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How is harmful and offensive advertising regulated? [For example, advertising content that may be obscene, blasphemous, offensive to public morals or decency, or offensive to protected minorities or characteristics?]
Section 4 in both CAP Codes covers harm and offence with similar, but not identical, provisions.
Offence
Marketing communications must not contain anything that is likely to cause serious or widespread offence, and particular care must be taken to avoid causing offence on certain specified grounds, including disability, gender, race, religion and sexual orientation.
However, compliance is judged on the context, medium and audience, and marketing communications may be distasteful without breaching the rule on serious or widespread offence. Advertising that is offensive in some contexts may therefore be acceptable in others. Further, the fact that a product is offensive to some people is not grounds for finding a marketing communication in breach.
In keeping with this balanced approach, the ASA upholds relatively few complaints for offensiveness, despite offence being the most common basis for complaint.
Harm – general advertising rules
Marketing communications:
- must not cause unjustifiable fear or distress, and broadcast ads must not exploit the audience’s fears or superstitions. In non-broadcast ads, marketers must not use a shocking claim or image merely to attract attention.
- must not make materially inaccurate claims about the nature and extent of risk to the personal security of the consumer if they do not purchase a product. This is a banned practice under the CPRs.
- may, in the case of charities and good causes, attempt to shock to arouse sympathy for the advertiser’s cause. In general, the ASA takes a sympathetic view of such hard-hitting ads.
- must contain nothing that is likely to condone or encourage violence or anti-social behaviour.
- must not condone or encourage an unsafe practice.
- must not portray anyone who is, or seems to be, under 18, in a sexual way, except to promote the welfare of, or to prevent harm to, under-18s.
- must not include gender stereotypes that are likely to cause harm, or serious or widespread offence.
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How is unfair and misleading advertising regulated? [Briefly describe the law and regulation applying to unfair and misleading advertising in your jurisdiction. Cover any specific unfair or misleading practices that are prohibited, as well as the general category of misleading advertising]
Unfair commercial practices, including advertising, by a trader to a consumer are banned under the CPRs. A practice is unfair if it contravenes the requirements of professional diligence; and materially distorts, or is likely to materially distort, the economic behaviour of the average consumer with regard to the product.
“Professional diligence” is the standard of skill and care consistent with honest market practice or the general principle of good faith in the trader’s field of activity.
Misleading actions, misleading omissions and aggressive practices are also unfair and therefore banned. A commercial practice is a misleading action if it contains false information, or is otherwise deceptive, or if it creates confusion with a competitor, and in either case is likely to cause the average consumer to take a transactional decision they would not have taken otherwise. It is a misleading omission if it omits, hides, or otherwise fails to make clear information which the average consumer needs to take an informed transactional decision.
The CPRs also include 31 practices which are banned regardless of whether they have any effect on the consumer’s behaviour. These include:
- presenting paid-for advertising content as editorial.
- falsely claiming or creating the impression that the trader is not acting for business purposes.
- directly exhorting children to a product or persuade an adult to buy a product for them.
- describing a product as “free” or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.
- creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when claiming the prize will require the consumer to incur a cost.
B2B advertising is misleading, and therefore banned under the BPRs, if it in any way deceives or is likely to deceive traders to whom it is addressed or whom it reaches, and thereby affects or is likely to affect their economic behaviour or injure a competitor.
Section 3 of each of the CAP Codes contains detailed rules on misleading advertising. In addition to repeating the general rules under the CPRs and BPRs, as above, the CAP Codes also contain rules on:
- Substantiation, including that, before using a marketing communication, marketers must hold documentary evidence to prove all objective claims;
- Limitations and qualifications (often referred to as “disclaimers”), including that marketing communications must clearly state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify;
- Pricing and use of the word “free”;
- Availability of products;
- Comparisons;
- Imitation and denigration;
- Endorsements and testimonials; and
- Guarantees and after-sales service.
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Do any specific rules restrict advertising for the following product sectors? If so, how? a. Alcohol b. Tobacco and related products, such as vapes and nicotine pouches c. Medicines, medical devices and surgical or medical procedures d. High fat, salt and sugar foods e. Gaming and gambling services f. Adult and sex-related services
Alcohol
There is no UK legislation restricting alcohol advertising, save for prohibiting price promotions and Scottish law imposing a minimum price. However, the CAP Codes both include sections on alcohol advertising.
