Updates from June 2022 (slimmed):
Regulation of child safety online - an update
Above from Taylor Wessing June 2022
Children's Recognition of Online Ads
Above is from CAP News June 2022
Key headlines from our 100 Children Report
ASA News 29 November, 2022
Age-restricted ads online November 2022
ICO guidance for game developers Feb 2023
YT accused of collecting children's data
Above BBC March 1, 2023 re UK data
Tik Tok fined £12.7m. BBC April 4, 2023
100 children follow-up July 19, 2023
EdTech and the ICO Children's Code
Bates Wells July 31, 2023
Top tips on targeting and placement
CAP News February 22, 2024
Children: Safety. Advice online Feb 27, 2024
ICO priorities 2024/25. Wiggin Apr 8, 2024
Content, Overview reviewed June 14, 2024
Regulatory spotlight on children’s data
CMS October 22, 2024
(Making Sure) The Kids are Alright
CAP News November 7, 2024
ICO calls on Social Media and VSPs to improve children’s privacy practices
Hunton Andrews Kurth LLP August 7, 2024
TikTok fined £1.875m for providing inaccurate data on safety controls
Ofcom July 24, 2024
Kids' exposure to age-restricted TV ads ASA news May 23, 2024
Ofcom Draft Children's Safety Codes of Practice
Above released May 8, 2024
INTRODUCTION AND SCOPE
These pages deal with the regulations that affect the increasingly sensitive issue of marketing communications to children Definition ASA/CAP define as a person under 16 for the purposes of the Code; Ofcom define as U15; see also GDPR and children. Clearly, children are protected from sectors that they are not permitted to use, such as alcohol or gambling; these pages are for all advertisers, as children’s rules apply across the board, and especially for those products that a) can be used by children and b) where there are no particular category rules that prohibit or notably restrict (e.g. Food and Soft Drinks, for which sector there is a separate tab on the home page of this website) marketing communications to children. In other words, if you can sell your product to children, or children use it, can you communicate to them and, if so, what are the rules?
CONTENT RULES
Both the CAP and BCAP Codes include a specific section on Children (linked). While there’s considerable overlap between the two codes, they’re not identical. We show the rules from both codes amalgamated, so that you can ‘read’ them across media, in our content section B. Applicable legislation comprises the CPRs Consumer Protection from Unfair Trading Regulations 2008 (CPRs), transposing the Unfair Commercial Practices Directive 2005/29/EC which forbids ‘direct exhortation’ The full rule Prohibited practice 28: Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them to children. In July 2016 the relevant BCAP rule 5.9 was amended to align it with the CPRs.
BROADCAST AND ON-DEMAND
This ‘exhortation’ rule above is also reflected in the Ofcom Broadcasting Code Appendix 2 'Extracts from the EU Audiovisual Media Services Directive 2010/13/EU', which Code requires under article 9 (g) that ‘audiovisual commercial communications shall not cause physical or moral detriment to minors. Therefore they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations.’
CHANNEL RULES: TV
The Ofcom Broadcasting Code Section 9 covers product placement (banned in children’s programmes, 9.7) and sponsorship (permitted in principle, but not for e.g. HFSS Foods, Gambling). The Ofcom Code on the Scheduling of Television Advertising (COSTA) prohibits advertising in children’s programmes with a scheduled duration of 30 minutes or less. BCAP scheduling restrictions provide, under Section 32, comprehensive provisions on scheduling around children’s programmes, banning sensitive products “in or adjacent to programmes commissioned for, principally directed at or likely to appeal particularly to audiences below the age of 16.” A further list specifies restrictions for under18s, thus allowing some sectors with different age qualifications to appear in and around the defined '18' programming (for example, lotteries, and some computer/ console games). There’s a third list for under-10s programming that prohibits sanitary protection products (32.6.1) and condoms (32.6.2). Provisions also include that “Relevant timing restrictions must be applied to advertisements that, through their content, might harm or distress children of particular ages or that are otherwise unsuitable for them (32.3)”. Full information in our channel section C.
GDPR AND CHILDREN
Privacy issues should be reviewed with specialist advisors
The General Data Protection Regulation 2016/679 (GDPR) applied directly in member states from 25 May 2018, replacing the Data Protection Directive 95/46/EC. GDPR has become retained legislation in the U.K. Rules from the GDPR on Children’s data are set out under Online Commercial Communications in our channel section C. An assembly of the relevant GDPR articles and recitals is here. Article 8 of the GDPR states: in relation to the offer of information society services directly to a child, the processing of the personal data of a child shall be lawful where the child is at least 16 years old. Other significant conditions pertain.
NATIONAL APPLICATION, THE ICO AND DCMS
The Children's Code - an internet safety and privacy code of practice
Clyde & Co/ Lex April 5, 2024
The ICO's Children's Code and the Online Safety Act
Taylor Wessing/ Lex February 8, 2024
Top Tips for 2024: Kid’s Privacy and Online Safety. Reed Smith Jan 3, 2024
The Data Protection Act 2018 (DPA) ‘supplements’ the GDPR and applies some special categories and exemptions. Chapter 2, article 9 of the DPA re child’s consent in relation to information society services states: In Article 8 (1) of the GDPR (conditions applicable to child’s consent in relation to information society services) references to “16 years” are to be read as references to “13 years”. The ICO publish a children’s section under key data protection themes. In January 2020 they introduced Age appropriate design: a code of practice for online services and in July 2021 a blog Spotlight on the Children’s Code standards, addressing the United Nations Convention on the Rights of the Child as it applies to the use of data and its minimisation. The code entered into force September 2nd; helpful piece on the issue from DLA Piper via Lexology here. The ICO's November 2023 Five data protection top tips for early years settings is aimed at nurseries, pre-schools, childminders and other early years settings. In June 2021, DCMS published A business guide for protecting children on your online platform, which includes sections on data and age-apppropriate content. On 14 October 2021 the ICO published an opinion on Age assurance for the Children's code. In December 2022, Protecting children and their data in the online environment from Browne Jacobson LLP./Lex December 2022 sets out some of the issues arising - age verification among them - as a result of the coroner's report into the suicide of Molly Russell.
ONLINE AND OFFLINE
The most important principle is that the offline rules expressed in the CAP Code essentially apply online (see Scope of the Code), and that owned space is in remit. In other words, if it’s a marketing communication Definition Advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that are directly connected with the supply or transfer of goods, services, opportunities and gifts, or which consist of direct solicitations of donations as part of their own fund-raising activities on your own website or social network space, it’s subject to the rules. So in-app ads, or in-game ads, or marketers’ own marketing communications on brand websites, need to observe the same rules as those for a print ad, for example.
ADVICE/ GUIDANCE FROM CAP
(non-exhaustive)
Database search link here
(Making Sure) The Kids are Alright
CAP News November 7, 2024
Children: Safety. Advice online 27 Feb, 2024
Children's Recognition of Online Ads. CAP News 23 Jun, 2022
Children: Money Advice online 24 May, 2022
Do you copy? Some tips on avoiding harmful emulation in ads. CAP News 07 Apr, 2022
The "Particular Appeal" of Animals. CAP News 29 Apr, 2021
Making advertising to children 'child's play'. CAP News 25 Nov, 2021
Children: General Advice online. 17 July, 2018
Children: Targeting. CAP Advice online March 2023. Covers specifically:
The last of these more recently covered by Age-restricted ads online Nov 2022
April 2017 (old, but still applicable):
Recognition of advertising: online marketing to children under 12
SOME KEY SECTORS AND ISSUES
Vlogging and blogging and native: Identification of advertising
In the online environment, recognition/ identification of advertising can be an issue: CAP’s 2015 Vlogging guidance is here, their vid on Vloggers, bloggers and brands here, 2023 advice on ‘Native’ advertising here, and the rules on Recognition of Marketing communications are here. In March 2023, CAP published the Influencers’ Guide to making clear that ads are ads.
Videogames and Toys and Food and Soft Drinks
Here is CAP’s Video Games and Films Advice Online November 2013. CAP more recently (Feb 2021) issued ‘Punch-out any issues with your video game advertising’. There is no ‘Toy Code’ per se in the UK. The trade association BTHA’s guidance points to the CAP and BCAP Codes and the BTHA association with TIE (Toy Industries of Europe) whose November 2016 Self-regulation of children’s advertising is here. For Food and Beverages, CAP’s Help Note on Food and Soft Drink advertising to Children and Three lessons from 2019 (CAP News Dec 2019) provides guidance in a tricky category, for which full rules are set out in our Food and Soft Drinks pages, available separately from the home page of this website. On 16th February, 2023 the ICO released New guidance to industry issued for game developers on protecting children. Commentary here from Arthur Cox LLP/ Lex March 27th.
RULINGS
A good number of the rulings against advertisers in this children’s context (the link is to rulings listed when searching ‘Children’) don’t necessarily fall foul of the children rules per se, but the rules on Harm and Offence (4.1 from CAP Section 4 here) and Section 1 Compliance and specifically rule 1.3 on Social Responsibility The article Marketing communications must be prepared with a sense of responsibility to consumers and to society (same sections in BCAP). This June 2022 ruling from the ASA upheld their own complaint against VIP Pets Toys on the Nickjr website on the grounds of insufficient disclosure, obviously a significant issue with younger children in particular.
GENERAL CONTENT AND CHANNEL RULES
Applicable to all audiences
All sectors should also observe the general rules on taste and decency, harm and offence etc.; these are found in the CAP and BCAP Codes. Direct marketing activities are covered by the CAP Code (link is to Section 10, Use of data for marketing), with some help from the DMA, (link is to their code), but are also subject to statutory provisions for data protection, cookies and OBA, unsolicited direct communications and e-Commerce. GDPR with the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) and The Electronic Commerce (EC Directive) Regulations 2002, apply. The ICO is a good source of help and guidance on these aspects, which are covered in full under our channel section C.
Updates since March 2023 (slimmed)
Lufthansa ruling March 1, 2023. Ad here The ASA on AI. ASA News 23 Feb 2023 Shell ruling ASA June 7, 2023. BBC here Environmental claims guidance ASA June 23, 2023 Dove self-esteem ruling (NU) Nov 6, 2023 Vid on above here. Good decision IPA & ISBA principles for use of gen AI in advertising Lufthansa, Etihad and Air France rulings Dec 6, 2023 (U) FKA Twigs and her Calvins (PU) Mar 6, 2024 re this ad News on the above BBC Mar 6, 2024 & from FKA Twigs And Browne Jacobson comment here March 8* CAP Insight May 23, 2024 Topics Crypto, Royal references, mental health depiction Brandowner Influencer ruling May 28, 2024 Lewis Silkin* Hurtigruten ruling (U) July 17, 2024. Ad here |
Key Advice Resources Green Claims. CAP News Aug 7 CAP Insight August 22, 2024. Topics Social responsibility, misleading gameplay and promotions Ads & Brands Law Digest: July 2024 Lewis Silkin Aug 13 Topics include ASA Vinted, Joint publishing Instagram and AI, CMA trader guidance, Wowcher and Simba, HFSS Wales, EHRC, trade marks CMA Fashion business environmental claims guide 9/18 CAP Insight September 19, 2024 Topics Xmas, Anxiety, Eyes and Halloween Qualifying cryptoassets broadcast ads CAP Sep 27, 2024 ASA/ Online choice Architecture. Bird&Bird Sept 30, 2024 Regulatory Outlook Oct 2024 Osborme Clarke Regulatory outlook Nov 2024 Osborne Clarke Topics Vaping bill, ASA vaping, NCSC malvertising, CMA/Emma, ASA AI ASA Rulings Summary, 2 - 9 October 2024. DLA Piper CAP Insight October 10, 2024 Topics Race depiction, smoking cessation, chiropractors, affiliate marketing CAP Insight November 7, 2024. Topics Long Covid, International Men's day, Children, Regenerative farming CAP Insight November 21, 2024 Topics Alcohol health claims, harm and offence, mushrooms ffs |
* Recommended read
The new data bill from DSIT October 24, 2024
Freshfields on above here Oct 25 & ICO response here
BHM: Avoiding offensive depictions of race in ads
CAP News October 10, 2024
CMA objects to Google’s ad tech practices
CMA September 6, 2024
Comparative Guide and AdLaw Insights Lewis Silkin July 2, 2024. Topics Manifestos, dating apps, Ofcom, alcohol alternatives, in-game purchases, gambling sponsorship, calisthenics claims, KLM, Vinted, green claims directive
AI
ASA webinar November 14, 2024 (YT)
The UK's new AI Bill. RPC October 17, 2024
AI as a marketing term. CAP News July 11, 2024
The ICO’s strategic approach to regulating AI
RPC August 1, 2024
What's the latest on the UK govt's approach to AI?*
Osborne Clarke Feb 12, 2024 and Burges Salmon Apr 2 and Shoosmith 17th
THE AD CODES
The twin pillars of the self-regulatory system in the U.K. are the CAP Code for ‘non-broadcast advertisements, sales promotions and direct marketing communications (marketing communications)’, and its sister BCAP Code which applies to ‘all advertisements (including teleshopping, content on self-promotional television channels, television text and interactive TV ads) and programme sponsorship credits on radio and television services licensed by Ofcom’. There is significant overlap of rules between the two codes; we largely deal with them together in this database. See CAP Bitesize August 2022 for 'a series of videos to help businesses get their ads right, by setting out the principles behind the advertising rules in an easily digestible format' and Advice for Small Businesses does what it says on the tin.
INFLUENCERS/ RECOGNITION OF ADVERTISING
Influencers and their business interests RPC Oct 17, 2024
Top tips for responsible influencer marketing CAP News 31 Jul 2024
Influencer Marketing - Key Advice Resources CAP News 21 Feb 2024
Section 2 of the CAP Code covers recognition of marketing communications, and the BCAP Code Section 2 does the same in broadcast. There’s a lot of guidance from CAP in this territory; most of it can be found here; a key piece is Influencers' Guide to making clear that ads are ads from the CMA/ CAP March 2023 and a ‘Special Edition Influencer Marketing Insight' includes a flow chart, cheat sheet and affiliate marketing infographic etc. The CMA themselves provide guidance from a consumer law perspective with Hidden ads: Being clear with your audience, update of 3 November 2022; CMA guide for brands here, for content creators here. ISBA's Influencer Marketing Code of Conduct was updated June 2023. Influencers can be animals - Fur warning: the rules that apply to pet influencers CAP News, 08 Sep 2022. The ASA now include a page on their website which identifies influencers who have failed to comply with rulings/ warnings and in December 2023 announced a partnership with Instagram and five content creators to publish a series of new videos, aimed at sharing key aspects of the rules that all UK advertisers must follow. The vids can be found via the link. This review of digital ad regulation by Gowling 30 April 2024 provides some instructive cases and commentary (video) and this 2022 (we think) Influencer Marketing Guide from DLA Piper is a comprehensive review of the rules in all the major jurisdictions including the U.K.
Ad content legislation (Influencers and generally)
Consumer Law | UK Regulatory Outlook May 2024
Osborne Clarke May 31, 2024
DMCC bill becomes law Wiggin/ Lex June 3, 2024 and BCLP June 6
Retained EU law: 10 key questions. Travers Smith/ Lex March 18, 2024
The Digital Markets, Competition and Consumers (DMCC) Bill is significant, relevant legislation, providing the CMA with weighty new powers and essentially absorbing CPRs 2008, which provide the consumer protection measures key in areas such as environmental claims and influential in self-regulatory foundation. The bill carries other important provisions for the digital landscape but less directly relevant to advertising. How the bill might affect CAP and BCAP codes here from Taylor Wessing Dec 14, 2023 and here from Lewis Silkin January 2024. CMA consultation on guidance Wiggin/ Lex June 3, 2024. The new DMCC Act and its impact on the Advertising Codes CAP News June 25, 2024; helpful implementation timeline and tracker here from Wiggin/ Lex September 17, 2024 and Lewis Silkin's 9/12 guide to the law here.
Para 11, Schedule 1 of the CPRs provides that a commercial practice ‘in all circumstances considered unfair’ is ‘Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial)’. More broadly, Regulation 6 (1) d of Part 2 of the CPRs sets out a misleading omission when ‘a commercial practice fails to identify its commercial intent, unless this is already apparent from the context.’ More broadly still, it is this legislation, transposed from the UCPD 2005/29/EC, that is the core of misleadingness regulation around Europe and including the UK (the CPRs are retained legislation). The UK self-regulatory position reflects the statutory position and the ASA is the 'established means' of advertising regulation; we therefore don't dwell on legislation, albeit in channel rules in particular it's best to know the law as well as the ASA's requirements. As the act brings online financial scam ads into its scope, impact here from Burges Salmon Dec 7, the Online Safety Act may also influence marketers' and agencies' corporate lives: Online Safety Act - An Overview Burges Salmon again Nov 13, 2023. Update from Ofcom here October 17, 2024.
MISLEADINGNESS
Around 70% of the complaints the ASA receives relate to misleading advertising, covered in Section 3 of the CAP Code and the same Section of the BCAP Code. This is a significant slice of the codes, and includes, for example, issues of price, substantiation, qualification, and comparisons in advertising. Forms of misleadingness are set out under our content section B, though we have separated price issues as these are also subject to statutory provisions, and in of themselves can be somewhat complex. Key guidance from CAP News Jan 2020, re-issued Dec 2020, is here, and Advice online Dec 2020 here. On 28 January 2021, re-issued Jan 2022, CAP published Six top tips to avoid misleading advertising and on April 20, 2023 a Misleadingness checklist. Misleadingness in law is (largely) from Regulation 5 of the CPRs, which covers misleading actions and Regulation 6, which deals with misleading omissions. Comparative advertising in law is provided for under The Business Protection from Misleading Marketing Regulations 2008, Regulation 4, in part a transposition of the Misleading and Comparative Advertising Directive 2006 /114/EC. Also see Q&A: misleading advertising practices in United Kingdom from Herbert Smith Freehills LLP/ Lex June 2024, Substantiation 101 from CAP 23rd February, 2023 and Misleading ads CAP News March 7, 2024.
