similar to the gambling rules of both codes

• The minimum age limit for purchasing lottery products is 18; the minimum age limit for participation in society lotteries is 16; see guidance linked below for implications 
• 'This section applies to the marketing communications of the National Lottery and 'large' society lotteries licensed and regulated by the Gambling Commission and, in the case of 'small' society lotteries, those promoters registered with local authorities in England and Wales or licensing boards in Scotland' (CAP principle Section 17)
• Don't gamble on what appeals to kids March 2022,  Gambling and lotteries advertising: protecting under-18s (April 2022) and Gambling advertising: responsibility and problem gambling (August 2021) are very important guidance documents 

​

• Marcoms must not portray, condone or encourage gambling behavior that is socially irresponsible or could lead to financial, social or emotional harm (BCAP 18.2.1 and CAP 17.1) or
• Marcoms must not suggest that participating in a lottery can provide an escape from personal, professional or educational problems such as loneliness or depression or
• Marcoms must not suggest that participating in a lottery can be a solution to financial concerns, an alternative to employment or a way to achieve financial security. Advertisers may, however, refer to other benefits of winning a prize  (BCAP 18.2.2 to 18.2.4 and CAP 17.1 to 17.3) And marcoms must not:

• Portray participating in a lottery as indispensable or as taking priority in life for example, over family, friends or professional or educational commitments
• Suggest peer pressure to participate in a lottery or disparage abstention
• Suggest that participating in a lottery can enhance personal qualities, for example that it can improve self-image or self-esteem or is a way to gain control, superiority, recognition or admiration
• Link participating in a lottery to seduction, sexual success or enhanced attractiveness
• Portray participation in a lottery in a context of toughness or link it to resilience or recklessness
• Suggest participation in a lottery is a rite of passage
• Suggest that solitary gambling is preferable to social gambling
  (BCAP 18.2.4. to 18.2.10 and CAP 17.4 to 17.10)

The following are rules from the BCAP Code 18.3 to 18.10 and the CAP Code 17.11 to 17.19. These are the rules that are specific to ads promoting lotteries rather than ads featuring them

• Marketing communications for lotteries that can be participated in only by entering gambling premises must make that condition clear

• Marketing communications for lotteries must not exploit the susceptibilities, aspirations, credulity, inexperience or lack of knowledge of children, young persons or other vulnerable persons (CAP 17.12; BCAP 18.4 replaces children and young persons with 'under18s')
• Marketing communications/ advertisements for lotteries must not be likely to be of strong appeal to children or young persons, especially by reflecting or being associated with youth culture. They must not include a person or character whose example is likely to be followed by those aged under 18 years or who has a strong appeal to those aged under 18
  Where the subject of a lotteries product (for example, good causes benefitting from lottery funds) or features of the product itself (for example, the creative content, gameplay or a prize involved) are of strong appeal to under-18s, a marketing communication for that lottery may depict the subject and/or product, but it must not feature a person or character whose example is likely to be followed by those aged under 18 years or who has a strong appeal to those aged under 18
  Lotteries marketing communications/ advertisements that solely depict the good causes supported by the lottery may include persons or characters whose example is likely to be followed by those aged under 18 years or who has a strong appeal to those aged under 18 provided that: 

• they are directly associated with the lottery good cause (for example, an athlete who has received lottery funding directly)
• there is no explicit encouragement to purchase a lottery product; and
• there is no reference to scratchcards or online instant-win lottery products

​​Lotteries marketing communications including product references that comply with rule 17.16.2 (CAP) / 18.7.2 (BCAP) are also acceptable (CAP 17.13 and BCAP 18.5)
BCAP adds to this clause whole clause 'Please refer to Section 32 for scheduling restrictions.'