Alcohol advertising must:
- be socially responsible;
- not encourage excessive drinking or suggest that drinking can overcome boredom, loneliness or other problems;
- not exploit the young, the immature or those who are mentally or socially vulnerable;
- not show people drinking or playing a significant role if they are, or look, under 25, or behaving in an adolescent or juvenile way;
- not be associated with those under 18 or reflect youth culture;
- not suggest that drinking alcohol is a reason for the success of any personal relationship or social event; and
- not link alcohol with seduction, sexual activity or sexual success, or with brave, tough or daring people or behaviour.
The Portman Group (which regulates social responsibility, labelling, packaging and promotion of alcohol) also has a voluntary Code of Practice covering the promotion of alcoholic drinks. It operates an Independent Complaints Panel which can seek to enforce its rules through notice to retailers asking them not to stock products in breach of the Code, unless and until they have been appropriately amended. A number of the largest UK alcoholic drinks manufacturers have submitted to this Code.
Tobacco and related products, such as vapes and nicotine pouches
In the UK, tobacco advertising is prohibited under the Tobacco Advertising and Promotion Act 2002. Under the Standardised Packaging of Tobacco Products Regulations 2015, the appearance of cigarettes and packaging is strictly standardised. Only minimal branding is permitted.
E-cigarettes may be advertised, but must not call to mind tobacco brands or promote tobacco products. No medicinal claims may be made. E-cigarette ads may not be directed to, or appeal to, people under 18.
There is currently a gap in regulation for the advertising of non-tobacco nicotine pouches, to which no restrictions currently apply, though it is expected this gap will soon close. Until then, any advertising of such products to children, or in a manner that promotes tobacco products, although not specifically prohibited, is likely still to breach the CAP Code rules on responsible advertising.
Medicines, medical devices and surgical or medical procedures
Prescription-only medicines may not be advertised to consumers.
Over-the-counter medicines, medical devices and surgical and medical procedures may be advertised. However, a high standard of substantiation is required, consisting of trials conducted on people if relevant. In particular, “new” or “breakthrough” claims usually require at least one experimental human study (ideally double-blind and placebo-controlled) and often observational human studies.
Marketers must not discourage essential treatment for conditions for which medical supervision should be sought, and must not offer specific advice on, diagnosis of or treatment for such conditions, other than under the supervision of a suitably qualified health professional. However, accurate and responsible general information about such conditions may be offered.
There is a complex web of codes and guidance in relation to the advertising of medicines and medicinal products. The Association of British Pharmaceutical Industries publishes a code of practice (the “ABPI Code”) that applies to the promotion of prescription medicines to members of the health professions and to other relevant decision-makers, and to information made available to the public about prescription-only medicines. Compliance with the ABPI Code is monitored and enforced by the Prescription Medicines Code of Practice Authority (“PMCPA”).
The Association of British Healthcare Industries also has its own code of practice, the ABHI Code, which governs the advertising and promotion of medical devices to healthcare professionals, which is not covered by the CAP Codes. The ABHI enforces the ABHI Code itself.
The Proprietary Association of Great Britain (“PAGB”) publishes a consumer code for medicines that covers the advertising of over-the-counter medicines to the public. The Medicines and Healthcare products Regulatory Agency publishes The Blue Guide on the Advertising and Promotion of Medicines in the UK.
Summaries of these codes and guides is beyond the scope of this note, but the relevant ones should be consulted before advertising or promoting medical products or services in the UK.
High fat, salt and sugar (“HFSS”) foods
Part 15 of the CAP Code has rules on the advertising of HFSS foods. Among other rules, HFSS advertisements containing content targeting pre-school or primary school children must not include a promotional offer, and must not include licensed characters or celebrities popular with children, though advertiser-created equity brand characters are acceptable.
HFSS product advertisements must not be directed at people under 16 through the selection of media or the context in which they appear. No medium should be used to advertise HFSS products, if more than 25% of its audience is under 16 years of age.
Gaming and gambling services
Part 16 of the CAP Code contains extensive rules on gambling advertising.