ENVIRONMENTAL CLAIMS
Rail-y useful advice on making environmental comparisons
CAP News July 31, 2024
This is obviously a hot topic; the CAP and BCAP codes anyway devote whole sections to the subject: 11 and 9 respectively, set out in our content section B below. The CMA Green Claims Code was published September 20th 2021, their checklist same date here; CAP guidance will 'complement' the CMA's work, which was developed in close consultation with ASA/CAP. Commentary on the CMA guidance from Macfarlanes/ Lex here. The Ofcom Broadcasting Code article 3e C (iv) of appendix 2, from the AVMSD, prohibits in broadcast commercial communications the encouragement of ‘behaviour grossly prejudicial to the protection of the environment’ Green claims update from Hogan Lovells/ Lex June 20, 2023 compares the EU and UK approaches to environmental claims regulation, as does Squeaky clean: updates on greenwashing from Osborne Clarke June 22, 2023, carrying news of the CMA’s report on the green heating and insulation sector, also covered by Lewis Silkin August 9 here. More specific sector activity is reported in Green claims in fashion retail from TLT LLP/ Lex Feb 29, 2024 and the CMA's September 18, 2024 'Green claims code for fashion businesses' represents the culmination of their extensive work in this territory - flesh on these bones from Lewis Silkin here. A helpful more general round-up is UK regulators and greenwashing March 4, 2024 from Morgan, Lewis & Bockius/ Lex.
The ASA, AI & Greenwashing Travers Smith Oct 22, 2024
Green claims update: September 2024 RPC
Virgin Atlantic ruling (U) August 7, 2024
Stepenson Harwood & Lewis Silkin on the above here & here
Wessex Water ruling (U) July 10, 2024. Ad here
Environmental Claims Special Edition of the Insight Newsletter is from CAP Insight June 5, 2023;
FCA (Financial Conduct Authority) and related
FCA Sustainability disclosure and labelling regime
Above includes implementation timeframe. Last updated Nov 1, 2024
The FCA has granted temporary flexibility until April 2, 2025
GENDER STEREOTYPES AND BODY IMAGE
Review of Body Image in advertising. CAP's Final statement October 10, 2024
International Women’s Day 2024 CAP News March 7 covers roles and characteristics, sexual objectification and body image, with multiple references to relevant cases and other associated guidance; International Men's Day 2023 November 9 was treated equally.
The rule states: [Advertisements] must not include gender stereotypes that are likely to cause harm, or serious or widespread offence. Full guidance from December 2018 is here; advice online from August 2020 is here. The rule came into force on 14 June 2019. From the guidance: ads may feature people undertaking gender-stereotypical roles e.g. a woman cleaning the house or a man doing DIY, or displaying gender-stereotypical characteristics e.g. a man being assertive or a woman being sensitive to others’ needs, but they should take care to avoid suggesting that stereotypical roles or characteristics are:
Always uniquely associated with one gender
The only options available to one gender
Never carried out or displayed by another gender
From CAP’s Insight piece 8/3/2019: ‘The ASA already takes a tough position on sexualisation, objectification and unhealthily-thin body image in ads (see also e.g. Celine ruling September 20, 2023.) Where these cases have previously been considered under rules about offence and social responsibility, they could also fall under the new rule.’ The first rulings happened 14/8/19; both VW E-Golf and Philadelphia Cheese were found to have breached the rules, but the Buxton water complaint on the same grounds was not upheld. There was some controversy around the VW decision in particular; trade press story here. Ruling April 2021: a paid-for Instagram post from Babyboo Fashion was banned for being likely to cause serious or widespread offence by objectifying women; case here. On body image, a May 2021 ruling found against a Max Mara ad here (extract of image) and - back to stereotyping - this is an interesting Sept 2021 ruling that did not uphold a complaint against a Strive Footwear commercial, but a more straightforward ruling against the Hurricane Spin Scrubber on March 27, 2024. Following their call for evidence in January 2022, CAP and BCAP have published an interim statement on body image in advertising November 3, 2022.
SEXUALITY/ SOCIAL RESPONSIBILITY/ INCLUSION
BHM: Avoiding offensive depictions of race in ads. CAP News October 10, 2024
The Equality and Human Rights Commission updated their guidance on discriminatory adverts July 16, 2024
The key sections in the CAP Code are Compliance Section 1 and Harm and Offense Section 4. The same sections apply in the BCAP Code. The CAP Code clause 1.3 Clause Marketing communications must be prepared with a sense of responsibility to consumers and to society casts a pretty wide net and can be deployed for example when ruling on portrayals of 'sexuality'; this Em Rose Onlyfans case from January 2024 is an example - the poster is this one and FK Twig and her Calvins got a Jan 2024 dressing down, subsequently adjusted, for this ad. Checking out Take your social responsibilities seriously CAP News August 22, 2024 is a responsible move. In a February 2022 Boohoo case a complaint about images on their website was upheld; see also this Drum story on the Adidas sports bra case May 2022. In October 2021, CAP issued Championing diversity during Black History Month, which includes a number of instructive rulings and 'a few best practices that can go a long way towards helping to deliver a campaign that champions racial diversity in a positive way.' Extending this topic, Tackling racial and ethnic stereotyping in UK ads from February 2022 reports on research findings and other reviews and sets out plans for positive development; Guidance on avoiding racial and ethnic stereotyping in ads was issued by CAP 25 May 2023; see above under the sub-head for the 2024 version of CAP's recognition of Black History Month and this October 10 piece from Brinsley Dresden of Lewis Silikin is an admirable round-up of, and commentary on, sensitive racial issues in advertising in recent times. A ruling went against Outsourceful Jan 24, 2024 for racial stereotyping. Referring to persons with disabilities in ads from CAP News 09 Dec 2021 covers inter alia negative stereotypes and trivialisation.
SEXUALISATION/ SEXUAL IMAGERY
CAP and BCAP’s stricter rules prohibiting the sexual portrayal or sexual representation of under-18s (and those who appear to be under 18) in advertising came into force January 2018. The new rules provide that advertising must not portray or represent anyone who is, or seems to be, under 18 in a sexual way. They are in full here. CAP subsequently issued How to ensure your ad doesn’t break our new rules on sexualisation, setting out the key points to ensure compliance with the rules. For further advice, see CAP’s Advice Sexual Orientation and Gender Identity and Use of Stereotypes. Indecent advertising in fashion: Boohoo, Balenciaga and Pretty Little Thing from Freeths/ Lex December 2022 here walks us through some of the uncomfortable cases in this territory. Sexual imagery in advertising from DLA Piper Feb 2023 is a helpful analysis and includes reference to the January 2023 Demi Lovato ruling (image here).
The Price Marking (Amendment) Order 2024
In force Oct 1, 2025. Lewis Silkin here Nov 11, 2024
CAP Code Section 3 (Misleading advertising) carries several provisions under pricing, and the BCAP Code has the same territory, also under Section 3. Price statements in marcoms should also take account of the Guidance for Traders on Pricing Practices (2018) from the Chartered Trading Standards Institute, under the auspices of DBEIS; the CAP advertising guidance Prices – General is helpful, and from June 2023 Make sure the price is right: using reference pricing in ads covers ground such as ‘strikethrough’ prices and ‘was-now’. Following the self-regulatory provisions should be sufficient, but it is as well to be aware of the statutory requirements. From the legislation header above, the CPRs' Regulation 6 (misleading omissions) carries requirements related to an 'invitation to purchase' and Schedule 1, the equivalent of the UCPD annex/ blacklist, sets out a number of price-related provisions e.g. 'bait' and 'bait and switch'. Another important influence in this context is the EU's Product Price Directive, with a UK transposition of the Price Marking Order 2004 (retained law). CAP News July 2023 To include or not to include? - VAT in stated prices has a best practice guide and in September 2020 At the right price: making price comparisons with previous prices. See March 2024 RRP pricing guidance here and here from CAP and this Premier Inn ruling May 1, 2024 is a good example of how not to use 'from' pricing. The CMA, the UK's competition authority, is increasingly active in this territory and will be more so in light of new powers under the DMCC (see above); they state that they will have regard to their August 2024 Discount and Reference Pricing Principles on mattress pricing online when reviewing other sectors - see Foot Anstey's August 29 commentary here. The ASA have ruled on a number of mid-contract price increases; CMS with a good piece on the issue here October 14, 2024 and Lewis Silkin's 30th September piece on the recent CJEU ruling on Aldi versus the UK scenario is worth a butcher's. For more on pricing, see also the Sales Promotion tab under channel section C later in these pages.
DATA PROTECTION
Privacy issues should be reviewed with specialist advisors
CJEU Rules on Targeted Advertising in Schrems v Meta
Lewis Silkin November 11, 2024
Data Protection update - October 2024
Stephenson Harwood November 5, 2024 UK, EU
A UK perspective on ‘consent or pay’ online advertising models
Stephenson Harwood/ Lex July 25, 2024
The announcement of a new Digital Information and Smart Data Bill
Addleshaw Goddard/ Lex August 7, 2024
The collection and use of personal data for marketing purposes is regulated by the Data Protection Act 2018, which accompanies the GDPR. The UK Data Protection Authority the ICO provide important and valuable advice in all areas of privacy. Their GDPR guide is here and the link here provides access to the ICO interactive tool that will help small and medium-sized businesses with personal data within the EEA. On July 5, 2023 the ICO issued video guides for small organisations, covering data protection, direct marketing and soft opt-in. Some implications from the EU's Digital Services Act are set out here by Lewis Silkin/ Lex October 21, 2022 and New Digital Regulators on the 2023 Horizon from RPC/ Lex sets out some distinctions between the EU and UK regulatory approaches. Harnessing AdTech and Advertiser First party data (ppt slides) from Lewis Silkin April 18, 2024 covers RTB, customer matching, cookies, and a number of other key legal issues related to data protection in the U.K. and Europe. Finally, the data protection legal framework in the U.K. from Hunton July 1, 2024 does what it says on the cover.
CAP DATA
Can we get some privacy? A guide to the privacy rules CAP News April 25, 2024
Stay up to data: four key tips on using personal data for marketing. CAP News Jan 26, 2023
In November 2018, CAP updated and overhauled their Section 10 in the GDPR context and renamed it 'Use of data for marketing', reflecting their focus on marketing-associated issues versus ‘pure’ database activities. See Five top tips on our new rules on the use of data for marketing from November 2018 and from January 2022 CAP News Four key tips on using personal data for marketing. Also relevant is the IAB Transparency and Consent Framework, albeit the TCF has run into consent issues. On the issue of privacy rules in the context of featuring celebrities or members of the public, CAP issued in July 2020 A guide to the privacy rules (see above - re-issued April 2024).
CHANNEL RULES
Media bill becomes law; Lewis Silkin report June 6, 2024
Top tips on targeting and placement. CAP News Feb 22, 2024
This is helpful/ interesting: Comparison Between The Digital Services Act And The Online Safety Act 2023
Lewis Silkin February 5, 2024
Channel, i.e. placement, rules are shown by medium in our section C below. The BCAP (broadcasting) Code Section 32 includes scheduling rules for sensitive sectors such as alcohol and gambling. This August 2021 piece from Simmons & Simmons LLP In brief: media law and regulation in United Kingdom is a valuable covering of the regulatory ground in U.K. media. A recent development is the Directive 2018/1808 amends to the AVMS Directive extending scope online and delivering in particular new rules to video sharing platforms (VSPs), which include the identification of commercial communications where those exist. The UK legislation is here, Ofcom provider guidance as at December 2021 is here and a helpful piece from Taylor Wessing/ Lex in February 2022 is Obligations on video-sharing platforms to regulate advertising. From CAP News Jan 25, 2024 Put a smile on your Face(book) with responsible advertising is rather less strained than the header.
* Recommended read
New ICC Code September 19, 2024
Press release here and key changes here
French trans November 7, 2024, SW here
EU to re-open, merge CSRD, CS3D & Taxonomy
REP November 20, 2024
TEMU challenged by CPC network (FR)
EC Digital Fitness Check published Oct 3, 2024
Lewis Silkin on above here (scroll down)
Recycling claims mislead consumers:
legal analysis for EU & UK markets Client Earth Oct 2, 2024
AI
The AI Convention CSC Sept 12, 2024 here
EASA newsletter update AI legislation Aug 2024
AI is Everywhere - What about advertising?
BBB National Programs Aug 7, 2024 (audio)
AI Global Regulatory Update. Eversheds Sutherland Feb 22, 2024
EU AI Act: first regulation on artificial intelligence. June 2023
Visual summary of the EU's AI Act's risk levels here
Greenwashing Regulations in the Fashion Industry
White & Case Nov 25, 2024. FR, UK, US, DE, AUS
Greenwashing in the EU, France and the UK
Addleshaw Goddard/ Lex November 11, 2024
Hague Court of Appeal: Shell win 2nd round v Milieudefensie
Burges Salmon November 14, 2024 (see below)
Stichting Milieudefensie v. Shell. Freshfields November 6, 2024
The Hague becomes world’s first city to pass law banning fossil fuel-related ads
The UK Guardian September 13, 2024
There's an almost constant barrage of new and developing rules and regulations all around the world on this issue and especially in Europe, which is where we start. We think it's helpful first to distinguish between 'consumer' rules i.e. those that apply to business-to-consumer communications, and 'corporate' rules, which are those that apply to corporate 'ESG' reporting and financial services sector to investors, though the former ad rules will also apply to the financial sector when they advertise (the corporate reporting and due diligence rules don't per se apply in advertising, but we include them later so as to complete 'the green picture'). Anyway, consumer rules first as that's where most of our interests lie. In Europe, you need to be aware in particular of two directives driving the commercial communications elements of the 'Green deal' agenda:
1. The 'Empco' Directive 2024/825, full title and directive here, which was in force from March 2024, meaning that member states have until September 2026 to implement. Basically, and for our purposes, the Directive is an amendment of the seminal UCPD 2005/29/EC which forms the cornerstone of consumer protection rules in Europe. New environmentally-specific clauses are added to the 'blacklist' and e.g self-certification is banned. There's a good summary here from Taylor Wessing. Clauses are placed in our following content section B.
2. The Green Claims Directive. The Commission pages on the proposed new law, which has new requirements for substantiation and verification of green claims, are here. The European Parliament is expected to reach final agreement before the end of 2024; there's likely to be an extended implementation period. A good June 2024 summary here from Freshfields Bruckhaus Deringer and EASA's update, also June 2024, here.
Navigating the increasing scrutiny of green claims
Slaughter and May November 19, 2024. EU, UK. Audio
Standards for Claims of “Carbon Neutral” and “Climate Friendly”
Formosan Brothers October 4, 2024
UK / EU / International ESG Regulation monthly round-up
Hogan Lovells July 2024 pub'd Aug 9, 2024
Katjes 'Climate Neutral' & Green Claims Globally
Herbert Smith Freehills/ Lex July 10, 2024
CSDDD FAQs Proskauer October 4, 2024
FAQs on the implementation of the EU corporate sustainability reporting rules
From the Commission August 7, 2024. Ropes & Gray unpack them here
As this aspect of the green deal is not directly ad-related and as there's so much ground to cover, we've linked the information here
This analysis of the four key directives from White & Case July 8, 2024 is helpful in explaining their roles and see also Regulation Across Jurisdictions from Sidley Austin July 17, 2024
Understanding consumer law when conducting influencer marketing
campaigns in the EU and UK. BCLP October 7, 2024
This is a high profile and somewhat controversial (in regulatory terms) marketing technique that’s deployed right across the world. Most jurisdictions, in Europe at any rate, publish specific rules or guidelines, be they from statutory consumer protection authorities increasingly involved or, more frequently, self-regulatory organisations. The big and consistent issue is obviously identification when a post is an ad, when it's been incentivised in some way; less consistent is the way that authorities require that identification to be made, so check the rules/ guidelines in each country. A number including the US and Canada, Belgium, France, Italy, The Netherlands, Germany, Poland, Spain, Sweden, Australia and China have been assembled by the admirable DLA Piper in their Global Influencer Guide published 2022. For other international rules/ guidelines see ICPEN's Guidelines for Digital Influencers, which dates back to 2016 and the IAB's 2018 Content & Native Disclosure Good Practice Guidelines. August 7, 2024 GALA discuss ARPP's (French self-reg organisation) Certificate of Responsible Influence here and EASA's (the European self-regulatory network) expansion of that is set out here.
The European Commission got interested some time ago and has issued various edicts/ hubs/ guidelines, as is its wont:
The Commission publish The Influencer Legal hub 'These resources are for anyone making money through creating social media content.' and 'The information in the Influencer Legal Hub reflects the position of the Consumer Protection Cooperation Network which adopted the 5 Key Principles on Social Media Marketing Disclosures.' On May 14, 2024, the EU Council approved ‘Conclusions on ways to support influencers as online content creators in the EU.’ Bird&Bird on that here June 12.
In the US, the key rule maker is the FTC (Federal Trade Commission, a government agency), which issues a number of guidelines, the most important of which are:
Guides Concerning the Use of Endorsements and Testimonials in Advertising
Disclosures 101 for Social Media Influencers
FTC Requirements For Influencers: Guidelines and Rules
Termly Feb 2, 2024 published FTC Requirements For Influencers: Guidelines and Rules, a good summary by platform
In self-regulation, the National Advertising Division (NAD) of the Better Business Bureau (BBB) make available a number of cases here; the BBB's ad code is here, clause 30 Testimonials and Endorsements. The key issue, defined by FTC and deployed by NAD, is any 'material connection' between advertiser and influencer and the adequacy of its disclosure, which must be 'clear and conspicuous.' See the US 'general rules' database on this website for more.