• Marketing communications for lotteries should not be directed at those aged under 16 years through the selection of media or context in which they appear (CAP 17.14)​
• Marketing communications for lotteries must not feature anyone who is, or seems to be, under 25 years old (under-25s) participating in gambling (CAP 17.15 and BCAP 18.6)
• (CAP 17.16 and BCAP 18.7) Marketing communications for lotteries which include any reference to scratchcards or online instant-win lottery products must not feature under-25s in a significant role. Other marketing communications for lotteries must not feature under-25s in a significant role unless either:

• (CAP 17.16.1 and BCAP 18.7.1) The under-25s are featured solely to depict the good causes supported by the lottery and there is no explicit encouragement to purchase a lottery product; or 
• The lottery primarily benefits under-25s (including in a family setting) and the under-25s featured are representative of the primary beneficiaries of the lottery (CAP 17.16.2 and BCAP 18.7.2) 

​

Marcoms must not:

• Exploit cultural beliefs or traditions about gambling or luck
• Condone or encourage criminal or antisocial behaviour
• Condone or feature gambling in a working environment (an exception exists for workplace lottery syndicates and gambling premises)
  CAP 17.17. to 17.19 and BCAP 18.8 to 18.10

3. BETTING TIPSTERS SERVICES

The BCAP Code carries Section 21 Betting Tipsters

The most significant and helpful information on this issue, despite its age, is Guidance on making responsible prediction claims in betting tipster marketing. Advertising guidance from CAP and BCAP 04 Jan 2016. The guidance covers 'proofing' forecasts, exaggerated success claims, track record claims and opinions/ testimonials 

4. RULINGS AND CAP GUIDANCE

ASA rulings page here. There’s a search facility

Social responsibility 

Paddy Power ruling June 2022; commercial here

Above re gambling taking priority/ social responsibility

Coral ruling Aug 2022; AV here (may be taken down)

Strong appeal (re the rules introduced October 2022)

Ladbroke's ruling 21 December 2022

Above is a breach of the new rules 

Paddy Power/ Peter Crouch ruling Feb 2023

Above rules that PC does not have 'strong appeal' to kids

Ditto Micah Richards SkyBet ruling Feb 8

Appeal to children

Betway £400,000 fine marketing to children Sept 2022; from the GC

Coral Interactive ASA ruling June 2018

Targeting

WHG International ltd (William Hill) September 2018

Harnessing new technology to tackle irresponsible gambling ads targeted at children. ASA and CAP News 04 Apr 2019

Featuring under-25s

‘The advertising codes prevent anyone under the age of 25 from appearing in gambling advertising. The only exception to this rule is 18-24 year olds who are the subject of the bet being advertised, but only when the ad appears in a medium where the bet is offered; so websites with a transactional facility are in, but Twitter doesn’t count. This is illustrated by rulings on Coral, Hillside and Ladbrokes

Terms and Conditions

Online gambling TonyBet fined £442,750

Above from the GC January 18, 2023

William Hill Organization Ltd February 2018

Paddy Power March 2022

Problem gambling

July 2021 ruling on Ladbrokes TV commercial; significant here is the ASA interpretation of depictions of gambling 'addiction';

They pointed to Gambling Advertising: responsibility and problem gambling (April 2018)

Gambling and lotteries advertising: protecting under-18s Advertising Guidance (non-broadcast and broadcast). April 2022

Gambling advertising: responsibility and problem gambling Advertising Guidance (non-broadcast and broadcast). August 2021

Don't gamble on what appeals to kids. CAP News March 9, 2023

Advertising Guidance - Age-restricted ads online. Advertising guidance 10 Nov 2022

Promotional marketing: terms and conditions and significant conditions. Advice online 15 Feb 2023

Guidance for Advertisers of Free Bets and Bonuses

5. EU COMMISSION RECOMMENDATION

EU Commission Recommendation 2014/478/EU on common principles for the protection of consumers and players of online gambling services and for the prevention of minors from gambling online: this is a recommendation (and therefore non-binding) on responsible gambling advertising, with particular focus on minors (Chapter IV) and covering inter alia commercial communications (Chapter VIII) and sponsorship (Chapter IX). We're aware that the UK has left the EU; this is here for those who might be 'exporting.'