Gambling ads must not, among other things:
- portray, condone or encourage gambling behaviour that is socially irresponsible or could lead to financial, social or emotional harm;
- exploit the susceptibilities, aspirations, credulity, inexperience or lack of knowledge of young or vulnerable people;
- suggest that gambling can provide an escape from personal, professional or financial problems, an alternative to employment, or a way to achieve financial security;
- portray gambling as indispensable or a priority in life;
- suggest that gambling can enhance personal qualities, such as self-esteem, or is a way to gain control, superiority, recognition or admiration;
- suggest peer pressure to gamble or disparage abstention;
- link gambling to seduction, sexual success or enhanced attractiveness;
- portray gambling in a context of toughness or link it to resilience or recklessness;
- suggest gambling is a rite of passage;
- suggest that solitary gambling is preferable to social gambling;
- generally be directed at people under 18 (with some limited exceptions for 16 and 17 year olds) through the selection of media or context in which they appear;
- be likely to be of strong appeal to children or young persons, especially by reflecting or being associated with youth culture;
- include a person or character who has a strong appeal to those aged under 18;
- include or feature a child or a young person, anyone who is or seems to be under 25 years old, or is behaving in an adolescent, juvenile or loutish way, gambling or playing a significant role;
- exploit cultural beliefs or traditions about gambling or luck; or
- condone or encourage criminal or anti-social behaviour.
Adult and sex-related goods and services
There are no specific rules governing the advertising of sex-related goods and services. However, the ASA regularly upholds complaints against ads for such products on the basis that they breach the rules on social responsibility and on harm and offence, and that they feature models who appear to be under 18. Advertising of this nature should be carefully targeted to an adult audience and not feature in general media where children are likely to see it.
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Do any specific rules apply to advertising featuring prices?
Under the CPRs, it is unlawful to make an invitation to purchase products at a specified price:
– without disclosing the existence of any reasonable grounds the trader may have for believing that they will not be able to supply the products at that price (“bait advertising”); or
– then refuse to show the advertised item to consumers, refuse to take orders for it or deliver it within a reasonable time, or demonstrate a defective sample of it, with the intention of promoting a different product (“bait and switch”).
Under the CAP Codes:
– ads that quote prices for products must include the following information:
- main characteristics of the product
- identity and geographical address of the marketer and any other trader on whose behalf the marketer is acting;
- 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;
- arrangements for payment, delivery, performance or complaint handling, if those differ from the arrangements that consumers are likely to reasonably expect; and
- that consumers have the right to withdraw or cancel, if they have that right (which is usually the case in online or other distance sales).
– price statements must not mislead by omission, undue emphasis or distortion, and must relate to the product featured in the marketing communication;
– quoted prices must include non-optional taxes, duties, fees and charges that apply to all or most buyers (in practice, this applies to all consumer advertising, among other ads);
– marketing communications 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 are payable;
– if the price of one product depends on another, marketing communications must make clear the extent of the commitment the consumer must make to obtain the advertised price; and
– price claims such as “up to” and “from” must not exaggerate the availability or amount of benefits likely to be obtained by the consumer. ASA guidance is that the full benefit should be available in a “significant proportion” of cases: for example, if a range of products is advertised at “up to 50% off”, a reasonable proportion of the range should have the full 50% discount. Historically, the ASA expected at least 10% of the products in the range to attract the sull discount; the new wording, “a significant proportion”, is less specific, and 10% of the range should be regarded as a minimum.
“Free” claims
Under the CPRs, it is unlawful to describe a product as “free” if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.
Under the CAP Codes:
– Marketing communications must make clear the extent of the commitment for the consumer to take advantage of a “free” offer;
– Marketing communications must not describe items as “free” if:
- the consumer has to pay packing, packaging, handling or administration charges for the “free” product;
- the cost of response, including the price of a product that the consumer must buy 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 that the consumer must buy has been reduced;
– Marketers must not describe an element of a package as “free” if that element is included in the package price unless consumers are likely to regard it as an additional benefit because it has recently been added to the package without increasing its price; and
– Marketers must not use the term “free trial” to describe “satisfaction or your money back” offers, or offers for which a non-refundable purchase is required.
The Chartered Trading Standards Institute publishes Guidance for Traders on Pricing Practices (see https://www.businesscompanion.info/sites/default/files/Guidance-for-Traders-on-Pricing-Practices-Apr-2018.pdf). The guide covers practices such as the use of promotional prices, including comparisons with a trader’s own previous price, with competitor prices and with recommended retail prices. Although not enforceable, non-compliance with the guidance may indicate non-compliance with the CAP Codes and the CPRs.