ASCI's June 2021 Guidelines for Influencer advertising in digital media (link to a downloadable pdf). Additionally, from the CCPA's Guidelines for Prevention of Misleading Advertisements and Endorsements 2022 (CCPA guidelines): 14. Disclosure of material connection (the same term used by ASCI). 'Where there exists a connection between the endorser and the trader, manufacturer or advertiser of the endorsed product that might materially affect the value or credibility of the endorsement and the connection is not reasonably expected by the audience, such connection shall be fully disclosed in making the endorsement.' In January 2023 the Department of Consumer Affairs, who administer the Consumer Protection Act, issued 'Endorsement know-hows' on when and how to disclose a 'material relationship.' Commentary from SS Rana/ Lex here. Additional Influencer Guidelines for Health and Wellness Celebrities, Influencers and Virtual Influencers August 10, 2023 by the Consumer Protection Authority (CCPA) is here. Summary of Influencer rules from Kan & Krishme/ GALA December 7, 2023 is here.
The latest ICC Code was published September 18, 2024
The code is structured in two main sections: General Provisions and Chapters. General Provisions sets out fundamental principles and other broad concepts that apply to all marketing in all media. Code chapters apply to specific marketing areas, including Sales Promotions (A) Sponsorship (B) Direct Marketing & Digital Marketing Communications (C) Environmental Claims in Marketing Communications (D) and Teens and Children (E). The Code 'should also be read in conjunction with other current ICC codes, principles and framework interpretations in the area of marketing and advertising':
ICC Guide for Responsible Mobile Marketing Communications
Mobile supplement to the ICC Resource Guide for Self-Regulation of Interest Based Advertising
ICC Framework for Responsible Marketing Communications of Alcohol
ICC Resource Guide for Self-Regulation of Online Behavioural Advertising
ICC Framework for Responsible Environmental Marketing Communications (2021)
ICC Framework for Responsible Food and Beverage Marketing Communication
Key rules are set out in the following content section B and channel section C, as applicable
Lawyer commentary
Kids and Teens Online Safety and Privacy Roundtable
Baker Mckenzie July 26, 2023. Canada UK and USA. Video
EU: Two Key Decisions Highlight Issues When Handling Children's Data
Collyer Bristow/Lex 21 June, 2023
The rules are both 'horizontal', i.e. they apply across product sectors, and the ICC also publish 'vertical' sector-specific framework rules such as those for Alcohol, or Food and Beverages (as linked above). While these rules are referenced in the sections that follow, we don't extract them in full as these product sectors are covered by specific databases on this website. These sector rules in particular need to be read with a) the general rules that apply to all product sectors and b) the specific legislation and self-regulation that frequently surrounds regulation-sensitive sectors. Channel rules from the ICC Code, such as those for OBA, are shown within the relevant sub-heads under our channel section C, together with the applicable European legislation.
Issue or channel | Key European legislation and clauses |
Cookies |
The EU ‘Cookies Directive’ 2009/136/EC
articles 5 and 7, which amended the E-Privacy Directive 2002/58/EC
|
Electronic coms. Consent and Information |
Articles 5 (3) and 13
|
E-commerce; related electronic communications
|
Directive on electronic commerce 2000/31/EC of 8 June 2000 on certain legal aspects of information society services: http://data.europa.eu/eli/dir/2000/31/oj
Articles 5 and 6
|
Marketing Communications |
Directive 2005/29/EC on unfair business-to-consumer commercial practices
Articles 6, 7, 14 (amendments re comparative advertising), Annex I
December 2021 Commission guidance. See Omnibus Directive below; also amended by the Empco Directive see Environmental Claims section
|
Audiovisual media |
Directive 2010/13/EU concerning the provision of audiovisual media services (Audiovisual Media Services Directive; consolidated version) Directive 2018/1808 extended some rules into especially video-sharing platforms |
Data Processing |
Regulation 2016/679/EU on the processing of personal data (GDPR) |
Two relatively recent arrivals in EU digital platform regulation are the Digital Markets Act (implemented May 2023), aka Regulation (EU) 2022/1925 and its implementing provisions; Commission explanatory pages here and the Digital Services Act, pages here (implemented Feb 2024 for all platforms) aka Regulation 2022 (EU) 2022/2065. The first, as the name implies, is the EU's means of reining in the major digital 'gatekeepers' to ensure 'fairer and more contestable' markets. Somewhat obviously, the rules are aimed at platforms rather than advertisers and agencies, though there are implications for behaviourally targeted advertising. The DSA's main goal 'is to prevent illegal and harmful activities online and the spread of disinformation.' Loosely, this is the EU's Online Safety Act.
Shaping The Future Of Tech: Latest Updates On The Digital Markets Act
Quinn Emanuel/ Lex October 10, 2024
Rules for data processing, consent and information in digital communications in Europe are shown above under the Directives table and in our channel section
See the US general rules on this database for privacy/ processing rules in that jurisdiction. Below are some key legal commentaries on this topic
Data Protection & Privacy: EU overview. Hunton Andrews Kurth July 3, 2024*
Data Protection update - August 2024. Stephenson Harwood/ Lex
Above covers Australia, China, EU, UK, USA
Consent or pay: one rule for some (large online platforms),
another rule for everyone else? Weil Gotshal & Manges 30/8/24
Meta’s Ad-Free Subscription Violates Competition Law
Adam Satariano NYT July 1, 2024
EDPB Opinion 8/2024 on Pay or Consent April 17. Lexia May 8
EDAA launches new solution to DSA ad transparency requirements
Report from the Commission to the European parliament and the Council on implementation
June 18, 2024. Commentary from Lewis Silikin July 9, 2024 here (See third entry)
Directive 2019/2161, known as the Omnibus Directive but more formally as (deep breath) Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules sets out new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here. Provisions were supposed to have been transposed and in force in member states by May 28, 2022, though there were several delays, now resolved.
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Sections B and C below set out the rules that are relevant to marketing communications from the directives above, together with the self-regulatory measures referenced under point 1 in this overview.
As this is reference work rather than current, we have made it available in back-up here
Advertising, Media and Brands Global Hot Topics Squire Patton Boggs Sept 16, 2024
1. CHILDREN’S RULES FROM CAP AND BCAP
1.1. Age distinctions
1.2. Harm
1.3. Credulity and unfair pressure
1.4. Pricing
1.5. Direct exhortation and parental authority
1.6. Promotions
1.7. Sexualisation
2. EUROPEAN LEGISLATION and UK implementation
2.1. AVMS Directive and Ofcom Code
2.2. UCPD and CPRs
4.1. Guidance
4.2. Rulings
4.3. Pan European Game Information (PEGI)
1. CHILDREN’S RULES FROM CAP AND BCAP
Note: there are particular rules for some sectors, for example, Food and (Soft) Drinks. We don't show those rules here; this section 1 provides the rules specific to children for all product categories, and is particularly relevant to those products used by children and permitted to communicate to them
Section 5 CAP and BCAP
BCAP (Broadcast, i.e. Television and Radio) rules differ slightly from CAP (non-broadcast, i.e. print and including online) rules, so we have set out both below. The links in this paragraph are to the full Children’s rules, which include some important definitions and principles
1.1. Age distinctions
1.2. Harm
Pedestrians and cyclists must be seen to observe the Highway Code
See also CAP Guidance Fear and Distress and Safety
1.3. Credulity and unfair pressure
'The Code does not prohibit targeting advertising at children but it does expect that advertisers consider their audience carefully. Broadly, the Code states that marketing communications addressed to or targeting children must not exploit their credulity, loyalty, vulnerability or lack of experience. While it is acceptable for ads to present products in a favourable light that may appeal to children, they should not go so far as to suggest that a child might be unpopular as a result of, or lacking in courage or loyalty for, not owning or buying the featured product Weetabix Ltd, 13 February 2013. CAP’s Advice note on credulity December 2013 (old, but still applicable)
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Note: the following clauses are under BCAP Section 4 Harm and Offence. They refer to those under 18, versus the Children’s rules for under 16s
1.4. Pricing
1.5. Direct exhortation and parental authority
Advertisers have been caught out for presenting games and toys in ways that confuse younger children between the reality of the product’s abilities and imaginative play. Advertisers should remember that children aren’t always able to distinguish between real-life situations and fantasy and must avoid causing confusion. In addition, ads targeted at or addressed to children mustn’t encourage them to make a nuisance of themselves or encourage a direct exhortation to purchase Wm Morrison Supermarkets plc, 26 October 2011 (this is old, but recent searches have not turned up more). See also Children: Direct exhortation from August 2015
1.6. Promotions
See CAP Guidance Children: Promotional marketing
1.7. Sexualisation
May 2017: new rules prohibiting the sexualisation of under-18s in advertising
See also CAP guidance Children: Targeting. CAP Advice online March 2023. Covers specifically Sexualised imagery
2. EUROPEAN LEGISLATION and UK implementation
2.1. Article 9 (g) of the AVMS Directive 2010/13/EU
These rules are reflected in the BCAP measures set out above, and in the Ofcom Broadcasting Code, Appendix 2, Article 9 (g)
2.2. From Annex I of the Unfair Commercial Practices Directive 2005/29/EC; Commercial practices which are in all circumstances considered unfair:
2.3. Also from the Unfair Commercial Practices Directive 2005/29/EC Article 5 (3) transposed by the CPRs under Regulation 2
(5) In determining the effect of a commercial practice on the average consumer (a) where a clearly identifiable group of consumers is particularly vulnerable to the practice or the underlying product because of their mental or physical infirmity, age or credulity (italics ours) in a way which the trader could reasonably be expected to foresee, and (b) where the practice is likely to materially distort the economic behaviour only of that group
4.1. Guidance
4.2. Rulings
Here is the link to the Search function for Video Games on the rulings section of the ASA website
https://www.asa.org.uk/codes-and-rulings/rulings.html?q=video+games
Here are a couple of issues/ rulings:
4.3. Pan European Game Information (PEGI)
Code of conduct for the European interactive software industry regarding age rating labelling, promotion and advertising of Interactive software products and maintenance of safe online gameplay:
https://pegi.info/pegi-code-of-conduct
SELF-REGULATION: THE CAP AND BCAP CODES
1.1. Recognition of advertising/ marketing communications
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
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
The CAP code provides that ‘… marketing communications must be identifiable as such’ (rule 2.1). This means that ‘they need to be designed and presented in a way that makes it clear that it is advertising material’ (From September 2016 Advice online, ‘Recognising marketing communications: Overview’)
Additionally, it provides that ‘Unsolicited e-mail marketing communications must be obviously identifiable as marketing communications without the need to open them’ (rule 2.2). ‘The medium or targeting will also be relevant when deciding what is necessary to ensure that consumers know they are viewing a marcom. Consumers should be able to tell from the envelope itself that a direct mailing is a marketing communication (Also from Recognising marketing communications: Overview)
Also, ‘Marketing communications must not falsely claim or imply that the marketer is acting as a consumer. Definition. A consumer is anyone who is likely to see a given market communication, whether in the course of business or not.(CAP Code, Scope of Code) or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context’ (rule 2.3)
Marketers and publishers must make clear that advertorials are marketing communications; for example, by heading them ‘advertisement feature’’ (rule 2.4)
On the other hand, using terms like ‘sponsorship’, ‘sponsored content’ and ‘in association with’ to describe an advertisement feature is unlikely to be acceptable, and the advertisement will not be considered clear. This was ruled by the ASA in Michelin Tyre plc and Telegraph Media Group Ltd 2015
For more detailed discussion on what is and isn’t acceptable, see CAP’s Guidance Recognising ads: advertisement features
And CAP News in March 2021: Influencing Responsibly - Make clear upfront when ads are ads
BCAP Code, Section 2: Recognition of advertising
Advertisements must be obviously distinguishable from editorial content, especially if they use a situation, performance or style reminiscent of editorial content, to prevent the audience being confused between the two. The audience should quickly recognise the message as an advertisement (rule 2.1)
If used in an advertisement, an expression or sound effect associated with news bulletins or public service announcements (for example, ‘news flash’) needs special care. The audience should quickly recognise the message as an advertisement (rule 2.2)
The use of a title, logo, set or music associated with a programme that is broadcast on that medium needs special care. The audience should quickly recognise the message as an advertisement” (rule 2.3)
Television advertisements, except for programme promotions must not:
Radio only: A person who currently and regularly reads the news on radio or television may voice radio advertisements but must not advertise products or services that are likely to be seen to compromise the impartiality of their news-reading role (rule 2.5)
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)
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
A claim that a company had ‘the most comfortable beds in the world’ was considered by the ASA not to be misleading because it was subjective, as the favoured type of mattress would differ between consumers:
ASA Ruling on Hypnosis, 2014
Conversely, claims that drain cleaning products were No.1 for Bathroom Plughole Blockages’ and No. 1 for Kitchen Blockages’ were not puffery and therefore misleading. The ASA considered that the claims implied that the products were the best-selling ones in their category, however the Company that produced them could not demonstrate that they outsold their competitors’ products:
ASA Ruling on Challs International Limited, 2016
The ASA ruled that claims such as ‘improves fuel combustion which means better MPG and lower CO2 emissions for both petrol and diesel engines’, ‘Cuts emissions by 30-50% and improves MPG’, and ‘makes a positive environmental contribution to a cleaner atmosphere’ were in breach of the CAP Code because the advertiser did not hold adequate supporting evidences. In this case, the advertiser provided documentation including press releases, details of tests, customer testimonials and magazine articles, however this was not considered sufficient for the purposes of the Code:
D Lock & Associates t/a Broquet, 2016
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner. Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means (CAP Code, rule 3.3; BCAP Code, rule 3.2)
Marketing communications must not materially mislead by omitting the identity of the marketer. Some marketing communications must include the marketer's identity and contact details. Marketing communications that fall under the Database Practice or Employment sections of the Code must comply with the more detailed rules in those sections. Marketers should note the law requires marketers to identify themselves in some marketing communications. Marketers should take legal advice (CAP Code, rule 3.5; BCAP Code, rule 3.6)
For marketing communications that quote prices for advertised products, material information [for the purposes of rule 3.3] includes:
The main characteristics of the product
The identity (for example, a trading name) and geographical address of the marketer and any other trader on whose behalf the marketer is acting
The price of the advertised product, including taxes, or, if the nature of the product is such that the price cannot be calculated in advance, the manner in which the price is calculated
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
In December 2015, the ASA held that an online travel agent’s website omitted material information because it displayed the price of a flight that included a pre-applied discount, which was only available to consumers paying via a pre-paid Visa card. Therefore, it was misleading and in breach of Rule 3.3 of the CAP Code and 3.2 of the BCAP Code
ASA Ruling on Opodo Ltd, 2015
In December 2017 All Care, a care service website, omitted material information because it suggested that DBS (Disclosure & Barring checks) would be paid for all, when they only paid for employees who stayed longer than a year. Another claim ‘Rates of pay £8.30 per hour Monday through Friday’ was taken to mean that that rate would apply for all hours worked including travel time between clients during working hours. Carers were only paid for the hours delivering care and were not paid for travel time between clients; the ad did not make that clear:
ASA ruling on All Care Dec2017
In May 2016 the ASA ruled that a sales promotion featured on a betting slip featured text that offered a self-service £2 free bet. Advertiser Ladbrokes stated that the promotion disclosed the signification condition ‘Promotion runs whilst stocks last’ on their website and on posters, but the betting slips themselves had not included that; the ASA considered this was material information that should have been made sufficiently clear in a qualifying statement at the very least
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)
Note: stating prices correctly in advertising can be difficult from a regulatory perspective. If uncertain, check with your/ your client’s lawyers. The following, as with all of the contents of this website, does not constitute advice, just what the rules say. See also the later Legislation section (point 2) or some significant case law
Price statements in marcoms/ advertisements should take account of the Guidance for Traders on Pricing Practices from the Chartered Trading Standards Institute (CAP Code, Prices Background). Price statements include statements about the manner in which the price will be calculated as well as definite prices
Ensure prices match the product shown
Do not use ‘from’ and ‘up to’ to exaggerate the availability of a product at a given price
Additional CAP advertising guidance
Retailers’ Price Comparisons February 2013
Lowest Price Claims and Price Promises February 2013
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)
Keep your “free” claims problem-free. CAP News 22 October 2020 and issued again September 30, 2021. Covers pure ‘free’ claims, ‘Conditional purchase’ promotions (Marketers are allowed to use the term 'free' in situations where receiving a free product or service is contingent on consumers purchasing another item - provided the quality of the paid-for item has not been reduced, and the paid-for item’s price has not been increased to cover the cost of supplying the free item) and Package Offers, with links to other guidances on the topic and some relevant rulings
Rulings search ‘free’
https://www.asa.org.uk/codes-and-rulings/rulings.html?q=Free
Example ruling
A February 2014 ruling upheld a complaint about a Bet 365 TV commercial and claims on the website www.bet365.com, which promoted a ‘Free Bet Offer’. The terms stated ‘Free bet winnings exclude stake’. However, customers would have to place their own stake again in order to make the next bet, and would not be offered an additional free stake or matched stake by the advertisers. On that basis, the ASA did not consider that the promotion offered winning customers any 'free' element when making their subsequent bet:
https://www.asa.org.uk/rulings/hillside-new-media-ltd-a13-245703.html
English High Court considers when ads are comparative by implication
Osborne Clarke/ Lex April 9, 2024
The ASA will consider unqualified superlative claims as comparative claims against all competing products. Superiority claims must be supported by evidence unless they are obvious puffery (i.e. claims that consumers are unlikely to take literally). Objective superiority claims must make clear the aspect of the product or service or the marketer’s/ advertiser’s performance that is claimed to be superior (CAP Code and BCAP Code, Comparisons principle). A quick guide to comparative advertising from CAP News Feb 2021 and Shall I compare thee…? Making comparisons with identifiable competitors. CAP News May 4th, 2023
Comparisons with identifiable competitors
Vexed by verifiability? How to make sure your ads comply. CAP News. February 2020
Other comparisons
Price comparisons
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)
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)
Health/ safety
Social responsibility
Advertising guidance on social responsibility
https://www.asa.org.uk/advice-online/social-responsibility.html
The first rulings under the Gender Stereotyping new rule happened 14/8/19; both VW E-Golf and Philadelphia Cheese were found to have breached the rules, but the Buxton water complaint on the same grounds was not upheld
Rulings search ‘Offense’
https://www.asa.org.uk/codes-and-rulings/rulings.html?q=harm+and+offense
Some rulings
1.September 2015: a national press ad for Paddy Power featured odds on the candidates for the 2015 FIFA presidential election. An image showed Sepp Blatter revealing the winner by holding up a piece of paper which said ‘ME’. Text at the top of the ad stated, "JUST F**K OFF ALREADY!". Because the ASA did not consider the ad would be offensive to those who were likely to see it, it was concluded that it was unlikely to cause serious or widespread offence.