6. GENERAL ADVERTISING RULES

• As well as the specific sector rules provided by CAP and BCAP (in Sections 16 and 17 respectively), and by the Gambling Commission and IGRG, gambling advertisers, as with all other advertisers, are required to observe the rules for misleadingness, taste and decency etc. that apply to all advertising
• Where most issues arise, and the gambling sector is far from an exception, is in the CAP Code Section 3 and the BCAP Code, also Section 3, which address misleading advertising
• While CAP and BCAP are clearly advertising’s principal regulatory regime, It is also valuable to be aware of the statutory influence in marketing communications, in this case the Consumer Protection from Unfair Trading Regulations 2008 (CPRs), transposing the Unfair Commercial Practices Directive 2005/29/EC. Reference to the CPRs is made in the Gambling Commission’s LCCP Social Responsibility Code provision 5.1.9. 

   

General rules are set out in full under the general tab below

SECTION B CONTENT RULES

1. SELF-REGULATION: THE CAP AND BCAP CODES

1.1. Recognition of advertising/ marketing communications

1.2. Misleadingness

1.2.8. Comparisons

Comparisons with Identifiable competitors

Other comparisons

Price comparisons

Imitation and denigration

1.2.9. Endorsements and testimonials

1.3. Harm and offence
Health/ safety
Social responsibility

Gender stereotyping

1.4. Environmental claims

2. LEGISLATION IN ADVERTISING (Content)

2.1. CPRs and BPRs/ Unfair Commercial Practices Directive

2.2. Ofcom Broadcasting Code/ AVMS Directive

2.3. Pricing

The scope of the CAP code is here and BCAP here

1.1. Recognition of marketing communications

CAP Code Section 2

• The CAP code provides that ‘… marketing communications must be identifiable as such’ (rule 2.1). This means that ‘they need to be designed and presented in a way that makes it clear that it is advertising material’ (From September 2016 Advice online, ‘Recognising marketing communications: Overview’)

• Additionally, it provides that ‘Unsolicited e-mail marketing communications must be obviously identifiable as marketing communications without the need to open them’ (rule 2.2). ‘The medium or targeting will also be relevant when deciding what is necessary to ensure that consumers know they are viewing a marcom. Consumers should be able to tell from the envelope itself that a direct mailing is a marketing communication (Also from Recognising marketing communications: Overview)

• Also, ‘Marketing communications must not falsely claim or imply that the marketer is acting as a consumer. Definition. A consumer is anyone who is likely to see a given market communication, whether in the course of business or not.(CAP Code, Scope of Code) or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context’ (rule 2.3)

• Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them ‘advertisement feature’’ (rule 2.4)

• On the other hand, using terms like ‘sponsorship’, ‘sponsored content’ and ‘in association with’ to describe an advertisement feature is unlikely to be acceptable, and the advertisement will not be considered clear. This was ruled by the ASA in Michelin Tyre plc and Telegraph Media Group Ltd 2015

• For more detailed discussion on what is and isn’t acceptable, see CAP’s Guidance Recognising ads: advertisement features 

• And CAP News in March 2021: Influencing Responsibly - Make clear upfront when ads are ads

BCAP Code, Section 2: Recognition of advertising

• Advertisements must be obviously distinguishable from editorial content, especially if they use a situation, performance or style reminiscent of editorial content, to prevent the audience being confused between the two. The audience should quickly recognise the message as an advertisement (rule 2.1)

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

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

• Television advertisements, except for programme promotions must not:
   

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

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

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

1.2.1. General

• Marketing communications/ advertisements must not materially mislead, or be likely to materially mislead (CAP Code, rule 3.1; BCAP Code, rule 3.1)
   

  • When determining whether a business-to-consumer advertising is misleading, the ASA will apply the tests included in the CPRs. See the Statutory Regulation/ the Consumer Protection from Unfair Trading Regulations 2008/ Regulation 5 Misleading Actions section of this document for further information.

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

• Obvious exaggerations (‘puffery’) and claims that the average consumer who sees the marketing communication is unlikely to take literally are allowed provided they do not materially mislead (CAP Code, rule 3.2; BCAP Code, rule 3.4)

1.2.2. Substantiation

• Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation (CAP Code, rule 3.7; BCAP Code, rule 3.9)

• Subjective claims must not mislead the consumer/ audience. Marketing communications/ advertisements must not imply that expressions of opinion are objective claims (CAP Code, rule 3.6; BCAP Code, rule 3.5)

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

• Claims for the content of non-fiction publications should not exaggerate the value, accuracy, scientific validity or practical usefulness of the product. Note: For the purposes of the CAP Code, product means goods, services, ideas, causes, opportunities, prizes or gifts. Marketers must ensure that claims that have not been independently substantiated but are based merely on the content of a publication do not mislead consumers (CAP Code, rule 3.8). CAP has published a Help Note on the Marketing of Publications.