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Do any specific rules apply to the use of testimonials and endorsements in advertising?
Under the CAP Codes:
- 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 or organisation that gives it;
- testimonials must relate to the advertised product
- claims that are likely to be interpreted as factual and appear in a testimonial must not mislead or be likely to mislead the consumer;
- marketing communications must not feature a testimonial without permission, with limited exceptions for accurate statements taken from published sources;
- marketers must not refer in a marketing communication to advice received from CAP or imply endorsement by the ASA or CAP;
- marketing communications must not display a trust mark, quality mark or equivalent without the necessary authorisation, or claim endorsement by any organisation if it does not have the endorsement, or is not complying with the terms of it;
- marketing communications must not falsely claim that the marketer or anyone else is a signatory to a code of conduct, or that a code of conduct has an endorsement from any organisation; and
- 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.
Neither the CPRs nor the CAP Codes prohibit payments being made in exchange for a testimonial. However, failing to disclose such payments is likely to be a misleading omission under the CPRs.
Sector-specific rules on testimonials should also be checked. For example, in the healthcare sector, it is prohibited under the CAP Codes to use healthcare professionals or celebrities to endorse medicines, and, under the ABHI Code, it is prohibited to pay healthcare professionals to endorse medical devices in ads directed to healthcare professionals.
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Do any specific rules apply to environmental or “green” advertising claims?
In addition to the general rules on misleading advertising, Part 11 of the CAP Code and Part 9 of the BCAP Code contain specific rules on “green” claims. Recognising that environmental claims can be technical, the rules emphasise the need for clarity. The meaning of all terms used, and the basis for environmental claims, must be clear, and unqualified claims could mislead if they omit significant information. Absolute claims must be supported by a high-level of substantiation, though comparative claims such as “greener” or “friendlier” may be easier to justify.
Environmental claims must be based on the full lifecycle of the product, unless the marketing communication states otherwise, though 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 product’s lifecycle do not mislead consumers about the product’s total environmental impact.
The Competition and Markets Authority (“CMA”), which is a UK government agency with responsibility for consumer matters, has published a Green Claims Code (see https://www.gov.uk/government/publications/green-claims-code-making-environmental-claims/environmental-claims-on-goods-and-services). The code sets out six key principles for environmental claims – claims must:
- be truthful and accurate
- be clear and unambiguous
- not omit or hide important relevant information
- be fair and meaningful comparisons
- consider the full life cycle of the product or service
- be substantiated
The code is not legally binding, but non-compliance is likely to indicate a breach of the CAP Codes and/or the CPRs.
Misleading “green” claims are currently an area of significant concern for both the ASA and the CMA. The ASA has published a series of increasingly restrictive rulings which, among other things, mean that significantly polluting businesses (e.g. airlines, oil companies, or financial institutions investing in such businesses) must disclose the business’s environmental harm in any advertising that promotes green initiatives, or risk misleading by omission.
Meanwhile, the CMA has launched investigations into environmental claims in the fashion and FMCG sectors, with travel and transport expected to follow. The CMA’s involvement represents a significant escalation of the risks of non-compliance, because, unlike the ASA, the CMA has the power to seek legal remedies, up to and including criminal liability, for breaches of consumer law.
See further at Q21 (Enforcement), below.
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What rules apply to the identification of advertising content – for example, distinguishing advertorial from editorial?
Under the CPRs, the following practices are prohibited:
- 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).
- Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer.
Under the CAP Code:
- Marketing communications must be obviously identifiable as such. In particular, unsolicited marketing e-mails must be obviously identifiable as marketing without the need to open them.
- Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession. Marketing communications must make clear their commercial intent, if that is not obvious from the context.
- Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them “advertisement feature”.
The BCAP Code contains similar rules for broadcast ads.
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How is influencer/brand ambassador advertising regulated?
Influencer marketing is now a significant part of the advertising ecosystem, as brands increasingly recognise the power of an apparently unprompted endorsement from an influential person. However, because much of the power of such endorsements flows from the appearance of genuine enthusiasm, brands tend to seek to play down or hide the fact that these endorsements are paid for.
The conflict between brand-owners’ preference to obscure the commercial relationship with influencers, and law and regulation requiring that advertising must be clearly identifiable as such, has resulted in complaints over influencer advertising being among the most common grounds for upheld ASA complaint in recent years. In a relatively rare intervention, the CMA, too, has investigated influencer marketing, and in 2019 obtained undertakings from a number of prominent influencers in relation to their future conduct. However, the stream of upheld complaints about influencer content that is not clearly identifiable as advertising has continued unabated.