https://www.asa.org.uk/rulings/paddy-power-plc-a15-304402.html
2.July 2014. Trocaderos South Shields. A posting on the TrocStars' Facebook page featured a poster with an image of two women both drinking from large glasses and text which stated "Got yourself drunk at Trocs? Woke up in someone else's bed? Walk of shame? F*ck that, it's the stride of pride!" Because the ad used offensive language, encouraged excessive drinking and linked alcohol with sexual activity, the ASA concluded that it was irresponsible and in breach of the advertising Code (rule 4.1, Harm and offence)
https://www.asa.org.uk/rulings/camerons-brewery-ltd-and-trocaderos-south-shields-a14-269470.html
3. February 2014: a TV ad for Kabuto noodles featured on-screen text that stated "The improvised ad break" and "Scenario #3 Kabuto Samurai (dubbed)". The ad featured four actors on a stage in front of an audience. Two of the actors were speaking in an accent, which the remaining two actors were ‘translating’. The complainant stated the ad was offensive because it mocked other cultures and races. The ASA considered that the humour was derived from the fictitious translation, rather than from mocking the culture and race of others. Whilst it was acknowledged that some viewers may find the ad distasteful, the ASA did not consider it was likely to cause serious or widespread offence, or encourage harmful and discriminatory behaviour or treatment. On that basis, it was concluded that the ad did not breach the Code:
https://www.asa.org.uk/rulings/kabuto-foods-ltd-a13-250344.html
The rules (see below for clauses)
CAP Code Section 11:
https://www.asa.org.uk/type/non_broadcast/code_section/11.html
BCAP Code Section 9:
https://www.asa.org.uk/type/broadcast/code_section/09.html
Key guidance
CMA Green Claims Code September 2021
Carries statutory authority weight; see also the CMA's Green Claims Checklist
It’s not that easy being ‘green’ – promoting good work without misleading by omission.
CAP News June 5, 2024
Environmental Claims Special Edition of the Insight Newsletter
CAP Insight June 5, 2023
Misleading environmental claims and social responsibility
Highly significant June 2023 guidance; recent rulings, emphasis on social responsibility
Other guidance/ work
Ensuring your environmental claims are more than just hot air
CAP News June 2020
Updated environmental guidance: green disposal claims
CAP News 28 November, 2023
ASA website Our work on Climate Change and Environmental Claims
Internationally
WFA Planet Pledge April 2021 Global Guidance on Environmental Claims April 2022
ICC Advertising and Marketing Communications Code (EN 2024)
Chapter D for environmental claims
The CAP and BCAP codes
From 1 August 2017 Regulation EU 2017/1369 mandates a rescaling of existing energy labelling to provide more accurate information for consumers, including in advertising, where the energy efficiency class of a product and the range of classes available will need to be given. The existing delegated regulation continues to apply whilst that rescaling process is ongoing. (GRS note: The Regulation is retained legislation in the U.K. See also The Energy Information (Amendment) Regulations 2020). The rule:
The following rule is subject to the same conditions as above, i.e. the rule must be read in conjunction with etc.
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 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
Other pricing-related rules from the CPRs are referenced above under Pt. 2.1.
SELF-REGULATION; the 2024 ICC Code
1.1. General provisions
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
2.4. The Empco Directive
2.5. The Green Claims Directive
1.1 General provisions
Basic principles (Art. 1)
Social responsibility (Art. 2)
Marketing communications should not:
Decency (Art. 3)
Honesty (Art. 4)
Truthfulness (Art. 5)
identification and transparency (Art. 7)
identity of the marketer (Art. 8)
Use of 'free' and 'guarantee' (Art. 10)
NEW ARTICLE
Presentation of the offer (Art. 11)
NEW ARTICLE
Automatic renewals (Art.12)
NEW ARTICLE
Use of “guarantee” (Art. 13)
Comparisons (Art. 14)
Exploitation of goodwill (Art. 15)
Imitation (Art. 16)
Denigration (Art. 17)
Testimonials (Art. 13)
Testimonials and endorsements; influencer marketing communications (Art. 18)
Portrayal or imitation of persons and references to personal property (Art. 19)
NEW ARTICLE
Children and teens (Art. 20)
For further specific rules, see Chapter E – Children and teens.
.........................................................
Safety and health (Art. 21)
NEW ARTICLE
Environmental marketing communications should be so framed so as not to abuse to take advantage of consumers’ concern for the environment, nor exploit their possible lack of environmental knowledge;
D4. Comparisons
Article D6 – Claims regarding components and elements
D7. Certifications, signs and symbols
D6. Waste handling
D9. Responsibility
This sector has a separate database on this single topic. Access via the drop-down on the home page
We have not set out individual clauses below, therefore.
Applicable self-regulation
This sector has a separate database on this single topic. Access via the drop-down on the home page
Applicable self-regulation and legislation
This sector has a separate database on this single topic. Access via the drop-down on the home page of this website
Applicable self-regulation and legislation
Legislation
Article 22, AVMS Directive. Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:
2.1 General Provisions from the Unfair Commercial Practices Directive 2005/29/EC (UCPD)
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02005L0029-20220528 (consolidated text 28/05/22)
Directive 2019/2161 amended the UCPD setting out some new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour (amending Directive 2011/83/EU, not shown below), and price reduction information under the Product Pricing Directive 98/6/EC. Potentially significant for multinational advertisers is the amerndment of article 6 of the UCPD, adding the clause (c) shown below in italics (as are other amends). Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here.
Guidance
In December 2021, the European Commission issued Guidance on the interpretation and application of the UCPD, updating the 2016 version. This is a significant document that covers, for example, guidance on environmental claims, and references relevant case law from a number of countries. It is the definitive guidance on how to apply the most important consumer protection - as that relates to commercial communications - regulation in the EEA
Article 6. Misleading actions
1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:
(a) the existence or nature of the product;
(b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, after-sale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product;
(c) the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product;
(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage;
(e) the need for a service, part, replacement or repair;
(f) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions;
(g) the consumer's rights, including the right to replacement or reimbursement under Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (8), or the risks he may face.
2. A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves:
(a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor;
(b) non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where:
(i) the commitment is not aspirational but is firm and is capable of being verified, and
(ii) the trader indicates in a commercial practice that he is bound by the code.
(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors.
Article 7. Misleading omissions
1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.
3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted.
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting
(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;
(d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence;
(e) for products and transactions involving a right of withdrawal or cancellation, the existence of such a right;
(f) for products offered on online marketplaces, whether the third party offering the products is a trader or not, on the basis of the declaration of that third party to the provider of the online marketplace.
4a. When providing consumers with the possibility to search for products offered by different traders or by consumers on the basis of a query in the form of a keyword, phrase or other input, irrespective of where transactions are ultimately concluded, general information, made available in a specific section of the online interface that is directly and easily accessible from the page where the query results are presented, on the main parameters determining the ranking of products presented to the consumer as a result of the search query and the relative importance of those parameters, as opposed to other parameters, shall be regarded as material. This paragraph does not apply to providers of online search engines as defined in point (6) of Article 2 of Regulation (EU) 2019/1150 of the European Parliament and of the Council.
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material.
6. Where a trader provides access to consumer reviews of products, information about whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the product shall be regarded as material.
Commercial practices which are in all circumstances considered unfair
Marcoms-relevant only; see Empco amends below
1. Claiming to be a signatory to a code of conduct when the trader is not.
2. Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation.
3. Claiming that a code of conduct has an endorsement from a public or other body which it does not have.
4. Claiming that a trader (including his commercial practices) or a product has been approved, endorsed or authorised by a public or private body when he/ it has not or making such a claim without complying with the terms of the approval, endorsement or authorisation.
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time; or
(c) demonstrating a defective sample of it,
with the intention of promoting a different product (bait and switch).
7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice.
9. Stating or otherwise creating the impression that a product can legally be sold when it cannot.
10. Presenting rights given to consumers in law as a distinctive feature of the trader's offer.
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1).
11a. Providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results.
13. Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not.
16. Claiming that products are able to facilitate winning in games of chance.
17. Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.
18. Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions.
19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent.
20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.
21. Including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not.
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
23b. Stating that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers.
23c. Submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products.
26. Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation. This is without prejudice to Article 10 of Directive 97/7/EC and Directives 95/46/EC (2) and 2002/58/EC.
28. Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them. This provision is without prejudice to Article 16 of Directive 89/552/EEC on television broadcasting.
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
2.2.1. Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers
Article 2
For the purposes of this Directive:
(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;
(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products;
(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer;
(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity;
(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity.
Article 3
1. The selling price and the unit price shall be indicated for all products referred to in Article 1, the indication of the unit price being subject to the provisions of Article 5. The unit price need not be indicated if it is identical to the sales price.
2. Member States may decide not to apply paragraph 1 to:
3. For products sold in bulk, only the unit price must be indicated;
4. Any advertisement which mentions the selling price of products referred to in Article 1 shall also indicate the unit price subject to Article 5.
Article 4
1. The selling price and the unit price must be unambiguous, easily identifiable and clearly legible. Member States may provide that the maximum number of prices to be indicated be limited;
2. The unit price shall refer to a quantity declared in accordance with national and Community provisions.
Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight.
Article 5
1. Member States may waive the obligation to indicate the unit price of products for which such indication would not be useful because of the products' nature or purpose or would be liable to create confusion.
2. With a view to implementing paragraph 1, Member States may, in the case of non-food products, establish a list of the products or product categories to which the obligation to indicate the unit price shall remain applicable.
Article 6a
1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction.
2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction.
3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly.
4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2.
5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction.
Article 6
Misleading actions
1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:
(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage.
Article 7
Misleading omissions
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
(a) the main characteristics of the product, to an extent appropriate to the medium and the product;
(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting;
(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable.
Annex I
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising).
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time; or
(c) demonstrating a defective sample of it,
with the intention of promoting a different product ('bait and switch').
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02010L0013-20181218
Content rules excluding alcohol (see pt. 1.5 above) in audiovisual commercial communications
Article 9
The AVMS Directive includes some further new provisions from Directive 2018/1808 which may have implications for food and alcohol advertising in particular. See the extracted clauses here, in particular article 4
Article 1
Amendments to Directive 2005/29/EC
(1) in Article 2, the first paragraph is amended as follows: (b) the following points are added:
(2) Article 6 is amended as follows: (a) in paragraph 1, point (b) is replaced by the following:
(b) in paragraph 2, the following points are added:
(3) in Article 7, the following paragraph is added:
(4) Annex I is amended in accordance with the Annex to this Directive. Annex I to Directive 2005/29/EC is amended as follows:
(1) the following point is inserted:
(2) the following points are inserted:
(3) the following point is inserted:
‘
(4) the following points are inserted:
TV commercials are subject to mandatory pre-clearance at script and film stages by Clearcast
Radio commercials need to be cleared at script stage:
http://www.radiocentre.org/clearance/
From BCAP Code Section 32
The above is from Appendix II of the CAP Code
BCAP introduces new rules restricting broadcast ads for qualifying cryptoassets
Lewis Silkin/ Lex September 30, 2024
The ASA is designated by Ofcom as the co-regulator for advertising on VOD services. Appendix 2 has been included in the CAP Code; this will apply to regulated on-demand services and reflect the legal requirements in the Communications Act. Remit note is here. The Appendix doesn’t go beyond the existing CAP rules
From Ofcom Section nine: Commercial references on TV
EASA Jan 2024 update on the AVMSD
Article B12: Media sponsorship
Note: The AVMS Directive is the source of rules for e.g. programme sponsorship and product placement. Observation of those rules is largely the responsibility of the media owners, so we don’t set them out below. They are available from the linked AVMS Directive (consolidated version following 2018/1808 amends, shown in italics below) and under our General sector. Clauses below are those most relevant to advertising content
1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements:
2. Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communications, accompanying or included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended. See 4. below
2. Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22.
3. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications for alcoholic beverages. Those codes shall aim to effectively reduce the exposure of minors to audiovisual commercial communications for alcoholic beverages.
4. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications, accompanying or included in children's programmes, for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium and sugars, of which excessive intakes in the overall diet are not recommended.
Those codes shall aim to effectively reduce the exposure of children to audiovisual commercial communications for such foods and beverages. They shall aim to provide that such audiovisual commercial communications do not emphasise the positive quality of the nutritional aspects of such foods and beverages.
5. Member States and the Commission may foster self-regulation, for the purposes of this Article, through Union codes of conduct as referred to in Article 4a (2).
Article 4a is found here
Includes brochures, leaflets, circulars, mailings, catalogues, follow-up literature and other printed material
Press, magazines, promotional literature, e.g. leaflets, brochures, etc.
..........................................................................
Applicable self-regulation and legislation
Refer to Content Section B for provisions; of particular relevance below:
Identity of the marketer (Art. 8)
Annex I of the UCPD
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1)
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
...........................................
Article B12 ICC Code Media sponsorship
CONTEXT
This section sets out the broad rules for the online environment generally. Below this, we cover more specific channels such as email/SMS/MMS, marketers’ own websites, and a section on Cookies/ privacy rules and OBA. The key issue is that the offline rules expressed in the CAP Code essentially apply online (see Scope of the Code), and that owned space is in remit. In other words, if it’s a marketing communication on your own website or social network space, it’s subject to the (CAP) children's rules set out in our earlier content section B as well as the rules under the General tab in section B
YouTube accused of collecting children's data. BBC March 1, 2023
Children's Code - ICO evaluation report. Squire Patton Boggs June 23, 2023
CAP ADVICE AND GUIDANCE
GDPR AND CHILDREN
From the EC Data Protection pages on GPPR:
Are there any specific safeguards for data about children?
GUIDELINES
The Article 29 Working Party was established under Article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board; the guidelines below remain applicable and definitive. See Section 7.1 for Child-specific consent guidelines
Guidelines on consent under Regulation 2016/679
THE INFORMATION COMMISSIONER'S OFFICE - ICO
CAP CODE SECTION 10 USE OF CHILDREN'S DATA
LEGISLATION
CPRs transposing UCPD 2005/29/EC
Consent and information in direct electronic communications
Requirements are spelt out below under the General tab as they apply to all audiences, children included, and therefore should be observed in commercial communications to children where those are permitted. Key legislation is immediately below
The Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR)
The Electronic Commerce (EC Directive) Regulations 2002
CAP Insight newsletter: advertising on social media Jan 25, 2024
The Digital Markets, Competition and Consumers (DMCC) Bill Govt. press release April 25, 2023
Data Protection and Digital Information (No. 2) Bill. Link is to Bill summary 8 March from Department for Science, Innovation & Technology
The bill is here; commentary here from Baker McKenzie/ Lex March 9, 2023 and Herbert Smith Freehills LLP/ Lex March 13 here set out the changes to No.1
Further commentary here from Squire Patton Boggs April 18, 2023 sets out some of the issues with EU 'conflict'
The above bill did not make it through wash-up
CONTEXT
This section sets out the broad rules for the online environment generally. Below this, more specific channels are covered such as email, marketers’ own websites, and a section on Privacy rules and their impact on e.g. OBA. As the boundaries online can be less clear, and as space online is often advertiser-owned, there’s greater focus on the identification of advertising, as advertising is in remit (i.e. subject to the rules) in owned and (some) earned space as well as paid. The definition of advertising is therefore important. CAP’s online scope ‘Extending the Digital remit of the CAP Code’, is fully explained in the linked document
REMIT: WHICH RULES APPLY AND WHERE
NON PAID-FOR SPACE
THE LAW
THE ICO
The ICO is the national data protection authority - ‘the UK's independent body set up to uphold information rights.’ Their guidance on various forms of commercial activities on and offline is important and valuable. In this general online context, their Personal information online code of practice is most relevant; see channels below for more specific guidance
SOME EDPB GUIDANCE
AFFILIATE MARKETING
Repository of European IAB’s Initiatives for Responsible Digital Advertising
IAB 30 September 2024. Topics Privacy, DSA, Influencer marketing, Qualid, Child Safety,
Commission's call for evidence on DSA minors protection guidelines; closed 30th Sept 2024
EASA on the above and two calls for tender August 8, 2024
Meta and self-regulation December 2023
This particular section provides the broad regulatory picture for the commercial digital environment. More specific channel rules such as those for email, OBA, Social Networks etc., follow. As the boundaries online can be less clear, and as a considerable amount of space online is advertiser-owned, there’s greater focus on the identification of advertising, as advertising is in remit (i.e. subject to the rules) online in owned and (some) earned space as well as paid
Online Deals Do's And Don'ts For Online Business Under EU Law
Logan & partners/ Mondaq November 28, 2023
Directive 2000/31/EC on electronic commerce
Regulation 2016/679/EU on the processing of personal data (GDPR)
Directive 2018/1808 amending AVMS Directive 2010/13/EU
Two relatively recent arrivals in EU digital platform regulation are the Digital Markets Act (implemented May 2023), aka Regulation (EU) 2022/1925 and its implementing provisions; Commission explanatory pages here and the Digital Services Act, pages here (implemented Feb 2024 for all platforms) aka Regulation 2022 (EU) 2022/2065. The first, as the name implies, is the EU's means of reining in the major digital 'gatekeepers' to ensure 'fairer and more contestable' markets. Somewhat obviously, the rules are aimed at platforms rather than advertisers and agencies, though there are implications for behaviourally targeted advertising. The DSA's main goal 'is to prevent illegal and harmful activities online and the spread of disinformation.' Loosely, this is the EU's Online Safety Act.