Example rulings

1. A claim that a company had ‘the most comfortable beds in the world’ was considered by the ASA not to be misleading because it was subjective, as the favoured type of mattress would differ between consumers:
   ASA Ruling on Hypnosis, 2014

2. Conversely, claims that drain cleaning products were No.1 for Bathroom Plughole Blockages’ and No. 1 for Kitchen Blockages’ were not puffery and therefore misleading. The ASA considered that the claims implied that the products were the best-selling ones in their category, however the Company that produced them could not demonstrate that they outsold their competitors’ products:
   ASA Ruling on Challs International Limited, 2016

3. The ASA ruled that claims such as ‘improves fuel combustion which means better MPG and lower CO2 emissions for both petrol and diesel engines’, ‘Cuts emissions by 30-50% and improves MPG’, and ‘makes a positive environmental contribution to a cleaner atmosphere’ were in breach of the CAP Code because the advertiser did not hold adequate supporting evidences. In this case, the advertiser provided documentation including press releases, details of tests, customer testimonials and magazine articles, however this was not considered sufficient for the purposes of the Code:
   D Lock & Associates t/a Broquet, 2016

• Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner. Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means (CAP Code, rule 3.3; BCAP Code, rule 3.2)

• Marketing communications must not materially mislead by omitting the identity of the marketer. Some marketing communications must include the marketer's identity and contact details. Marketing communications that fall under the Database Practice or Employment sections of the Code must comply with the more detailed rules in those sections. Marketers should note the law requires marketers to identify themselves in some marketing communications. Marketers should take legal advice (CAP Code, rule 3.5; BCAP Code, rule 3.6)

For marketing communications that quote prices for advertised products, material information [for the purposes of rule 3.3] includes:

• The main characteristics of the product

• The identity (for example, a trading name) and geographical address of the marketer and any other trader on whose behalf the marketer is acting

• The price of the advertised product, including taxes, or, if the nature of the product is such that the price cannot be calculated in advance, the manner in which the price is calculated

• Delivery charges

• The arrangements for payment, delivery, performance or compliant handling, if those differ from the arrangements that consumers are likely to reasonably expect

• That consumers have the right to withdraw or cancel, if they have that right (see rule 3.55 marketers must promptly refund consumers who make valid claims under an advertised money-back guarantee)

Example rulings

1. In December 2015, the ASA held that an online travel agent’s website omitted material information because it displayed the price of a flight that included a pre-applied discount, which was only available to consumers paying via a pre-paid Visa card. Therefore, it was misleading and in breach of Rule 3.3 of the CAP Code and 3.2 of the BCAP Code
   ASA Ruling on Opodo Ltd, 2015
    

2. In December 2017 All Care, a care service website, omitted material information because it suggested that DBS (Disclosure & Barring checks) would be paid for all, when they only paid for employees who stayed longer than a year. Another claim ‘Rates of pay £8.30 per hour Monday through Friday’ was taken to mean that that rate would apply for all hours worked including travel time between clients during working hours. Carers were only paid for the hours delivering care and were not paid for travel time between clients; the ad did not make that clear:
   ASA ruling on All Care Dec2017
    

3. In May 2016 the ASA ruled that a sales promotion featured on a betting slip featured text that offered a self-service £2 free bet. Advertiser Ladbrokes stated that the promotion disclosed the signification condition ‘Promotion runs whilst stocks last’ on their website and on posters, but the betting slips themselves had not included that; the ASA considered this was material information that should have been made sufficiently clear in a qualifying statement at the very least
   https://www.asa.org.uk/rulings/ladbrokes-betting-gaming-ltd-a15-321841.html

• Advertisements must not falsely imply that the advertiser is acting as a consumer or for purposes outside its trade, business, craft or profession. Advertisements must make clear their commercial intent, if that is not obvious from the context (BCAP Code, rule 3.7; also CAP Code rule 2.3 under Advertisement recognition)

• No advertisement may use images of very brief duration, or any other technique that is likely to influence consumers, without their being fully aware of what has been done” (BCAP Code, rule 3.8)

1.2.3. Qualifications

• Advertising must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify (CAP Code, rule 3.9; BCAP Code 3.10)

• Any qualifications of a claim must be clearly presented (CAP Code, rule 3.10; BCAP Code 3.11).