The ASA and the CMA regard paid-for endorsements as advertising by the endorsed brand, for which the brand-owner is responsible. In recent years the ASA has often upheld complaints directly against influencers, recognising that influencer marketing is no longer a question of a celebrity happening to endorse products they use, and has become a business in its own right.
The ASA considers that any communication (i) for which payment has been made, and (ii) over which the brand has “control”, is advertising which must be clearly identifiable as such. The CMA applies an even lower threshold, requiring only that payment is present.
Both “payment” and “control” are widely drawn.
“Payment” includes not only the transfer of money, but also any other kind of commercial relationship, including being a brand ambassador, being a shareholder, director or holder of any other position in a business, a collaboration on a product, an exclusive discount or a commission (including affiliate marketing), or being given products, services, trips, hotel stays, event invitations, loans, leases, rentals, or shares, whether requested or unsolicited.
“Control” includes not only telling an influencer specifically what to say or when to say it, but also a brand having the right to check or approve content before it is posted, or even an expectation (as opposed to a hope) that content will be created.
If influencer content does constitute advertising, it must be clearly identifiable as such to consumers. The ASA’s strong recommendation is to use the word “Advertisement”, or abbreviations (e.g. “Ad”, “Advert”, “Advertising”). This can be with or without a hashtag. Other statements, such as “supported by”, “sponsored by”, “in association with”, “gifted” and “affiliate”, will almost always be inadequate.
The disclosure should be clear and obvious up-front, before consumers engage with the content. Consumers should not have to scroll down or click through to find it, and it should not appear in a string of other hashtags.
Advertisers using influencers should have a contract in place with the influencer and any agent acting on their behalf, obliging the influencer to comply with these obligations. Advertisers should also carefully monitor influencers’ activities and step in if they break the rules.
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Are any advertising methods prohibited or restricted? [For example, product placement and subliminal advertising]
Product placement
The broadcast regulator, Ofcom, publishes a Broadcasting Code. This provides that no undue prominence may be given in programming to a product, service or trade mark. Undue prominence may result from the presence of, or reference to, a product, service or trade mark in programming where there is no editorial justification, or the manner in which a product, service or trade mark appears or is referred to in programming.
Product placement is prohibited in news programmes and children’s programmes. It is also prohibited in religious programmes, consumer affairs programmes and current affairs programmes the production of which began after 31 October 2020, and also in any such programmes the production of which began on or before 31 October 2020, if made under UK jurisdiction.
Product placement is also prohibited for a range of product and service categories, including tobacco products and related products such as cigarette lighters, cigarette papers, pipes and e-cigarettes, alcohol, HFSS foods or drinks, gambling, infant and follow-on formula, medicinal products, and any other product, service or trade mark that is not allowed to be advertised on television.
There are special provisions relating to the BBC, since the BBC is prohibited from accepting most types of commercial revenue in relation to services funded by the licence fee.
Any programme which features product placement must signal to the viewer that product placement appears in the programme, by way of a universal “P” logo.
Subliminal advertising
Subliminal advertising is prohibited.
Outdoor advertising
Outdoor advertising is subject to local authority consent for the display of billboards and posters in public spaces. The law of trespass also prevents the display of advertising on the walls of buildings or on fences without the consent of the owner.
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Are there different rules for different advertising media, such as online, broadcast, non-broadcast etc?
The CAP Code covers non-broadcast advertising, including ads appearing around video on-demand services and in cinemas. The CAP Code also covers online advertising, both paid-for content and non-paid-for content appearing on businesses’ own websites or other online space under their control, such as their social media channels. The CAP Code also covers marketing promotions wherever they appear. The rules for online advertising are no different from those for other non-broadcast advertising, though the practical application differs in part due to the different medium. The CAP Code does not cover point of sale material such as in-store posters and shop windows.
The BCAP Code covers broadcast advertising only, including radio advertising.
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Are there specific rules for direct marketing such as email, SMS and direct mail?
The general rules on advertising content under the CPRs and the CAP Code apply to direct marketing.