Chapter C ICC Code; Direct Marketing and Digital Marketing Communications (extracts)
2024 amends in italics; there are some 20 articles in this section of the code
C2. Identification and transparency
Article C3 – Presentation of the offer
The terms of offers should be presented in a transparent and understandable manner in accordance with Article 11 (Presentation of the Offer) of the General Provisions
C2. Identity of the marketer
Directive 2002/58/EC; Article 13
Unsolicited communications
* Now repealed; GDPR applies
General information to be provided
(a) The name of the service provider
(b) The geographic address at which the service provider is established
(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
(f) As concerns the regulated professions:
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
Article 6
Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
Article 7
Unsolicited commercial communication
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial communications
European Data Protection Board / Article 29 Working Party
EASA Digital Marketing Communications Best Practice Recommendation. This document:
Regulatory spotlight on children’s data
CMS October 22, 2024
YouTube accused of collecting children's data. BBC March 1, 2023
TikTok fined £12.7m for misusing children's data. BBC April 4, 2023.
Commentary on the above from Ropes and Gray LLP here April 6, 2023. From that The ICO has also further indicated that, as of September 2022, it was examining over 50 online services for compliance with its age appropriate design code, with 6 ongoing investigations into organizations who have not “taken their responsibilities around child safety seriously enough.” As a result, further regulatory action relating to children’s data compliance may be seen in the year ahead.
Privacy issues should be reviewed with specialist advisors
COOKIES
The new data bill from DSIT Oct 24, 2024. ICO response here
The ICO’s cookie focus is extending to ad tech: 5 things you need to know
Slaughter and May/ Lex September 26, 2024
The announcement of a new Digital Information and Smart Data Bill
Addleshaw Goddard/ Lex August 7, 2024
A new path for Privacy Sandbox on the web. July 22, 2024
Google re new plans for third-party cookies on Chrome
Privacy issues should be reviewed with specialist advisors
The ICO’s Guide to the General Data Protection Regulation is here. Updates can be found here. Check privacy matters, and especially how GDPR applies to cookies, with your/ your client’s lawyers. Relevant EDPB guidance from March 2019 is Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPR. And Is the UK getting tough on cookies? The ICO responds to the Government’s plans from Slaughter & May October 2021 addresses some potentially significant developments for cookie regulations
The Data Protection Act 2018 replaces the 1998 Act. The Overview of the Act explains the relationship with the GDPR:
(1) This Act makes provision about the processing of personal data. (2) Most processing of personal data is subject to the GDPR. (3) Part 2 supplements the GDPR (see Chapter 2) and applies a broadly equivalent regime to certain types of processing to which the GDPR does not apply (see Chapter 3). (4) Part 3 makes provision about the processing of personal data by competent authorities for law enforcement purposes and implements the Law Enforcement Directive. (5) Part 4 makes provision about the processing of personal data by the intelligence services. (6) Part 5 makes provision about the Information Commissioner. (7) Part 6 makes provision about the enforcement of the data protection legislation.
Stay up to data: four key tips on using personal data for marketing. CAP News. 26 Jan 2023
The DMA Code of Practice is here: https://dma.org.uk/the-dma-code
ONLINE BEHAVIOURAL ADVERTISING (OBA)
CJEU Rules on Targeted Advertising in Schrems v Meta
Lewis Silkin/ Lex November 11, 2024
Privacy rules for targeted advertising in the UK and EU. Reed Smith/ Lex August 2023
Effective 19 January 2022 (er, see above re CJEU case)
Section 10 of the CAP Code provides specific OBA rules; extracts for this context are:
At the time of collecting consumers’ personal data from them, marketers must provide consumers with the following information (in, for example, a privacy notice), unless the consumer already has it:
A good number of companies & organisations in Europe are supporters of and engaged in the European self-regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance (EDAA http://www.edaa.eu). The OBA icon,
which can be found on digital advertising and on web pages to signal that OBA is on those sites, is licensed to participating companies by the EDAA. From the icon, the consumer is provided with a link to http://www.youronlinechoices.eu/, which has information on how data is used, a means to ‘turn off’ data collection and use, and a portal to connect with national self-regulatory organisations for complaint handling
Consent or pay: one rule for some (large online platforms),
another rule for everyone else? Weil Gotshal & Manges 30/8/24
A new path for Privacy Sandbox on the web July 22, 2024
Third party cookie plans for Chrome. WFA view here
Meta’s Ad-Free Subscription Violates Competition Law
Adam Satariano NYT July 1, 2024
EDPB Opinion 8/2024 on Pay or Consent April 17. Lexia May 8
Applicable legislation, self-regulation and guidance
Note that legislation is implemented in member states, sometimes with nuance
European Commission Data Protection website:
https://ec.europa.eu/info/law/law-topic/data-protection_en
IAB Europe published in May 2020 the Guide to the Post Third-Party Cookie Era
And in July 2021 the Guide to Contextual Advertising
Commission's 'Cookie Pledge' pages here; includes draft pledging principles and December 2023 EDPB opinion on compliance with e-Privacy Directive and GDPR
As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
Directive on privacy and electronic communications 2002/58/EC as amended by Directive 2009/136/EC
GDPR
Meta must limit data for personalised ads
BBC October 4, 2024. Hunton Oct 15
EDAA launches new solution to DSA ad transparency requirements
EDPB ban on Meta processing personal data for behavioural advertising
DAC Beachcroft/ Lex December 6, 2023. EDPB here
Privacy Challenges For Digital Advertising, Particularly In Europe
Squire Patton Boggs 22 November, 2023
Applicable regulation and opinion
Article 29 Working Party* documents
*As of 25 May 2018 the Article 29 Working Party ceased to exist and has been replaced by the European Data Protection Board (EDPB). Article 29 WP documents remain valid
Privacy issues should be reviewed with specialist advisors
A round-up of DM fines issued by the ICO In 2024
Lewis Silkin June 4, 2024
ICO fines HelloFresh £140k. RPC/Lex April 17, 2024
On July 5, 2023, the ICO issued video guides for small organisations; includes soft opt-in
CONTEXT FOR THIS CHANNEL
LEGISLATION AND GUIDANCE
OTHER LEGISLATION
The rules outlined below will apply to any electronically stored messages, including email, text, picture, video, voicemail, answerphone (ICO Guide to PECR). ‘Electronic mail’ means any text, voice, sound or image message sent over a public electronic communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient and includes messages sent using a short message service (Art 2 (1) PECR)
(a) That person has obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient
(b) The direct marketing is in respect of that person’s similar products and services only; and
(c) The recipient has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of his contact details for the purposes of such direct marketing, at the time that the details were initially collected, and, where he did not initially refuse the use of the details, at the time of each subsequent communication
E-COMMERCE INFORMATION
From The Electronic Commerce (EC Directive) Regulations 2002, transposed from Directive 2000/31/EC, the electronic commerce directive
(a) Be clearly identifiable as a commercial communication
(b) Clearly identify the person on whose behalf the commercial communication is made
(c) Clearly identify as such any promotional offer (including any discount, premium or gift) and ensure that any conditions which must be met to qualify for it are easily accessible, and presented clearly and unambiguously; and
(d) Clearly identify as such any promotional competition or game and ensure that any conditions for participation are easily accessible and presented clearly and unambiguously.
(Art. 7 ECR)
CONSENT
INDUSTRY CODES
B2B
SMS / MMS
SMS and MMS are defined as electronic mail (Art 2 (1) PECR and CAP Code S.10). The principles above will apply to direct marketing sent by SMS and MMS
5.3 The Regulations do not prescribe how the requirement to make information “easily, directly and permanently accessible” should be met. The Government recognises that technological constraints (e.g. the 160-character limit on mobile text messages) mean that the information may not readily be accessible by the same means by which the service provider transacts with recipients of his services. The Government envisages, however, that these criteria should be capable of being met if the information is accessible by other means (e.g. inclusion on a website)
Direct Marketing of Goods and Services in EU
ICLG April 2024. Clear and informative and (EN)
2024 GDMA International email benchmark
Posted June 2024
Directive 2002/58/EC; Article 13
Unsolicited communications
* Repealed; GDPR applies
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
The same principle that applies in paid space also applies in non-paid space such as marketers’ own websites and SNS spaces: if communications from the owner are within the CAP Code scope for own websites, then they are subject to the rules. In December 2014 CAP published an Online Remit Update which covers in depth the criteria that the ASA Council apply when deciding whether communication on an owned website falls within remit.
All marketing communications will also be subject to the terms and conditions of the social network site itself
Privacy issues should be reviewed with specialist advisors
A. Remit: Advergames. September 2016
B. Remit: social media February 2020
This is important advice relating to various forms of communication in social media iuncluding Paid-for ads, Influencer marketing, Own social media and User-generated content. It’s spelt out more fully under the General tab below as it’s not child-specific; otherwise, see the linked file
C. Brand ambassadors and Children in peer-to-peer marketing. April 2013
D. Influencer's Guide to making clear that ads are ads. February 2020
This guidance is not child-specific, but it's nevertheless important. More under the General tab below
CONTEXT
The same principle that applies in paid space also applies in non-paid space such as marketers’ own websites and SNS spaces: if communications from the owner meet the definition of ‘advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that are directly connected with the supply or transfer of goods, services, opportunities and gifts, or which consist of direct solicitations of donations as part of their own fund-raising activities’, then they are subject to the rules. The full CAP remit extension online is here, and see also September 2016 Guidance on Remit: Own websites. The remit extends to marketers’ Social Network Sites, which are seen in this context in the same light as marketers’ own websites. The key issue is the identification of a marketing communication.
CORE RULES
RULINGS RELATED TO UGC
VLOGGING GUIDANCE AND RULINGS
Own Social Media
Extracts from the linked Remit document from CAP September 2016 below:
RELEVANT RULINGS
WHG (International) Ltd t/a WillHillBet, 17 June 2015
Hillside (UK Sports) LP t/a Bet365, 28 October 2015
THE LAW RELATED TO IDENTIFICATION/ AVMS
SOME EDPB GUIDANCE
The same principle that applies in paid space also applies in non-paid such as marketers’ own websites and SNS spaces: if the communication from the owner is advertising, it’s ‘in remit’, i.e. covered by the rules. Clearly, much of a brand website may not be advertising, but it's important to understand what may 'qualify', and different countries have different definitions. In this international context the most relevant definition is from the ICC Code: ‘any communications produced directly by or on behalf of marketers intended primarily to promote products or to influence consumer behaviour’. The other aspect of this environment that can be subject to regulatory issues is that of 'dialogue' between brand owners and consumers, where Consent and Information requirements may apply; see our General rules sector for specifics
ICC Advertising and Marketing Communications Code (EN 2024); Chapter C Direct Marketing and Digital Marketing Communications
Directive 2002/58/EC on privacy and electronic communications
Directive 2000/31/EC on electronic commerce
Directive 2005/29/EC on unfair commercial practices (UCPD)
Directive 2018/1808 amending AVMS Directive 2010/13/EU (AVMSD)
EASA Best Practice Recommendation on Digital Marketing Communications 2023
Directive 2002/58/EC on Privacy and Electronic communications; Article 13
Unsolicited communications
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material
Extends rules across online platforms (provided that the service qualifies as an audiovisual media service or video sharing platform); the key amends to the Directive's content rules are assembled here
For video sharing platforms, articles 28a and 28b in the Directive linked above apply. We recommend perusal. From a commercial communications perspective, the key new ingredients are that article 9 of the AVMSD applies (found here) and that video-sharing platform providers 'clearly inform users where programmes and user-generated videos contain audiovisual commercial communications' - where they are aware of those - and provide a facility for those uploading also to declare the presence of commercial commnications
EU Guidance/ opinion documents
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe’s How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of native ads, some good practice recommendations, and a summary of EU rules. General rules, i.e. those that apply to all product sectors and audiences, are shown under the General tab below
Prominent | The disclosure should be within or directly next to the marketing communication and of significant size and colour to make it stand out |
Interruptive |
and The disclosure should be readily apparent to the child, ideally, if the medium permits it, before engagement with the communication. If limited by time and/or space, the disclosure should appear as the communication is activated |
Sufficient to identify the marketer and the commercial intent |
The disclosure should identify the marketer, if that is not otherwise clear, and adequately indicate the commercial intent |
From an ASA Opinion piece Jan 2016, native advertising is ‘content paid for and controlled by brands, but which looks like news, features, reviews, entertainment and other content that surrounds it online.’ So this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience
This is a sensitive and topical issue, with a number of high profile recent adjudications, shown below. The core issue is that of recognition of advertising, set out under the linked CAP Code Section 2; the BCAP equivalent is here. CAP/ the ASA are particular on the way in which advertising is identified as such: ‘Some examples of labels that are likely to be acceptable are: ‘Advertisement Promotion’, ‘Advertisement Feature’ or, in some online media, ‘#ad’.’ The law in the form of The Consumer Protection from Unfair Trading Regulations 2008 (CPRs), also prohibits under Schedule I, article 11, that a trader has paid for a promotion without making that clear
Recognising ads: Contextually targeted branded content
From the above (click on the links below for explanations of each issue):
Ensure advertorials are distinguishable from editorial content
Do not integrate to such an extent that it is no longer identifiable as an ad
Be wary of terms such as “sponsorship” and “in association with
From the above (point 3.) Identification of marketing communications
2.4 ‘Marketers and publishers must make clear that advertorials are marketing communications, for example by heading them "advertisement feature".
Advertisement features often mirror the format, style and typography of editorial articles contained in the same publication. It is particularly important, therefore, that readers can see at once that what they are looking at is not editorial but an advertisement feature. It could be clear through the context that the material is advertising but, if it isn’t, a label which makes clear the content is a marketing communication is likely to be required. Some examples of labels that are likely to be acceptable are: ‘Advertisement Promotion’, ‘Advertisement Feature’ or, in some online media, ‘#ad’
3.1 Marketing communications must not materially mislead or be likely to do so
3.6 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims
3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation
The Consumer Protection from Unfair Trading Regulations 2008 (CPRs), derived from the Unfair Commercial Practices Directive 2005/29/EC, provides in Schedule 1 that a commercial practice ‘in all circumstances considered unfair’ is:
Also known as sponsored or branded content, this is online and offline advertising designed to fit in with its ‘habitat’, to give consumers a visually consistent experience. IAB Europe's How to Comply with EU Rules Applicable to Online Native Advertising provides some categories of native ads, some good practice recommendations, and a summary of EU rules. General rules, i.e. those that apply to all product sectors, are immediately below
ICC Advertising and Marketing Communications Code (EN 2024)
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
IAB Europe Guidance (as above in intro): How to Comply with EU Rules Applicable to Online Native Advertising (December 2016) here
And in December 2021 IAB Europe's Guide to Native Advertising provides 'up-to-date insight into native ad formats and best practices for buyers.'
Identification and transparency (Art. 7)
Identity of the marketer (Art. 8)
Unfair Commercial Practices Directive 2005/29/EC, Annex I
Commercial practices which are in all circumstances considered unfair
11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC
22. Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer
Following feedback, we no longer cover Telemarketing
Following feedback, we no longer cover Telemarketing
Following feedback, we no longer cover Telemarketing
Privacy issues should be reviewed with specialist advisors
The Article 29 Working Party was established under Article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board; the guidelines below remain applicable and definitive. See Section 7.1 for Child-specific consent guidelines
Guidelines on consent under Regulation 2016/679
If any processing of data includes personal data (that which can identify an individual) than it may be subject to the GDPR, recognised and supplemented in the UK by the Data Protection Act 2018. Valuable guidance is provided by the ICO’s Guide to the GDPR. The ICO’s Direct Marketing Guidance, updated for GDPR, covers Marketing Mail under paras 154 -157. Content of Direct Mail marketing communications is subject to CAP Code rules; content-related legislation applies to all media, except that which identifies broadcast channels
Privacy issues should be reviewed with specialist advisors
Extracts only
And the right to object
Applicable self-regulation and legislation
As Direct Mail will frequently include offers, when trhat's the case the provisions related to 'Invitations to Purchase' in the Unfair Commercial Practices Directive may apply. Extracts are:
4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context:
5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material
Guidelines on consent under Regulation 2016/679 (May 2020)
.................................................................