• CAP publishes Guidance for Qualification claims

• Additionally, BCAP has published a Guidance on Superimposed Text to help broadcasters ensure compliance with rule 3.11

• Marketing communications/ advertisements must not mislead consumers by exaggerating the capability or performance of a product or service (CAP Code, rule 3.11; BCAP Code, rule 3.12)

• Marketing communications/ advertisements must not present rights that consumers are afforded by the law as a distinctive feature of the advertiser’s/marketer’s offer (CAP Code rule 3.12; BCAP Code rule 3.13)

• Marketing communications/ advertisements must not suggest that their claims are universally accepted if a significant division of informed or scientific opinion exists (CAP Code, rule 3.13; BCAP Code, rule 3.14)

• Advertisements must not mislead about the nature or extent of the risk to consumers’ personal security, or that of their families, if they do not buy the advertised product or service (BCAP Code, Rule 3.15)

Example rulings

1.In January 2014 the website for a company marketing a ‘Water Fuel Cell’ product, designed to convert water into HHO gas. The home page (www.waterfuelcell.co.uk) included the headline claim "Save Fuel, Save Money & Save the Environment". The ASA considered that the claims had not been substantiated and that the video exaggerated the capabilities of the product:

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

2. In July 2017, the ASA ruled against an email for Etihad Airways offering an upgraded seat after a flight was purchased with Etihad. It included text which stated ‘Upgrade to experience our business studio’. An image included in the ad showed a cabin that featured a horizontal and dressed bed with a bedside table and other storage space. The ASA considered the ad exaggerated the benefit of purchasing a Business Class cabin product and CAP Code rules 3.1 and 3.3 (Misleading Advertising), and 3.11 (Exaggeration)

3. A July 2015 ruling on a press ad headed ‘For the perfect age look rejuvenated irresistibly radiant’, which featured an image of Helen Mirren's face under the heading ‘Age perfect’: the complainant challenged whether the ads misleadingly exaggerated the likely effect that could be achieved by consumers. The ASA did not uphold the complaint, considering that recent press images of Ms. Mirren would have reflected similar professional styling and make-up as the ad images, without any post-production amendments, and that her appearance in the ads was comparable to those more candid images:
https://www.asa.org.uk/rulings/loral-uk-ltd-a15-297452.html

1.2.5. Prohibited claims

Prohibited claims are prohibited regardless of any substantiation provided in support of them (CAP Code and BCAP Code, Prohibited Claims).

• A marketing communication must not claim that products can facilitate winning a game of chance (CAP Code, rule 3.14; BCAP Code, rule 3.16)

• Marketing communications must not specifically claim that the advertiser’s job or livelihood is at risk if the consumer does not buy the product (CAP Code, rule 3.15; BCAP Code, rule 3.17)
• A marketing communication must not promote a pyramid promotional scheme (CAP Code, Rule 3.16)

Note: stating prices correctly in advertising can be difficult from a regulatory perspective. If uncertain, check with your/ your client’s lawyers. The following, as with all of the contents of this website, does not constitute advice, just what the rules say. See also the later Legislation section (point 2) or some significant case law

Price statements in marcoms/ advertisements should take account of the Guidance for Traders on Pricing Practices from the Chartered Trading Standards Institute (CAP Code, Prices Background). Price statements include statements about the manner in which the price will be calculated as well as definite prices