Direct marketing that makes use of personal data is subject to data protection law. Additionally, electronic direct marketing, such as email and SMS, is subject to the Privacy and Electronic Communications Regulations 2003, which require that the consumer opts-in to receive the direct marketing, though in some cases a so-called “soft opt-in” can be inferred.
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Is advertising to children and young people restricted beyond general law and regulation? If so, how?
The CPRs frequently refer to the effect of a commercial practice on the “average consumer”, and provide that, where a practice is directed to a particular group of consumers, such as children, the “average consumer” is the average member of that group. Also, in determining the effect of a commercial practice on the average consumer, the specific vulnerabilities of any identifiable group of consumers, including due to age or credulity, must be considered.
Parts 5 of both CAP Codes set out rules in relation to advertising to children. These contain rules in relation to child safety, prohibitions on taking advantage of children’s credulity, exerting unfair pressure on them through advertising, and directly exhorting children to buy, or ask an adult to buy, a product for them.
Other law and regulation, including parts of the CAP Codes, also restrict or prohibit certain advertising to children. For example, marketing communications for a medicine must not be addressed to children, the advertising of HFSS foods to children is significantly restricted, advertisements for gambling services must not be likely to be of strong appeal to children or young persons, and must not include a person or character of strong appeal to those aged under 18, and marketing communications for alcoholic drinks should not be targeted at people under 18.
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How is comparative advertising regulated?
Under the BPRs, comparative advertising is only permitted when certain conditions are met:
- it is not misleading under the BPRs, or a misleading action or omission under the CPRs;
- it compares products meeting the same needs or intended for the same purpose;
- it objectively compares one or more material, relevant, verifiable and representative features of those products, which may include price;
- it does not create confusion among traders
- between the advertiser and a competitor, or
- between the trade marks, trade names, other distinguishing marks or products of the advertiser and those of a competitor;
- it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, products, activities, or circumstances of a competitor;
- for products with designation of origin, it relates in each case to products with the same designation;
- it does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products; and
- it does not present products as imitations or replicas of products bearing a protected trade mark or trade name.
These rules are replicated in the CAP Codes.
“Verifiability”
The obligation that comparisons must be verifiable has a specific meaning in comparative advertising: the advertiser should provide sufficient information about the comparison for the target audience to check it. The advertiser should either set out the relevant information in the ad or “signpost” how the information can be accessed, such as by a web link or contacting an email address.
“Enforcement”
In the UK, competitors cannot enforce the law on unfair and misleading advertising against each other. This significantly reduces risk, because the risk of enforcement by the appointed regulators, or by consumers, is relatively low in most cases, and competitors must usually seek enforcement by way of the ASA, which has very limited powers to issue remedies. However, if an advertisement uses a competitor trade mark in a comparison that breaches the rules for comparative advertising set out in the BPRs, the advertiser can lose the benefit of the defence to trade mark that normally applies to comparative advertising. This opens the way for the subject of the comparison to bring proceedings for trade mark infringement, which can result in remedies including injunctions (which may be an interim injunction that can result in a campaign being cancelled early), damages, and legal costs that can easily be in six figures. Comparative advertising that names a competitor therefore has a significantly increased risk profile and should be considered carefully in advance.
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Are consumer promotions specifically regulated as advertising (as distinct from contract law)? If so, how?
Promotional marketing can be contentious and is the source of a significant number of high-profile complaints. Promoters should therefore comply with Part 8 of the CAP Code, which regulates promotional marketing wherever it appears, including at point of sale and in broadcast ads.
Generally, the onus is on advertisers (as promoters) to take responsibility for their promotions.
Promoters must:
- conduct promotions equitably, promptly and efficiently, and be seen to deal fairly and honourably with participants and potential participants, and must avoid causing unnecessary disappointment;
- be able to demonstrate that they have made a reasonable estimate of the likely response and either that they were capable of meeting that response or that consumers had sufficient information, presented clearly and in a timely fashion, to make an informed decision on whether to participate – for example, regarding any limitation on availability and the likely demand; and
- ensure that promotions are conducted under proper supervision and make adequate resources available to administer them.
Promoters, agencies and intermediaries should not give consumers justifiable grounds for complaint. All marketing communications or other material referring to promotions must communicate all applicable significant conditions or information where the omission of such conditions or information is likely to mislead. This is likely to include how to participate, the start and end date, any proof of purchase requirements, the number and nature of prizes or gifts, any geographical, personal or technological restrictions such as location and age, and the promoter’s name and address.