PRIME sued by US Olympic committee
Lewis Silkin July 22, 2024
Sporting events: IP risks and considerations
Walker Morris/ Lex June 25, 2024
Ambush marketing: the European summer of sport
Taylor Wessing May 16, 2024
Olympics 2024 and the Ad Rules. CAP News 09 May 2024
GUIDE: The Olympic Games 2024 - Beating around le ambush
Lewis Silkin 25 January, 2024. Event recording April 8 here
Pilot Project Relaxes Olympic Games' Rule For Participating Brands
Marks & Clerk July 19, 2024
Paris Olympics & Paralympics - Part 2: What could possibly go wrong?
Squire Patton Boggs july 16, 2024
GUIDE: The Olympic Games 2024 - Beating around le ambush
Lewis Silkin 25 January, 2024
B1: Principles governing sponsorship
B2: Autonomy and self-determination
B3: Imitation and confusion
B4: 'Ambushing' of sponsored properties
B5: Respect for the sponsorship property and the sponsor
B6: The sponsorship audience
B7: Data capture/ data sharing
B8: Artistic and historical objects
B9: Social and environmental sponsorship
B10: Charities and humanitarian sponsorship
B11: Multiple sponsorship
This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and advice and consumer protection legislation, for example, are checked for any provisions that affect SP and included below. In the case of the U.K., promotional marketing rules are anyway included in the self-regulatory codes. The CAP Code, specifically Section 8, applies to promotional marketing wherever these promotions appear – see this Advice Online entry: https://www.asa.org.uk/advice-online/promotional-marketing-general.html
Promotional campaigns, especially those to children, can be fraught with difficulties. Plans should be reviewed with specialist advisors
Children: Promotional marketing. Advice online. 11 Apr 2022
Key extracts; see the full linked advice
Marketers should ensure that promotional items are suitable for the audience addressed but marcoms featuring promotions to children have to be handled especially carefully and with a due sense of responsibility;
Promotions addressed to or targeted directly at children:
Following a consultation on the advertising of food and soft drinks to children, new rules relating to HFSS product advertising came into effect on 1 July 2017 (rules 15.14, 15.15 and 15.18). As a result, HFSS product advertisements are subject to media placement restrictions and HFSS ads directed at under-12s through their content are not permitted to include promotions or celebrities and licensed characters popular with children. Rules are shown in full in our Food and Soft Drinks sector available from the home page of this website. In the meantime, there’s an overview from CAP here
From CPRs Schedule 1: 28. Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them
Avoid your ads taking a turn for the worst this Black Friday
CAP News October 24, 2024
Nasty Gal ruling Sept 11, 2024. LS here
Look at this! Top tips for advertising promotions
CAP News August 22, 2024
Debenhams up to 60% off. ASA ruling July 31, 2024
Digital, Commerce & Creative 101: Running prize promotions
Lewis Silkin/ Lex June 18, 2024
Not a pretty promotion. ASA ruling May 16, 2024
March 2024 RRP pricing guidance here and here from CAP
‘Free’ claims – Are you free to say what you like?
CAP News April 25, 2024
Premier Inn ruling. Prices 'from;' May 1, 2024
This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation, for example, are checked for any provisions that affect SP and included below. In the case of the U.K., promotional marketing rules are anyway included in the self-regulatory codes. The CAP Code, specifically Section 8, applies to promotional marketing wherever these promotions appear; see this Advice Online entry: https://www.asa.org.uk/advice-online/promotional-marketing-general.html
From section 8: promoters should take legal advice before embarking on promotions with prizes, including competitions, prize draws, instant-win offers and premium promotions, to ensure that the mechanisms involved do not make them unlawful lotteries (see the Gambling Act 2005 for Great Britain and the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985 (as amended) for Northern Ireland). Section 14 of the Gambling Act explains skill and chance parameters. Broadly, promotional schemes (from manufacturers) requiring a purchase to take part, and offering prizes only on the basis of random chance are considered a lottery and are generally illegal
Promotional marketing: General. April 2019; this guidance gives a brief summary of the key points and where to get more information. Extracts are below (click on the links for more information)
Don’t pay the price for your “Free Trials” advertising. CAP News 14 September, 2023
Pricing and charges: 'Helpful information on the advertising rules more for the pricing of products and services and additional charges, not including legally required costs such as taxes or VAT'
Make sure the price is right: using reference pricing in ads. CAP News 22 June, 2023
It’s the final countdown… but is it really? CAP News 20 Apr 2023 re 'countdown clocks'
Back in Black Friday – Getting your promotional offers in line. CAP News 20 Oct 2022
Promotional marketing: Prize winners Advice online 26 October 2021
Running prize promotions on social media Resource page/ checklist issued Oct 2021
Six ways to win at Promotional Marketing CAP News 11 July 2019
Guidance on ‘free trial’ or other promotional offer subscription models Advertising guidance Nov 2017
Promotional Marketing for the Win CAP News 15 Aug 2018
Promotional marketing: Competitions Advice online 7 February, 2023
Promotional marketing: prize draws Advice online 24 Sep 2021
Keep your “free” claims problem-free. CAP News 30 Sep 2021
Keeping your “Free Trials” trial free CAP News 19 May 2022
Running chance-based prize promotions in Northern Ireland? CAP News 23 June, 2022. Last month, changes to Northern Ireland (NI) gambling law by the Betting, Gaming, Lotteries and Amusements (Amendment) Act (Northern Ireland) 2022 came into force. These important changes affect promoters running NI or UK-wide chance-based promotions.
There are some statutory requirements, largely reflected in self-regulation but not necessarily in this promotional marketing context, that apply. These are to do with pricing and with invitation to purchase, both from the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). The enforcer of the CPRs is the Competition and Markets Authority (CMA), 'the UK’s principal competition and
consumer protection authority.' In March 2023, the CMA published Using urgency and price reduction claims online
From Schedule I: Commercial practices which are in all circumstances considered unfair
(a) refusing to show the advertised item to consumers,
(b) refusing to take orders for it or deliver it within a reasonable time, or
(c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch)
(a) there is no prize or other equivalent benefit, or
(b) taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost
Rules have been shown in a number of places in this database, and are summarised here:
http://www.g-regs.com/downloads/UKInv2Purchase.pdf
This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation, for example, are checked for any provisions that affect SP and included below. Content in SP material is likely to be subject to the rules set out in the earlier section B as well as more specific requirements related to pricing, promotional conditions etc. .
ICC Advertising and Marketing Communications Code (EN 2024), Chapter A Sales Promotion, Chapter C Direct Marketing
For promotions and contests on social media, refer to Own Websites channel; SNS
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Directive 98/6/EC on the Prices of Products offered to Consumers
ICC Code Chapter A Sales Promotion
Clauses are from the 2024 edition of the Code
A1: Principles governing sales promotions
A2: Transparency and terms of the offer
Sales promotions should be transparent. This means that the terms of the offer should be easily identifiable, accessible and straightforward for the consumer, inclusive of any restrictions and limitations. Measures should be taken to avoid exaggerating the value of any promotional item or obscuring or minimising the price of the main product.
A3: Presentation
Sales promotions should not be designed or presented in a manner that is likely to be misleading about value, nature or participation process.
A4: Administration of promotions
Sales promotions should be administered using appropriate resources and supervision and should incorporate proper safeguards to ensure that the offer’s administration aligns with the reasonable expectations of consumers. In particular:
A5: Safety and suitability
A6: Presentation to consumers
Sales promotions should be presented so that consumers are informed beforehand of any conditions likely to influence their decision to purchase. Consumers should be able to easily access the terms and other essential information, in particular when accepting the offer. Information should include, where relevant and having regard to the medium used:
Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign. Consumers should be informed, before purchasing the promoted product, how much of the price will be allocated for the cause or the total donation amount.
Free entry claims should be used only if the consumer’s path to access is charged at a standard rate, meaning the consumer will not incur any communication cost beyond the maximum of that rate. If a premium rate is applied, this should be clearly disclosed.
Where a sales promotion includes a prize promotion, the following information should be given to consumers, and be available prior to participation and not conditional on purchasing the main product:
The remaining articles of this chapter, A7 to A10 inclusive, are not included for reasons of space. They can be found in the 2024 ICC Code here. These cover:
A7. Presentation to Intermediaries
A8. Particular Obligations of Promoters
A9. Particular Obligations of Intermediaries
A10. Responsibility
As promotional activity will often include e.g. special pricing measures, we have extracted from the Unfair Commercial Practices Directive 2005/29/EC those clauses from Annex I (practices which are in all circumstances considered unfair) most relevant to promotional scenarios
5. Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising)
6. Making an invitation to purchase products at a specified price and then:
(a) refusing to show the advertised item to consumers; or
(b) refusing to take orders for it or deliver it within a reasonable time or
(c) demonstrating a defective sample of it, with the intention of promoting a different product (bait and switch)
7. Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice
15. Claiming that the trader is about to cease trading or move premises when he is not
16. Claiming that products are able to facilitate winning in games of chance
19. Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent
20. Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item
31. Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either:
there is no prize or other equivalent benefit, or
taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost
Article 1
The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices
Article 2
For the purposes of this Directive:
(a) selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes;
(b) unit price shall mean the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product or a different single unit of quantity which is widely and customarily used in the Member State concerned in the marketing of specific products
(c) products sold in bulk shall mean products which are not pre-packaged and are measured in the presence of the consumer
(d) trader shall mean any natural or legal person who sells or offers for sale products which fall within his commercial or professional activity
(e) consumer shall mean any natural person who buys a product for purposes that do not fall within the sphere of his commercial or professional activity
Article 3
— products supplied in the course of the provision of a service
— sales by auction and sales of works of art and antiques
Article 4
Where national or Community provisions require the indication of the net weight and the net drained weight for certain pre-packed products, it shall be sufficient to indicate the unit price of the net drained weight
Article 5
Article 6a
1. Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction
2. The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction
3. Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly
4. Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2
5. Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction
The Copy Advice service provided by the Committee of Advertising Practice (CAP) primarily advises advertisers, agencies and media owners on their own advertising. Advice is non-binding, apart from in exceptional circumstances where pre-clearance is imposed as a sanction by the ASA. Copy Advice is free-of-charge and confidential, and queries are usually answered within 24 hours. Contact https://www.asa.org.uk/advice-and-resources/training-and-events.html and +44 (0) 20 7492 2100. An Express 4-hour service is also offered (£300 inc VAT)
CAP also offers, at a fee, full Website Audits:
https://www.asa.org.uk/advice-and-resources/website-audit-information.html
As well as online eLearning courses on various subjects:
https://www.asa.org.uk/advice-and-resources/cap-elearning.html
Overview here:
https://www.youtube.com/watch?v=4KW_CxOSmf8&feature=youtu.be
Broadcast advertisements are pre-cleared through Clearcast (for television, in script and film form http://www.clearcast.co.uk) and the Radio Centre (in script form only for radio - http://www.radiocentre.org/). These two bodies were set up by broadcasters to fulfil their statutory duty to ensure that the advertisements they broadcast comply with the Advertising Codes. However, pre-clearance does not prevent the ASA from investigating and upholding complaints against broadcast advertisements
Clearcast pre-clearance 5-10 working days on scripts, 3-5 rough-cuts, 48 working hours final TV/VOD
ROI some broadcasters self-regulate RTE & TV3 and they work on scripts to final concepts. RTE only meet on Tuesdays and Thursdays and production materials should be supplied the day before
UK/ ROI Cinema final edits must be uploaded to the CAA (this is the sole regulatory body for Cinema clearance, absorbing the responsibilities previously held by the BBFC). Any commercial of public interest such as charities, Government commercials, banking sector etc. will need also to be submitted to the BBFC and display the classification on final airing edit (incurs fees)
Clearcast is improving the Ad Clearance Process
In 2022 there will be a change to the ad clearance process which will affect where agencies and advertisers upload their final clocked ad and its associated metadata. This change will be managed by a new system, The Clearcast Library.
The Clearcast Library is a centralised collection of final clocked, broadcast-quality TV and VOD ads that feeds into The Clearcast CopyCentral system for final clearance. It’s a fully cloud-based platform that can be accessed across all devices and has been designed to make the process of getting ads to air simpler and faster. The Library also ensures that the ad cleared can be verified as the ad to be aired and keeps a record of all cleared ads for future reference. Read more here. |
For help, contact the Traffic Bureau administration@trafficbureau.net
The ICAS Global SRO database
https://icas.global/srodatabase/
EASA (European Advertising Standards Alliance)
https://www.easa-alliance.org/
EASA membership
https://www.easa-alliance.org/members/
Link to Best Practice Recommendations
https://www.easa-alliance.org/publication/best-practice-recommendations/
EASA Digital Marketing Communications Best Practice Recommendation
EASA Best Practice Recommendation on Online Behavioural Advertising
https://www.easa-alliance.org/publications/easa-best-practice-recommendation-on-oba-2021/
EASA Best Practice Recommendation on Influencer Marketing
European legislation
GDPR
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force May 25 2018.
http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679&from=en
Articles relating to Children are Nos. 8 and 12, and Recitals 38 and 58. These have been assembled here:
https://www.g-regs.com/downloads/CHEUGDPRrefs.pdf
European Data Protection Authority
Article 29 Working Party/ EDPB
The Article 29 Working Party was established under Article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:
All documents from the former Article 29 Working Party remain available on this newsroom.
Article 29 Working Party archives from 1997 to November 2016:
http://ec.europa.eu/justice/article-29/documentation/index_en.htm.
EU Framework of law for children’s rights:
http://www.europarl.europa.eu/RegData/etudes/note/join/2012/462445/IPOL-LIBE_NT(2012)462445_EN.pdf
UN Convention on the Rights of the Child
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CRC.aspx
Art 161. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation
UCPD
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 The ‘Unfair Commercial Practices Directive’, known as the UCPD. This is the core consumer protection legislation from the EU, transposed in all member states, and in France placed in the Consumer Code (see entry below). Provisions address misleading commercial practices and include a number on commercial communications. Key is Annex I which lists a number of practices that are “in all circumstances considered unfair.” No. 28 prohibits in advertising a direct exhortation to children to buy advertised products or persuade their parents or other adults to do so for them:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:149:0022:0039:en:PDF
AVMSD
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive). Article 9: audiovisual commercial communications shall not cause physical or moral detriment to minors. Therefore they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations. Transposed in the Ofcom Broadcasting Code, Appendix 2
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32010L0013
AVMSD amendment
Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.
https://eur-lex.europa.eu/eli/dir/2018/1808/oj
Data protection
Data Protection Act 2018. From the overview of the act: 1. The Data Protection Act 2018 implements a commitment in the 2017 Conservative Party manifesto to repeal and replace the UK’s existing data protection laws to keep them up to date for the digital age in which ever increasing amounts of personal data are being processed. It sets new standards for protecting personal data, in accordance with recent EU data protection laws, giving people more control over use of their data. The Act also helps prepare the UK for a future outside the EU. 2. The four main matters provided for in the Act are general data processing, law enforcement data processing, data processing by the intelligence services and regulatory oversight and enforcement. Article 9 of Chapter 2 establishes the age at which a child can provide consent in relation to information society services as at least 13.
http://www.legislation.gov.uk/ukpga/2018/12/contents/enacted
PECR
Privacy and Electronic Communications (EC Directive) Regulations 2003. Entry into force 11/12/2003. These Regulations implement Articles 2, 4, 5 (3), 6 to 13, 15 and 16 of Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector (E-Privacy Directive). Official text (not consolidated):
http://www.legislation.gov.uk/uksi/2003/2426/made
Consolidated version of key clauses here:
http://www.g-regs.com/downloads/UKPECR2003.pdf
Regulatory authority
Information Commissioner’s Office (ICO)
Guide to the General Data Protection Regulation (GDPR):
Guide to Privacy and Electronic Communications Regulations:
https://ico.org.uk/for-organisations/guide-to-pecr/
Social networking and online forum guidance:
Personal Information Online Code of Practice (Includes references to children’s information pps.14/5):
https://ico.org.uk/media/for-organisations/documents/1591/personal_information_online_cop.pdf
Guide to children’s data protection:
ico.org.uk/for-organisations/guide-to-data-protection/key-data-protection-themes/children/
In January 2020, the iCO launched Age Appropriate Design: a code of practice for online services. The code is ‘a set of 15 flexible standards that provides built-in protection to allow children to explore, learn and play online by ensuring that the best interests of the child are the primary consideration when designing and developing online services.’