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

Ensure prices match the product shown

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

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

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

Additional CAP advertising guidance

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

Retailers’ Price Comparisons February 2013

 Lowest Price Claims and Price Promises February 2013

Availability September 2016

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

Principle

Marketing communications must not advertise a product as ‘free’, ‘gratis’, ‘without charge’ or similar if the consumer has to pay anything other than an unavoidable cost of responding and collecting or paying for delivery of the product (CAP Code and BCAP Code, ‘Free’ Claims Principle)

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

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

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

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

• Keep your “free” claims problem-free. CAP News 22 October 2020 and issued again September 30, 2021. Covers pure ‘free’ claims, ‘Conditional purchase’ promotions (Marketers are allowed to use the term 'free' in situations where receiving a free product or service is contingent on consumers purchasing another item - provided the quality of the paid-for item has not been reduced, and the paid-for item’s price has not been increased to cover the cost of supplying the free item) and Package Offers, with links to other guidances on the topic and some relevant rulings

Rulings search ‘free’

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

Example ruling

A February 2014 ruling upheld a complaint about a Bet 365 TV commercial and claims on the website www.bet365.com, which promoted a ‘Free Bet Offer’. The terms stated ‘Free bet winnings exclude stake’.  However, customers would have to place their own stake again in order to make the next bet, and would not be offered an additional free stake or matched stake by the advertisers.  On that basis, the ASA did not consider that the promotion offered winning customers any 'free' element when making their subsequent bet:

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

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

Comparisons with identifiable competitors

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

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

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

Other comparisons

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

Price comparisons

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

CAP also publishes useful Help Notes on Retailers’ Price Comparisons and Lowest Price Claims and Price Promises. The ASA will take CTSI guidance into account when assessing price claims in advertising

Rulings search ‘Comparisons’

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

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

• Marketing communications/ advertisements must not mislead consumers about who manufactures the product (CAP Code, rule 3.41; BCAP Code, rule 3.41)

• Marketing communications/ advertisements must not discredit or denigrate another product, advertiser or advertisement, or a trade mark, trade name or other distinguishing mark (CAP Code, Rule 3.42; BCAP Code, rule 3.42)

• Marketing communications/ advertisements must not take unfair advantage of the reputation of a competitor’s trade mark, trade name or other distinguishing mark or of the designation of origin of a competing product (CAP Code, rule 3.43; BCAP Code, rule 3.43)

• Marketing communications/ advertisements must not present a product as an imitation or replica of a product with a protected trade mark or trade name (CAP Code, rule 3.44; BCAP Code, rule 3.44)

Rulings search ‘Denigration’

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

Advertising that includes endorsements or testimonials may also be subject to Section 6: Privacy

• Marketers must hold documentary evidence that a testimonial or endorsement used in a marketing communication is genuine, unless it is obviously fictitious, and hold contact details for the person who, or organisation that, gives it. CAP Code, rule 3.45)

• Testimonials or endorsements used in advertising must be genuine, unless they are obviously fictitious, and be supported by documentary evidence. Testimonials and endorsements must relate to the advertised product or service. Claims that are likely to be interpreted as factual and appear in advertisements must not mislead or be likely to mislead (BCAP Code, rule 3.45)

• Claims that are likely to be interpreted as factual and appear in a testimonial must not mislead or be likely to mislead the consumer (CAP Code, rule 3.47)

• Testimonials must relate to the advertised product or service (CAP Code, rule 3.46; BCAP Code, rule 3.45)

• Marketing communications/ advertisements must not feature a testimonial without permission (CAP Code, rule 3.48; BCAP Code, rule 3.46) Exceptions are normally made for accurate statements taken from a published source, quotations from a publication or references to a test, trial, professional endorsement, research facility or professional journal, which may be acceptable without express permission (CAP Code only for this caveat, rule 3.48)

• Advertisements must not display a trust mark, quality mark or equivalent without the necessary authorisation. Advertisements must not claim that the advertiser (or any other entity referred to), the advertisement/ marketing communication or the advertised product or service has been approved, endorsed or authorised by any person or body if it has not, or without complying with the terms of the approval, endorsement or authorisation (CAP Code, rule 3.50; BCAP Code, rule 3.47)

• Marketers must not refer in a marketing communication to advice received from CAP or imply endorsement by the ASA or CAP (CAP Code, Rule 3.49)