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Are there specific rules on promotional prize draws and skill competitions? If incorrectly executed, can these be classed as illegal lotteries? If so, what are the possible consequences?
Under the CPRs, it is unlawful to claim to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent, or to create the false impression that the consumer has already won, or will win, a prize, when in fact either there is no prize, or claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost.
Under Part 8 of the CAP Code:
- Promoters must award the prizes as described in their marketing communications or reasonable equivalents, normally within 30 days.
- Promoters must not claim that consumers have won a prize if they have not. The distinction between prizes and gifts, or equivalent benefits, must always be clear. Promoters must not exaggerate consumers’ chances of winning prizes. They must not include a consumer who has been awarded a gift in a list of prize winners.
- Promoters must not claim or imply that consumers are luckier than they are. They must not use terms such as “finalist” in a way that implies that consumers have progressed, by chance or skill, to an advanced stage of a promotion if they have not.
- Promoters must not falsely claim or imply that the consumer has already won, will win or will on doing a particular act win a prize (or other equivalent benefit) if the consumer must incur a cost to claim the prize (or other equivalent benefit) or if the prize (or other equivalent benefit) does not exist.
- Promoters must avoid rules that are too complex to be understood and they must, only exceptionally, supplement or amend conditions of entry with extra rules. In such circumstances, promoters must tell participants how to obtain the supplemental or amended rules and they must contain nothing that could reasonably have influenced consumers against buying or participating.
- In prize draws, prizes must be awarded in accordance with the laws of chance and by an independent person, or under the supervision of an independent person, unless winners are selected by a computer process that produces verifiably random results.
- Participants in instant-win promotions must get their winnings at once or must know immediately what they have won and how to claim without delay, cost or administrative barriers.
- In competitions, if the selection of a winning entry is open to subjective interpretation, a demonstrably independent judge, or a panel that includes one demonstrably independent member, must be appointed. Those appointed to act as judges should be competent to judge the competition and their full names must be made available on request.
- Withholding prizes is justified only if participants have not met the qualifying criteria set out clearly in the rules of the promotion.
All marketing communications referring to prize promotions must state the following information:
- any restriction on the number of entries;
- whether the promoter may substitute a cash alternative for any prize;
- if more than 30 days after the closing date, the date by which prize winners will receive their prizes;
- how and when winners will be notified of results;
- in a competition, the criteria and mechanism for judging entries (for example, the most apt and original tiebreaker);
- if relevant, who owns the copyright of the entries;
- if applicable, how the promoter will return entries; and
- any intention to use winners in post-event publicity.
Promoters must either publish or make available information that indicates that a valid award took place – ordinarily the surname and county of major prize winners and, if applicable, their winning entries. Promoters should consider this obligation in conjunction with their obligations under data protection law.
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Must promotional prize competitions be registered with a state agency or authority? [If so, briefly explain the process, typical time from application to approval, and any costs]
No.
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What is the relationship between IP law and advertising law? [For example, can IP law provide an alternative enforcement mechanism in addition or alternatively to advertising-specific law and regulation?]
Trade mark law can in some circumstances be enforced to restrict comparative advertising, as discussed at Q14, above.
Other than this, the use in advertising of a mark that is identical or similar to a registered trade mark, in relation to goods or services that are identical or similar to the goods or services for which the registered trade mark is registered, can be actionable as trade mark infringement, as can the use of a mark with a reputation, without due cause, if that use takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the registered trade mark.
Use in advertising of a trade mark or other distinguishing mark or get-up can also be actionable in passing off, if a third party owns goodwill by reference to the mark or get-up, and the use made of it by the advertiser constitutes a misrepresentation to the public that causes damage to the owner of the goodwill.
Advertising content will also infringe third party copyright if (among other things) the advertising content is the product of copying a substantial part of a work in which copyright exists. A particular issue arises in relation to parodies of existing works, which are a common advertising format. Although there is a defence under UK law to copyright infringement that applies to parodies, it is not clear that this defence would apply to use in advertising. Advertising parodies should therefore be treated with caution.
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What is the relationship between contract law and advertising law? [For example, if an “offer” made in advertising content is accepted by a third party, can this form a binding contract?]
Under 19th century case law, a legally binding “unilateral” contract may result from an offer made in advertising, if an individual performs the conditions attached to the offer. This includes the terms of a sales promotion, which are actionable as a contract between the promoter and participants.