Consumer protection
The Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277). Entry into force 26/05/2008. These regulations, the ‘CPRs’, implement Directive 2005/29/EC concerning unfair business-to-consumer commercial practices (UCP Directive). Part 1.2 Interpretation includes: ‘In determining the effect of a commercial practice on the average consumer - (a) where a clearly identifiable group of consumers is particularly vulnerable to the practice or the underlying product because of their mental or physical infirmity, age or credulity (emphasis ours) in a way which the trader could reasonably be expected to foresee, and (b) where the practice is likely to materially distort the economic behaviour only of that group. Schedule 1 carries the UCPD ‘blacklist’ incorporating ‘exhortation’: 28. Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them.
http://www.legislation.gov.uk/uksi/2008/1277/contents/made
E-commerce
The Electronic Commerce (EC Directive) Regulations 2002; these regulations impose information obligations on those providing an information society service. They implement the E-Commerce Directive 2000/31/EC, specifically Articles 3, 5, 6, 7 (1), 10 to 14, 18 (2) and 20 of the Directive. Relevant regulations 6,7,8 require inter alia that a service provider shall ensure that: any commercial communication provided by him and which constitutes or forms part of an information society service shall be clearly identifiable as a commercial communication, clearly identify the person on whose behalf the commercial communication is made, clearly identify as such any promotional offer (including any discount, premium or gift) and ensure that any conditions which must be met to qualify for it are easily accessible, and presented clearly and unambiguously; and clearly identify as such any promotional competition or game and ensure that any conditions for participation are easily accessible and presented clearly and unambiguously. Consolidated text:
http://www.legislation.gov.uk/uksi/2002/2013/regulation/7/made
Channel legislation/ regulation
Ofcom Broadcasting Code. Ofcom is ‘the regulator for the communications services that we use and rely on each day,’ operating under the Communications Act 2003 (see General rules). Section nine of the Code provides regulations on product placement (prohibited for children’s programmes) and sponsorship. Appendix 2, article 9 covers the extracts from the AVMS Directive relevant to children: (g) audiovisual commercial communications shall not cause physical or moral detriment to minors. Therefore they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations.
https://www.ofcom.org.uk/__data/assets/pdf_file/0016/132073/Broadcast-Code-Full.pdf
Industry codes
CAP Code (2010). The UK Code of Non-broadcast Advertising, Promotional Marketing & Direct Marketing. This mandatory Code applies to non-broadcast advertising in media including print, posters, cinema, video and DVDs, mobile phones (SMS and MMS), VOD, Internet including brand websites, e-mails, andpromotional marketing. Rules for children’s marcoms are primarily contained in Section 5. The Code implements certain provisions of EU law and national legislation derived from these; for example, the Unfair Commercial Practices Directive 2005/29/EC and the Consumer Protection from Unfair Trading Regulations 2008 (CPRs):
https://www.cap.org.uk/Advertising-Codes/Non-Broadcast.aspx
BCAP Code (2010). The UK Code of Broadcast Advertising. This mandatory Code applies to broadcast (TV and Radio) commercials, and teleshopping. Rules for marcoms aimed at children are in Section 5. The full Code is linked below
https://www.asa.org.uk/codes-and-rulings/advertising-codes/broadcast-code.html
CAP Advice and guidance
(non-exhaustive)
Database search link here
Do you copy? Some tips on avoiding harmful emulation in ads. CAP News, 7 April 2022
Children: General. Advice online. 17 Jul 2018
https://www.asa.org.uk/advice-online/children-general.html
CAP’s rules on Use of data for marketing (there’s a section on children):
https://www.asa.org.uk/type/non_broadcast/code_section/10.html
Children's Recognition of Online Ads. CAP News 23 June 2022
Recognition of advertising: online marketing to children under 12; CAP guidance from 28 April 2017. ‘This guidance focuses on situations where online marketing communications directed at under-12s are likely to require “enhanced” disclosure to ensure recognition. The download is here:
Making online marketing communications to children clearly identifiable: February 2015. ‘We are advising marketers to ensure they make clear when online content is marketing material. A basic principle of the CAP Code is that marketing communications “must be obviously identifiable as such” (rule 2.1)’
CAP’s Help Note on Food and Soft Drink advertisements and Children:
Above link appears to be bust; try this
Children and HFSS ads. Three lessons from 2019 (CAP News Dec 2019)
https://www.asa.org.uk/news/children-and-hfss-ads-three-lessons-from-2019.html
CAP News February 2021:
‘Punch-out any issues with your video game advertising’.
Children: Promotional marketing. Advice online. 11 Apr 2022
https://www.asa.org.uk/advice-online/children-promotional-marketing.html
Fear and Distress:
https://www.asa.org.uk/advice-online/fear-and-distress.html
Influencers’ Guide to making clear that ads are ads:
https://www.asa.org.uk/resource/influencers-guide.html
Age-restricted ads online. Non-broadcast advertising guidance. January 2021
DMA
DM Code of Practice of the UK Direct Marketing Association:
http://dma.org.uk/content/dm-code-practice
The International Federation ICTI, International Council of Toy Industries, publish “Guiding Principles for Advertising & Marketing Communication to Children”. Below are those ‘rules’ that do not duplicate existing requirements from authorities:
TIE: Toy Industries of Europe
From their website: “TIE is the trade association for the European toy industry. TIE provides a unique source of information both for and on the toy industry in Europe. Founded in 1991, TIE has been working at the heart of Europe for more than two decades. At present, membership includes fourteen direct member companies and most national toy associations, representing approximately 80% of European toy sales. With over €16 billion in annual sales in Europe, the toy industry is robust, fast-paced and highly competitive. It is also one of the most dynamic business sectors in Europe with 60% of toys representing new products on the market each year.”
Their self-regulatory code of November 2016 is here :
https://www.toyindustries.eu/wp-content/uploads/2016/11/TIE-Commitment-to-Responsible-M2K-NOV-16.pdf
PAN EUROPEAN GAME INFORMATION (PEGI)
Code of conduct for the European interactive software industry regarding age rating labelling, promotion and advertising of Interactive software products and maintenance of safe online gameplay. Article 11 covers Advertising and Promotion
https://pegi.info/pegi-code-of-conduct
ICC
ICC International Chamber of Commerce
2018 ICC Advertising and Marketing Communications Code. See articles 18 and 19.4 under General Principles section for children’s rules, and Chapter C Direct Marketing and Digital Marketing Communications, article C7
Codes immediately below are more relevant to Children
‘ICC’s rich history of support for freedom of commercial communications, responsible marketing communications, and guidance on responsible marketing to children and teens is reflected a variety of useful reference documents. This toolkit incorporates relevant ICC materials demonstrating the global advertising industry’s commitment to strong, effective self-regulation of marketing and advertising communications to strengthen confidence in markets and help power economic growth’:
‘The International Chamber of Commerce (ICC) has issued a Statement on Code Interpretation to clarify the age of “children” (12 and younger) and the age of “young people,” also referred to here by the more common terms “teenagers” or “teens,” for purposes of the ICC Code. This reference guide reflects the almost 100 years of child development research and sources supporting that interpretation.’
GDPR
Regulation (EU) 2016/679 Of The European Parliament and of The Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). The GDPR came into force May 25 2018. The GDPR is accompanied by Directive 2016/680, which is largely concerned with supervising procedures, and which should have been transposed into member states’ legislation by 6th May 2018.
https://eur-lex.europa.eu/eli/reg/2016/679/oj
Withdrawal of the United Kingdom from the Union and EU rules in the field of data protection:
https://ec.europa.eu/newsroom/just/items/611943
European Data Protection Authority
Article 29 Working Party/ EDPB
The Article 29 Working Party was established under article 29 (hence the name) of Directive 95/46/EC, the Personal Data Protection Directive. The arrival of the GDPR heralded the demise/ re-working of A29WP, and its replacement by the European Data Protection Board:
All documents from the former Article 29 Working Party remain available on this newsroom.
Article 29 Working Party archives from 1997 to November 2016:
http://ec.europa.eu/justice/article-29/documentation/index_en.htm.
Four more recent and significant documents:
Commercial practices: UCPD
Directive 2005/29/EC of The European Parliament and of The Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC and Regulation (EC) No 2006/2004 (the ‘Unfair Commercial Practices Directive’ UCPD). This is the legislation that most impacts marketing and advertising in Europe and whose origins form the foundations of Self-Regulatory regimes. The core provisions relate to unfair commercial practices, defined as ‘likely to materially distort the economic behaviour with regard to the product of the average consumer.’ In turn, unfair commercial practices are those that:
Annex I (known as ‘the blacklist’) contains the list of those commercial practices which ‘shall in all circumstances be regarded as unfair’. These are the only commercial practices which can be deemed to be unfair without a case-by-case test (i.e. assessing the likely impact of the practice on the average consumer's economic behaviour). The list includes e.g. encouragement to children to ‘pester’ (28), clear identification of commercial source in advertorial (11) and making ‘persistent and unwanted solicitations’ (26). The UCPD includes several provisions on promotional practices e.g. Article 6 (d) on the existence of a specific price advantage, Annex I point 5 on bait advertising, point 7 on special offers, points 19 and 31 on competitions and prize promotion, and point 20 on free offers. Some amendments to Directive 2005/29/EC are provided in Directive 2019/2161 linked below; these are supposed to be transposed by November 2021 and in force in member states by May 2022. The Directive 2019/2161 is not transposed in the U.K. but applies to goods and services within the EU so will affect retailers providing those to EU consumers.
https://eur-lex.europa.eu/eli/dir/2005/29/oj
EU guidance:
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52016SC0163
Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules. While this directive does not require very significant changes as far as most commercial communication is concerned, it does set out some important new changes to information requirements under the UCPD, to pricing information under Directive 2011/83/EU in the context of automated decision-making and profiling of consumer behavior and to price reduction information under Directive 98/6/EC. Directive 2019/2161 also includes important information requirements relating to e.g. search rankings and consumer reviews which do not directly impact this database. Provisions are supposed to be transposed by November 2021 and in force in member states by May 2022. The Directive 2019/2161 is not transposed in the U.K. but applies to goods and services within the EU so will affect retailers providing those to EU consumers.
https://eur-lex.europa.eu/eli/dir/2019/2161/oj
Pricing
Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers. The purpose of this Directive is to stipulate indication of the selling price and the price per unit of measurement of products offered by traders to consumers in order to improve consumer information and to facilitate comparison of prices (Article 1). For the purposes of this Directive, selling price shall mean the final price for a unit of the product, or a given quantity of the product, including VAT and all other taxes (Article 2a). While this legislation seems prima facie most suited to ‘goods on shelves’ as it requires unit prices (the final price, including VAT and all other taxes, for one kilogramme, one litre, one metre, one square metre or one cubic metre of the product), the Directive was used as the basis for a significant ECJ judgement on car pricing in advertising. Some amendments to Directive 98/6/EC related to price reduction information are provided in Directive 2019/2161 linked above; these are supposed to be transposed by November 2021 and in force in member states by May 2022. The Directive 2019/2161 is not transposed in the U.K. but applies to goods and services within the EU so will affect retailers providing those to EU consumers.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:31998L0006
Comparative advertising
Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising. Article 4 of the MCAD provides that comparative advertising is permitted when eight conditions are met. The most significant of those for our purposes are a) it is not misleading within the meaning of Articles 2 (b), 3 and 8 (1) of this Directive or articles 6 and 7 of Directive 2005/29/EC (see above) and b) it compares goods or services meeting the same needs or intended for the same purpose. There are other significant conditions related to denigration of trademarks and designation of origin, imitation and the creation of confusion. Codified version:
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32006L0114
Audiovisual media
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services: the Audiovisual Media Services Directive, or AVMSD. This is the codified version of the much-amended Directive 89/552/EEC and represents the core European broadcast legislation, providing significant structural and content rules, applied largely consistently across member states. From a marcoms perspective, the core articles are 9 (Discrimination, safety, the environment, minors and some prohibitions), 10 (Sponsorship), 11 (Product Placement) and 22 (Alcoholic beverages rules).
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32010L0013
AVMSD amendment
Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. The background to this significant development of the AVMSD is here. In broad terms, the Directive addresses the changes in media consumption in recent years and pays particular attention to the protection of minors in that context, extending rules to e.g. shared content on SNS. There are ‘strengthened provisions to protect children from inappropriate audiovisual commercial communications for foods high in fat, salt and sodium and sugars, including by encouraging codes of conduct at EU level, where necessary’. See article 4a. Rules for alcoholic beverages are extended to on-demand audiovisual media services, but those provisions (social/ sexual success etc.) are not amended. The Directive entered into force 18th December 2018; member states are required to have transposed into national law by 19th September 2020.
https://eur-lex.europa.eu/eli/dir/2018/1808/oj
E-privacy
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications, the ‘E-privacy Directive’). This Directive ‘provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector.’ The directive was amended by Directive 2009/136/EC; the ‘Cookie directive’, provisions found under article 5.3 of the E-Privacy Directive. Article 13 for Consent and ‘soft opt-in’ requirements
https://eur-lex.europa.eu/eli/dir/2002/58
The ‘Cookie Directive’ 2009/136/EC amending Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector. Article 2 provides amends to the E-privacy Directive above
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0136
E-privacy Regulation draft (4 November 2020)
Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications)
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CONSIL:ST_9931_2020_INIT&from=EN
Proposal for a Regulation of the European Parliament and of the Council concerning the respect for private life and the protection of personal data in electronic communications and repealing Directive 2002/58/EC (Regulation on Privacy and Electronic Communications):
https://data.consilium.europa.eu/doc/document/ST-6087-2021-INIT/en/pdf
Statement on the ePrivacy Regulation and the future role of Supervisory Authorities and the EDPB. Adopted on 19 November 2020:
https://edpb.europa.eu/sites/default/files/files/file1/edpb_statement_20201119_eprivacy_regulation_en.pdf
February 2022 Clifford Chance/ Lex E-Privacy check-in: where we are, and where we're headed
March 2022 Härting Rechtsanwälte/ Lex ePrivacy Regulation: EU Council agrees on the draft
E-commerce
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'). ‘information society services’ are defined as ‘any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.’ Article 5 covers general information such as contact details from the ‘service provider’, which information should be made ‘easily, directly and permanently accessible to the recipients of the service’. The Directive also sets out under article 6 more specific information requirements for commercial communications which are part of, or constitute, an information society service. These include identifiability requirements and accessibility to conditions for promotions.
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031
The Digital Services Act
Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065
The Digital Markets Act
Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online. Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here. Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.
https://eur-lex.europa.eu/eli/reg/2022/1925
Consumer protection
As indicated above under European legislation, a number of consumer protection measures introduced by Directive 2019/2161 (the Omnibus Directive) and due in force May 2022 are not transposed into the U.K. following exit from the E.U., though measures will apply to U.K. providers of goods and services in member states. The U.K. government's plans regarding consumer protection in this context are set out here courtesy of Travers Smith LLP / Lexology December 2021. Meanwhile, the legislation below remains in force.
The Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277); entry into force 26/05/2008. These regulations (known as CPRs) introduce a general prohibition on traders in all sectors engaging in unfair commercial (mainly marketing & selling) practices against consumers, implementing Directive 2005/29/EC of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices (the UCP Directive, the core European consumer protection legislation). Part 2 sets out the prohibition on unfair commercial practices, i.e. those that contravene the requirements of professional diligence, misleading actions, misleading omissions, aggressive commercial practices and commercial practices of the type specified in Schedule 1, which includes provisions related to pricing (5-7):
http://www.legislation.gov.uk/uksi/2008/1277/contents/made
Amended by the Consumer Protection from Unfair Trading (Amendment) Regulations 2014 (SI 2014/870); the amendment largely deals with enforcement issues and redress rights; marcoms requirements are not directly affected. Guidance on 2008 CPRs:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/284442/oft1008.pdf
Guidance on the 2014 CPRs:
Business protection
The Business Protection from Misleading Marketing Regulations 2008 (SI 2008/1276); entry into force 26/05/2008. These regulations (known as BPRs) prohibit misleading business-to-business advertising and set out the conditions under which comparative advertisements (which is any advertisement which identifies a competitor or a competitor’s product) are permitted, implementing Directive 2006/114/EC of the European Parliament and of the Council concerning misleading and comparative advertising (OJ No L376 27.12.2006, p 21) (“the Directive”). The Directive replaces Council Directive 84/450/EEC concerning misleading and comparative advertising (OJ No L250 19.9.84, p 17) and codifies the amendments made to that directive. Council Directive 84/450/EEC was implemented by the Control of Misleading Advertising Regulations 1988 (S.I. 1988/915). Those Regulations are revoked by the Consumer Protection from Unfair Trading Regulations 2008 (S.I. 2008/1277:
http://www.legislation.gov.uk/uksi/2008/1276/contents/made
Relevant Article: 4 (comparative advertising) formerly Art 3A from Directive 84/450/EEC – transposed by Regulation 4 – on comparative advertising, listing the 8 conditions where comparative advertising can be permitted
Art 3 BPRs also relevant: Prohibition of advertising that misleads traders
Pricing
Price Marking Order 2004 (SI 2004/102) Entry into force 22/07/2004. This Order implements Directive 98/6/EC (above) on consumer protection in the indication of prices of products offered to consumers. Article 4 requires traders to indicate the selling prices of all products offered for sale to consumers. Article 1 defines the selling price as the final price including VAT and other taxes. Article 6 requires selling and unit prices to be indicated in sterling. Article 7 requires prices and other indications required under the Order to be given in a clear and unambiguous manner. The Order includes specific provisions relating to general price reductions (article 9).
http://www.legislation.gov.uk/uksi/2004/102/contents/made
Guidance for Traders on Pricing Practices by the Chartered Trading Standards Institute (which replaces the UK Government Department for Business Innovation and Skills (BIS) Pricing Practices guide (Nov 2010): This Guidance recommends to traders a set of good practices in giving the consumer information about prices in various situations. It has of itself no mandatory force: traders are not under any legal obligation to follow the practices recommended. The Guidance however takes account of relevant legal obligations, in particular those provisions of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs – shown above) which are relevant to information about prices; the recommended practices are in general expected to be compatible with the CPRs:
Communications Act 2003. The Communications Act incorporates the AVMS Directive 2010/13/EU, following amendments in the form of Audio Media Services Regulations 2009 (AMSR) which inserted VOD provisions (Part 4A; ss368A – R); the Audiovisual Media Services Regulations 2010 which amended and supplemented AMSR 2009; the Audiovisual Media Services (Product Placement) Regulations 2010 which inserted Schedule 11A regarding restrictions on product placement, in addition to further minor amendments to AMSR 2009. The Audiovisual Media Services Regulations 2020 (see below) made amendments to the Broadcasting Acts 1990 and 1996 as well as the Communications Act. The Regulations transpose Directive 2018/1808, which amends Directive 2010/13/EU. The 2018 revising Directive aligns rules for on-demand programme services (ODPS) with those for linear TV, and introduces rules for videosharing platforms (VSPs) for the first time, for which see Part 4b.