• Marketing communications/ advertisements must not falsely claim that the marketer/ advertiser, or other entity referred to in the marketing communication/ advertisement, is a signatory to a code of conduct. They must not falsely claim that a code of conduct has an endorsement from a public or other body (CAP Code, rule 3.51; BCAP Code, rule 3.48)

• Marketing communications must not use the Royal Arms or Emblems without prior permission from the Lord Chamberlain’s office. References to a Royal Warrant should be checked with the Royal Warrant Holders’ Association (CAP Code, rule 3.52)

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

Rulings search ‘Endorsements and testimonials’

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

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

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

Health/ safety

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

Social responsibility

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

Advertising guidance on social responsibility

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

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

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

Rulings search ‘Offense’

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

Some rulings

1.September 2015: a national press ad for Paddy Power featured odds on the candidates for the 2015 FIFA presidential election. An image showed Sepp Blatter revealing the winner by holding up a piece of paper which said ‘ME’. Text at the top of the ad stated, "JUST F**K OFF ALREADY!". Because the ASA did not consider the ad would be offensive to those who were likely to see it, it was concluded that it was unlikely to cause serious or widespread offence.

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

2.July 2014. Trocaderos South Shields. A posting on the TrocStars' Facebook page featured a poster with an image of two women both drinking from large glasses and text which stated "Got yourself drunk at Trocs? Woke up in someone else's bed? Walk of shame? F*ck that, it's the stride of pride!" Because the ad used offensive language, encouraged excessive drinking and linked alcohol with sexual activity, the ASA concluded that it was irresponsible and in breach of the advertising Code (rule 4.1, Harm and offence)
https://www.asa.org.uk/rulings/camerons-brewery-ltd-and-trocaderos-south-shields-a14-269470.html

3. February 2014: a TV ad for Kabuto noodles featured on-screen text that stated "The improvised ad break" and "Scenario #3 Kabuto Samurai (dubbed)". The ad featured four actors on a stage in front of an audience. Two of the actors were speaking in an accent, which the remaining two actors were ‘translating’. The complainant stated the ad was offensive because it mocked other cultures and races. The ASA considered that the humour was derived from the fictitious translation, rather than from mocking the culture and race of others. Whilst it was acknowledged that some viewers may find the ad distasteful, the ASA did not consider it was likely to cause serious or widespread offence, or encourage harmful and discriminatory behaviour or treatment. On that basis, it was concluded that the ad did not breach the Code:
https://www.asa.org.uk/rulings/kabuto-foods-ltd-a13-250344.html

• CAP Code Section 11:
  https://www.asa.org.uk/type/non_broadcast/code_section/11.html
• BCAP Code Section 9:
  https://www.asa.org.uk/type/broadcast/code_section/09.html
• CAP News/ guidance 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

• CMA Green claims guidance September 2021

• ASA statement on environmental claims September 2021

• Misleading environmental claims and social responsibility December, 2021 

The CAP and BCAP codes

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

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

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

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

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

EC guidance

For those responsible for application of environmental claims beyond the U.K., the Commission's 2021 Guidance on the interpretation and application of Directive 2005/29/EC includes 'environmental claims' under Section 4.1.1. 

2.1. The CPRs and BPRs

The Consumer Protection from Unfair Trading Regulations 2008 (the CPRs)

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

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

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

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

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

(i) prejudice respect for human dignity

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

(iii) encourage behaviour prejudicial to health or safety

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

While the statutory measures are well covered/ reflected in Self-Regulation set out under pt. 1.2.6, it’s as well to know the provisions in law. Equally, price statements in marcoms can be very sensitive and should be reviewed by legal advisors

Legislation

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

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

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

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

Key case

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

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

The CPRs and price in advertising

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

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

SECTION B CONTENT RULES

1. SELF-REGULATION; the ICC Code

1.1. General provisions

2. THE LAW 

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

2.2.3. Extracts from the ICC Code related to pricing

2.2.4. The AVMS Directive 

​
 

1.1 General provisions 

Basic principles (Art. 1)

• All marketing communications should be legal, decent, honest and truthful;
• All marketing communications should be prepared with a due sense of social 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.