Further, under the Consumer Rights Act 2015, every contract to supply goods by description is to be treated as including a term that the goods will match the description, which may include a description given in advertising; additionally, certain pre-contract information that must be supplied to consumers also becomes a term of the contract.
A statement in an advertisement may also constitute an actionable misrepresentation.
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What is the relationship between human rights law and advertising law? [For example, can advertisers rely on a right to freedom of speech to justify otherwise prohibited advertising?]
The proposition that restrictions on advertising content, including those outlined above, amount to an impermissible restriction on freedom of expression has not been widely litigated. In the absence of judicial consideration, it is assumed that such restrictions would likely constitute a proportionate restriction on the right to freedom of expression, a qualified right that is, expressly, subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society.
However, the right to freedom of expression has been successfully pleaded in cases on comparative advertising. In such cases, the court has refused to grant an interim injunction because the right to freedom of expression meant that the applicant had a higher threshold to overcome than the normal test for an interim injunction.
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How are breaches of advertising law and regulation enforced? [Briefly outline the process, including significant stages of the dispute, time to resolution and likely penalties]
Where there is a breach of the CPRs or the BPRs that also amounts to a breach of the CAP Code, complainants are expected to seek to resolve their concern by complaint to the ASA. Anyone can lodge a complaint with the ASA, though where an advertiser’s competitors have a complaint, they must first correspond with the advertiser to try to resolve their complaint before approaching the ASA.
If an advertisement is found to breach either of the CAP Codes, the ASA will ask the advertiser to withdraw or change it, and will publish its ruling online. Adverse rulings regularly attract significant media coverage.
The ASA cannot award damages or costs, or issue fines. However, if advertisers do not comply, the ASA can escalate the matter to Trading Standards, who have extensive enforcement powers and can seek court orders to restrain future non-compliance. Broadcast advertising can also be referred to Ofcom for enforcement.
United Kingdom: Advertising & Marketing
This country-specific Q&A provides an overview of Advertising & Marketing laws and regulations applicable in United Kingdom.
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How is harmful and offensive advertising regulated? [For example, advertising content that may be obscene, blasphemous, offensive to public morals or decency, or offensive to protected minorities or characteristics?]
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How is unfair and misleading advertising regulated? [Briefly describe the law and regulation applying to unfair and misleading advertising in your jurisdiction. Cover any specific unfair or misleading practices that are prohibited, as well as the general category of misleading advertising]
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Do any specific rules restrict advertising for the following product sectors? If so, how? a. Alcohol b. Tobacco and related products, such as vapes and nicotine pouches c. Medicines, medical devices and surgical or medical procedures d. High fat, salt and sugar foods e. Gaming and gambling services f. Adult and sex-related services
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Do any specific rules apply to advertising featuring prices?
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Do any specific rules apply to the use of testimonials and endorsements in advertising?
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Do any specific rules apply to environmental or “green” advertising claims?
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What rules apply to the identification of advertising content – for example, distinguishing advertorial from editorial?
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How is influencer/brand ambassador advertising regulated?
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Are any advertising methods prohibited or restricted? [For example, product placement and subliminal advertising]
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Are there different rules for different advertising media, such as online, broadcast, non-broadcast etc?
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Are there specific rules for direct marketing such as email, SMS and direct mail?
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Is advertising to children and young people restricted beyond general law and regulation? If so, how?
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How is comparative advertising regulated?
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Are consumer promotions specifically regulated as advertising (as distinct from contract law)? If so, how?
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Are there specific rules on promotional prize draws and skill competitions? If incorrectly executed, can these be classed as illegal lotteries? If so, what are the possible consequences?
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Must promotional prize competitions be registered with a state agency or authority? [If so, briefly explain the process, typical time from application to approval, and any costs]
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What is the relationship between IP law and advertising law? [For example, can IP law provide an alternative enforcement mechanism in addition or alternatively to advertising-specific law and regulation?]
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What is the relationship between contract law and advertising law? [For example, if an “offer” made in advertising content is accepted by a third party, can this form a binding contract?]
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What is the relationship between human rights law and advertising law? [For example, can advertisers rely on a right to freedom of speech to justify otherwise prohibited advertising?]
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How are breaches of advertising law and regulation enforced? [Briefly outline the process, including significant stages of the dispute, time to resolution and likely penalties]