http://www.legislation.gov.uk/ukpga/2003/21/contents
https://www.legislation.gov.uk/uksi/2020/1062/part/4/made
The Audiovisual Media Services Regulations 2020. This legislation transposes the Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities. Amendments are made to the Communications Act 2003 (see above) and to the Broadcasting Acts 1990 and 1996. Explanatory memorandum immediately below followed by the link to the legislation:
https://www.legislation.gov.uk/uksi/2020/1062/memorandum/contents
https://www.legislation.gov.uk/uksi/2020/1062/made
Ofcom
The Ofcom Broadcasting Code. Ofcom is the UK Communications Industry regulator, operating under the Communications Act 2003 and funded by fees from industry for regulating broadcasting and communications networks, and by grant-in-aid from the UK Government. The full Code can be accessed here:
https://www.ofcom.org.uk/tv-radio-and-on-demand/broadcast-codes/broadcast-code
Section 9 of the Code contains a set of principles and general, overarching rules that apply to all commercial references in television programming. It also contains specific rules for different types of commercial activity (e.g. product placement, sponsorship), whether it is carried out by, or on behalf of commercial or non-commercial entities. Guidance notes on Section 9 are here:
General content rules specific to TV and Radio are from Appendix 2, taken from the Audiovisual Media Services Directive 2010/13/EU, providing that audiovisual commercial communications shall not (non-exhaustively): (i) prejudice respect for human dignity (ii) include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation (iii) encourage behaviour prejudicial to health or safety
The regulation of advertising on videosharing platforms. Statement. December 7, 2021
https://www.ofcom.org.uk/__data/assets/pdf_file/0022/229009/vsp-advertising-statement.pdf
VOD
The ASA has been designated by Ofcom as the co-regulator for advertising appearing on VOD services. Consequently, appendix 2 has been added to the CAP Code. This will apply to aspects of advertising on VOD services that are subject to statutory regulation under the Communications Act 2003 (as amended). Remit note is here. The Appendix doesn’t introduce new requirements for VOD advertising: VOD providers are already required, under law, to comply with them, and the Appendix doesn’t go beyond the rules that are already in the CAP Code. Adding these requirements to an Appendix of the CAP Code means that the ASA can take action on suspected breaches against the VOD service provider and without the need to refer to Ofcom for legal action. The rules from the Appendix are here:
https://www.asa.org.uk/asset/82C0366B-BF5F-40BF-B8ED401A585F56C9/
Data Protection Act 2018. From Part 1, Overview: (1) This Act makes provision about the processing of personal data. (2) Most processing of personal data is subject to the GDPR. (3) Part 2 supplements the GDPR (see Chapter 2) and applies a broadly equivalent regime to certain types of processing to which the GDPR does not apply (see Chapter 3). (4) Part 3 makes provision about the processing of personal data by competent authorities for law enforcement purposes and implements the Law Enforcement Directive. (5) Part 4 makes provision about the processing of personal data by the intelligence services. (6) Part 5 makes provision about the Information Commissioner. (7) Part 6 makes provision about the enforcement of the data protection legislation:
http://www.legislation.gov.uk/ukpga/2018/12/pdfs/ukpga_20180012_en.pdf
From the iCO (see below): 'The GDPR is retained in domestic law as the UK GDPR, but the UK has the independence to keep the framework under review. The ‘UK GDPR’ sits alongside an amended version of the DPA 2018. The government has published a ‘Keeling Schedule’ for the UK GDPR, which shows the amendments.
Regulatory authority the ICO
Information Commissioner’s Office
Introduction to the Data Protection Act 2018:
https://ico.org.uk/for-organisations/data-protection-act-2018/
Guide to the GDPR:
https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/
Guide to Privacy and Electronic Communications Regulations
https://ico.org.uk/for-organisations/guide-to-pecr/
Direct Marketing Guidance
https://ico.org.uk/media/for-organisations/documents/1555/direct-marketing-guidance.pdf
Video guides
On July 5, 2023, the ICO issued video guides for small organisations; includes soft opt-in for email and text marketing, data protection, and data protection and direct marketing
PECR
Privacy and Electronic Communications (EC Directive) Regulations 2003; entry into force 11/12/2003. These Regulations implement Articles 2, 4, 5 (3), 6 to 13, 15 and 16 of Directive 2002/58/EC of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (E-Privacy Directive). Regulations 20, 21 and 22 set out the circumstances in which persons may transmit, or instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of facsimile machine, make unsolicited calls for those purposes, or transmit unsolicited communications by means of electronic mail for those purposes. Regulation 22 (electronic mail) applies only to transmissions to individual subscribers (the term ‘individual’ means ‘a living individual’ and includes ‘an unincorporated body of such individuals’). Official text (not consolidated):
http://www.legislation.gov.uk/uksi/2003/2426/made
Consolidated version of key clauses here:
http://www.g-regs.com/downloads/UKPECR2003.pdf
Amendments:
The Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2004. Entry into force 25/06/2004. Permitted companies and other corporate bodies to register with the Corporate Telephone Preference Service (Reg 2 (1-5) amended Reg. 26 of PECR 2003):
http://www.legislation.gov.uk/uksi/2004/1039/contents/made
The Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011; entry into force 26/05/2011. Amended various provisions including rules on cookies (in particular Reg. 6 (1-5) amended Reg. 6 of PECR 2003)
http://www.legislation.gov.uk/uksi/2011/1208/contents/made
e-Commerce
The Electronic Commerce (EC Directive) Regulations 2002; these regulations impose information obligations on those providing an information society service. They implement the E-Commerce Directive 2000/31/EC, specifically Articles 3, 5, 6, 7 (1), 10 to 14, 18 (2) and 20 of the Directive. Relevant regulations 6,7,8 require inter alia that a service provider shall ensure that: any commercial communication provided by him and which constitutes or forms part of an information society service shall be clearly identifiable as a commercial communication, clearly identify the person on whose behalf the commercial communication is made, clearly identify as such any promotional offer (including any discount, premium or gift) and ensure that any conditions which must be met to qualify for it are easily accessible, and presented clearly and unambiguously. Consolidated text:
http://www.legislation.gov.uk/uksi/2002/2013/contents/made
Distance selling
The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134). Entry into force: 13/06/2014. These Regulations supersede and replace the Consumer Protection (Distance Selling) Regulations 2000 (as amended) and implement most of the provisions in the Consumer Rights Directive 2011/83/EC. Part 2 of the Regulations requires traders to provide information to consumers in relation to contracts concluded between them. Regulations 13 and Schedule 2 specify the information required for a distance contract (including delivery arrangements, the trader’s complaint handling policy, if there is one, and cancellation rights). Regulation 14 covers requirements for distance contracts concluded by electronic means and Regulation 15 Telephone calls to conclude a distance contract:
http://www.legislation.gov.uk/uksi/2013/3134/contents/made
Environment
CMA (Competition and Markets Authority) Making environmental claims on goods and services. Published 20 September 2021. 'The guidance sets out principles which are designed to help businesses comply with the law. It explains each of these principles. It gives examples of how each of them applies and more detailed case studies where multiple principles apply. The guidance also sets out the legal framework on which these principles are based. The principles are: claims must be truthful and accurate; claims must be clear and unambiguous; claims must not omit or hide important relevant information; comparisons must be fair and meaningful; claims must consider the full life cycle of the product or service; claims must be substantiated.' There's a video available on the linked document.
Green Claims Guidance from the Department for Environment, Food and Rural Affairs (DEFRA):
The EU Commission Guidance on the Application of Directive 2005/29/EC on Unfair Commercial Practices includes Section 5.1 on Environmental Claims, and also provides EU Commission Guidelines for making and assessing environmental claims (Dec 2000). Compliance Criteria on Environmental Claims from Multi-stakeholder Dialogue on Environmental claims 2016 ‘aims to build a common understanding concerning the interpretation of the Unfair Commercial Practices Directive (UCPD) in this area, with a view to achieving a uniform application throughout the EU’.
Industry codes
The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) is the rule book for non-broadcast advertisements, sales promotions and direct marketing communications. This Code applies in media including print, posters, cinema, video and DVDs, mobile phones (SMS and MMS), VOD, Online including brand websites and e-mails. The Code incorporates and supplements provisions of EU law and national legislation. The Committee of Advertising Practice (CAP) is the Self-Regulatory body that creates, revises and enforces the Code. The Advertising Standards Authority (ASA) is the independent body that endorses and administers the Code.
https://www.asa.org.uk/codes-and-rulings/advertising-codes/non-broadcast-code.html
The UK Code of Broadcast Advertising (BCAP Code). This Code applies to all advertisements and programme sponsorship credits on radio and television services licensed by Ofcom:
https://www.asa.org.uk/codes-and-rulings/advertising-codes/broadcast-code.html
Misleadingness/ claims
Misleading advertising. Advice online, Dec 2020
Oh what a tangled web – Misleading ads. CAP News, 16 Jan 2020
The Best Guide to Objective vs Subjective Claims in the Universe. CAP News, 22 Oct 2020
Six top tips to avoid Misleading Advertising. CAP News. Jan 2021
Gender stereotyping and sexuality
CAP and BCAP’s stricter rules prohibiting the sexual portrayal or sexual representation of under-18s (and those who appear to be under 18) in advertising came into force January 2018. The new rules provide that advertising must not portray or represent anyone who is, or seems to be, under 18 in a sexual way. Rules are in full here. For further advice, see CAP’s Sexual Orientation and Gender Identity and Use of Stereotypes.
Social Responsibility
https://www.asa.org.uk/advice-online/social-responsibility.html
Championing diversity during Black History Month October 2021
Disabilities in Ads CAP News December 2021
Use of data for marketing
In November 2018, CAP updated and overhauled their Section 10 in the GDPR context and renamed it as Use of data for marketing, reflecting their focus on marketing associated issues versus ‘pure’ database activities.
See also ‘Five top tips on our new rules on the use of data for marketing’:
Native
September 2013 CAP News What is native advertising?
September 2016 Recognising marketing communications: Overview
5 December 2016 Recognising ads: Contextually targeted branded content
13 March 2017 Guidance on the remit, presentation and content of advertisement features
Vlogging/ Influencers
Guidance on Video Blogs scenarios:
https://www.asa.org.uk/advice-online/video-blogs-scenarios.html
Video ‘Vloggers, bloggers and brands: a short guide to the ad rules:
https://www.asa.org.uk/advice-online/video-blogs-scenarios.html
Four essential questions to ask about video blogs. October 2016
ASA and ITV couple up to help Love Islanders use #ad. July 2019
February 2020. Influencers' guide to making clear that ads are ads
‘Special Edition Influencer Marketing Insight' February 2020
Tweeting: Don’t get all in a Twitter about your #marketing. March 2020
Best Practice Guidance on VAT-inclusive and VAT-exclusive Price Claims Advertising Guidance January 2018:
Prices – General:
https://www.asa.org.uk/advice-online/prices-general.html
Retailers’ Price Comparisons February 2013
Lowest Price Claims and Price Promises February 2013
Make sure the price is right: using reference pricing in ads. CAP News. February2020
At the right price: making price comparisons with previous prices. CAP News. September 2020
Sales promotions/ promotional marketing
Promotional marketing: Prize winners Advice online 26 October 2021
Promotional marketing: General. October 2016. This guidance gives a brief summary of the key points and where to get more information:
https://www.asa.org.uk/advice-online/promotional-marketing-general.html
Not all conditions are created equal - a significant insight into significant conditions. CAP News. 11 Sep 2020
Keep your “free” claims problem-free. CAP News 22 October 2020
Covers pure ‘free’ claims, ‘Conditional purchase’ promotions, and Package Offers, with links to other guidances on the topic and some relevant rulings
Misleading environmental claims and social responsibility guidance of 6 June, 2022; updated 10 February 2023 'to include guidance on the use of carbon neutral and net zero claims in advertising, which reflects key principles of the CMA guidance on environmental claims on goods and services.' Updated again June 23, 2023 (the first link still applies) - reflects recent decisions and carries new emphasis on social responsibility.
Recycled reminders for Recycle Week 2023. CAP News 12 Oct 2023
It’s not that easy being ‘green’ – promoting good work without misleading by omission. CAP News July 27, 2023
News/ guidance re-issued June 2020
ASA statement on the regulation of environmental claims and issues in advertising. ASA News, 23 Sep 2021
https://www.asa.org.uk/news/asa-statement-on-the-regulation-of-environmental-claims-and-issues-in-advertising.html
Misleading environmental claims and social responsibility guidance of December 9, 2021 'consolidates the ASA's position'.
Remit
CAP’s document explaining the remit extension and its scope can be found here:
December 2014 CAP published an Online Remit Update which covers in depth the criteria that the ASA Council apply when deciding whether communication on an owned website falls within remit:
http://cap.org.uk/News-reports/Media-Centre/2014/~/media/Files/ASA/News/ORE Update Dec 2014.ashx
And May 2016 CAP Advice on User Generated Content (UGC):
Native
CAP Code Section 2, Recognition of Marketing Communications:
CAP Advice note is here:
Testimonials
CAP issued Avoiding ‘Fake Views’ – A guide to testimonials and endorsements 10 Dec 2020
DMA
Direct Marketing Association (DMA). The trade body for the direct marketing industry. The DMA ‘manages programmes to protect consumers against bad practice and increase consumer trust in the industry. It promotes best practice through DMA codes of conduct and provides up-to-the-minute information, research and legal advice.’ www.dma.org.uk ‘The DMA Code is an aspirational agreement to which all DMA members and their business partners must adhere. It aims to promote one-to-one marketing as a true exchange of value between your business, looking to prosper, and your customer, looking to benefit – and provides you with the five clear principles that will guide you to achieve this, and against which your conduct will be measured. An important part of your role as a DMA member is to extol and spread the positive values and goals of this Code, for the benefit of our industry into the future.’ The DMA Code is linked below. More specific advice and guidelines are available to members.
https://dma.org.uk/the-dma-code
ISBA
The Incorporated Society of British Advertisers. From their website: ‘ISBA is the only body in the UK that enables advertisers to understand their industry and shape its future because it brings together a powerful community of marketers with common interests, empowers decision-making with knowledge and insight and gives a single voice to advocacy for the improvement of the industry.’ The ISBA Code of Conduct for influencer marketing was launched September 14, 2021. The Code is ‘not a new set of rules and regulations but is a guide to best practice in influencer marketing. It contains commitments from brands, agencies, and talent.’
https://www.isba.org.uk/knowledge/isba-influencer-marketing-code-conduct-september-2021
Updated May 2022: 'The Code is split into three parts, detailing the undertakings which brands, talent agencies, and influencers themselves have each given. It deals with subjects from ad measurement to the issuing of appropriately detailed briefs; and from protecting children and vulnerable groups to fee transparency.' The Code has 'a focus on helping brands to deliver better diversity, equity, inclusion, and representation in their influencer activity.'
IAB UK/ EUROPE
The Interactive Advertising Bureau (IAB) is the UK trade association for digital advertising, representing the UK’s leading brands, media owners and agencies:
How to Comply with EU Rules Applicable to Online Native Advertising
https://iabeurope.eu/all-news/how-to-comply-with-eu-rules-applicable-to-online-native-advertising/
Transparency and Consent Framework (TCF):
https://iabeurope.eu/transparency-consent-framework/
February 2022. EU Regulators Rule Ad Tech Industry's TCF Framework Violates GDPR from GALA/ Mondaq. From that: 'The Belgian Data Protection Authority (DPA) has ruled that the Transparency and Consent Framework (TCF) adopted by Europe's ad tech industry violates the General Data Protection Regulation (GDPR). Further story here
Gold Standard (ad fraud, brand safety):
https://www.iabuk.com/news-article/iab-uk-gold-standard
EDAA
The European Self-Regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance:
ICC
ICC Advertising and Marketing Communications Code 2024. Key September 2024 changes/ updates shown here; full code linked below:
https://iccwbo.org/wp-content/uploads/sites/3/2024/09/ICC_2024_MarketingCode_2024.pdf
From the introduction: ‘The ICC Code is constructed as an integrated system of ethical rules. There are General Provisions and Definitions which apply without exception to all marketing communications; these should be read in conjunction with the more detailed provisions and specific requirements set out in the relevant chapters:
Chapter A Sales Promotion
Chapter B Sponsorship
Chapter C Direct Marketing and Digital Marketing Communications
Chapter D Environmental Claims in Marketing Communications
Chapter E Children and Teens'
EASA
The European Advertising Standards Alliance is a non-profit organisation based in Brussels; it brings together national advertising Self-Regulatory Organisations (SROs, such as the ASA) and other organisations representing the advertising industry in Europe and beyond. EASA is 'the European voice for advertising self-regulation.' The following link provides members:
http://www.easa-alliance.org/members
WFA
World Federation of Advertisers
GDPR guide for marketers:
http://info.wfa.be/WFA-GDPR-guide-for-marketers.pdf
The WFA launched their Planet Pledge in April 2021
And Global Guidance on Environmental Claims April 2022
ESA
The European Sponsorship Association:
ICC Advertising and Marketing Communications Code 2024. In September 2024, the International Chamber of Commerce introduced the newly revised Advertising and Marketing Communications Code (the Code). From the website: '11th Code revision – significant changes: The rapid evolution of technology and technologically enhanced marketing communications and techniques means that producing responsible marketing communications that are trusted in a digital world has continued to be important for companies in preserving their ‘license to operate’. For this reason, the 11th revision addresses both the Code’s usability and its applicability to technology enhanced marketing communications and techniques. It sets a gold standard for modern rule-making in our digital world by addressing the role of people, organisations, software and machines. Significant changes include: