SECTION A OVERVIEW

Updates (slimmed)
CE New code Dec 2020

Unilever/ Dove ruling Jan 2021

Instagram filters ruling Feb 2021

Advertising & body image. CAP, Mar 2021

Revive Collagen ruling September 2021

Digitally Altered Body Images Bill Feb 2022

CE Compendium added April 2022

Links reviewed September 2022

My Perfect Cosemtics Co. ruling Dec 2022

'Clean' marketing claims. U.S. May 2023

Bryan Cave Leighton Paisner/ Lex

Wild Cosmetics ruling (U) May 2023

Dove and the AI beauty promise. April 2024 

HiSmile ruling April 3, 2024. Re flavours

Another HiSmile ruling April 24, 2024 Efficacy

Lewis Silkin commentary on above here 

CAP guidance sun cream claims May 9, 2024

CAP guidance dental products May 9, 2024

Fussy deodorant ruling re denigration v Lynx

Above June 19, 2024. Ad reference here

3 recent ASA decisions in cosmetics 

Mishcon de Reya July 17, 2024. Issues Disparagement, Targeting, Influencers

Greenwashing In Cosmetics

Potter Clarkson October 16, 2024

Boots No.7 Future Renew ruling (U) Oct 30, 2024

Above commercial here; Finnegan here

Dental: Toothpaste CAP AO Nov 25, 2024

CONTEXT AND SCOPE 

These pages cover the rules for marketing communications in the cosmetics sector. We don’t cover labelling or packaging. A cosmetic product is defined here Definition ‘Any substance or mixture intended to be placed in contact with the external parts of the human body (epidermis, hair system, nails, lips and external genital organs) or with the teeth and the mucous membranes of the oral cavity with a view exclusively or mainly to cleaning them, perfuming them, changing their appearance, protecting them, keeping them in good condition or correcting body odours.’ (Art.2.1.a. Regulation 1223/2009). A source of difficulty or complexity in making claims in this category is whether a particular product falls under cosmetics legislation or should be considered to be a medicinal product. In that context, the European Commission pages on cosmetics are here; their statements on borderline products here. The CTPA (the UK Cosmetics trade association), from their Guide to Cosmetics Advertising Claims, provide help on this issue here, and the MHRA Guidance Note 8 defines what is a medicinal product. This is a heavily regulated sector with requirements for e.g. the appointment of ‘responsible persons’ and the compiling and maintenance of 'PIFs' (Product Information Files), which type of requirement is outside our scope.

RULES IN THE UK

There are two EU Regulations at the heart of the regime for the cosmetics sector, so member states have those as the ‘core’ of rules. In the case of the U.K., where both Regulations remain applicable, that core is surrounded by specific additional or complementary self-regulation, and some reflecting legislation. The full picture is of three intertwined regulatory influences, as follows:

1. THE CPR AND COMMON CRITERIA 

Note: Neither the CPR nor the Common Criteria give a list of words or tests that have to be used for claims substantiation. The Responsible Person is the only one who is responsible for making the claims for their products and ensures that a robust claims substantiation is in place.

The Cosmetic Products Regulation (CPR) 1223/2009 (UK legislation link here, statutory guidance updated May 2023 is here) deals largely with product formulation/ safety, the core marcoms-related provision being from article 20.1: 'In the labelling, making available on the market and advertising of cosmetic products, text, names, trade marks, pictures and figurative or other signs shall not be used to imply that these products have characteristics or functions which they do not have'. In the same article, the EC is required to develop an 'action plan regarding claims used and fix priorities for determining common criteria justifying the use of a claim.' The outcome was ‘Regulation 655/2013 (UK legislation link here) setting out those ‘common criteria’ for the justification of claims for cosmetic products, i.e. the acceptability of a claim made on a cosmetic product is determined by its compliance with the common criteria. The six common criteria are:

Legal compliance

Truthfulness

Evidential support

Honesty

Fairness

Informed decision-making

here with summary descriptions. These rules are applicable in the U.K. The (non legally binding) 2017 Technical document on cosmetic claims, provides guidance/ best practice for the application of Regulation 655/2013; Annex I sets out each of the six criteria and shows examples of claims that are not permitted. Annex II deals with Best practice for claim substantiation evidence and III and IV cover 'Free-from' and Hypoallergenic claims respectively. See also our following content section B. 

2. NATIONAL SELF-REGULATORY CODES, GUIDANCE AND LEGISLATION: COSMETICS

2.1. Self-regulation. For broadcast channels, the rules most relevant to cosmetics are found in Section 11 BCAP (Medicines, medical devices, treatments and health) and Section 12 CAP for non-broadcast (Medicines, medical devices, health-related products and beauty products). Many of the provisions in both codes are for medicinal products; the cosmetic-specific rules are extracted in our following content section B. Substantiation is a big issue in cosmetics advertising, so we commend to you CAP's Guidance on the level of substantiation expected in health, beauty and slimming claims from July 2010. It's old, but gold. CAP and BCAP issued a joint Help Note on the Use of Production Techniques in Cosmetic Advertising in April 2011, and review of its application and impact 12 months later. Extracts from the first are set out later below where relevant, and in full in the Press sub-head of our channel section C. The collection of CAP guidance on cosmetic advertising is here, and more here from the ASA's Beauty products, grooming and hygiene. The August 2020 Habits of impeccably groomed male beauty ads and Picture perfect? Advertising and body image from CAP News June 2020 are not cosmetics-specific, but obviously relevant. Advertising and body image, CAP News March 2021, covers 'different poses, airbrushing, clothing, make up and lighting can all exaggerate different parts of the body and therefore make a healthy model appear unhealthy thin' (links are to relevant rulings) and an important further influence in this territory is Social responsibility: Body image Advice from August 2022. Following a call for evidence 'to assist in their regulation of advertising which gives rise to potential harms relating to body image concerns,' CAP & BCAP published Digitally altered images - update statement 21 November, 2023 and a final statement October 2024 (no change). Meanwhile, May 2024 guidance incorporating a number of rulings is: CAP guidance sun cream claims and CAP guidance dental products.

Microbiomes
.......................

‘Advertisers should take care to avoid making claims that overstate the benefits of a product for the microbiome and the skin, based on current scientific knowledge.’ Skin in the game – an update on microbiome claims for cosmetics, CAP News, 28 Jan 2021. This includes a significant ruling versus Unilever/ Dove which did not allow a ‘nourishment’ claim in this context.

CE
.....

Cosmetics Europe is a particularly active and respected trade association, responsible for Guiding Principles on Responsible Advertising and Marketing Communication (2020); the UK trade association CTPA is a member; they publish the CTPA Guide to Cosmetic Advertising Claims. CE also publish a Compendium of applicable legislation, self-regulation, best practices and guidance related to Cosmetic product claims in advertising. Further information in the following content section B.

2.2. In legislation, the UK Cosmetic Products Enforcement Regulations 2013 apply, albeit this is ‘enforcement’ legislation of the CPR 1223/2009 and does not reference marketing communications.

3.1. SELF-REGULATION 

It’s important that the rules for all product sectors, shown in full below under the General tab, are also understood; adjudications against cosmetics advertising frequently come from general misleadingness or ‘Harm and Offence’ rules, for example. The principal source of rules for all advertising content is the CAP and BCAP Codes. We have linked the misleadingness sections in each case. The ‘Harm and Offence’ rules are here (CAP) and here (BCAP). 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. The rules provide an exception in limited circumstances. They are in full here, and may be relevant to some cosmetic advertising. For further advice, see CAP’s Advice Sexual Orientation and Gender Identity and Use of Stereotypes, which relate to the offence rules. The high profile rule and guidance on harmful gender stereotypes came into force from June 2019. General information on that can be found here.

3.2. LEGISLATION

Applicable legislation comprises the Consumer Protection from Unfair Trading Regulations 2008 (CPRs), transposing the Unfair Commercial Practices Directive 2005/29/EC. While advertising regulation is largely a self-regulatory system, legislation imposes requirements on the placement and scheduling of advertising and on the content of advertising: issues around unfair commercial practices and comparative advertising in particular can end up in the courts, so it’s best to know what the statutes say, albeit rules are largely echoed in self-regulation. The CPRs (the Consumer Protection Regulations, not the EU Cosmetic rules) carry provisions relating to misleadingness, material information and comparative advertising, which we show largely under the General tab in content section B.

RULINGS 
See also pt. 4 section B

Cosmetics advertising frequently finds itself in the dock, for various reasons. Search results of ASA rulings for cosmetics are here and we show in content section B a few summaries of key cases. Two significant themes are a) substantiation of claims, therefore the claim being misleading as it is not properly supported by evidence (Jan 2021 example from a Unilever/ Dove 'skin nourishment' case here) and b) products that make medicinal claims in a medical context when they are not licensed to do so. 

May 2023 ruling Wild Cosmetics 

Ruling here. Complaint upheld. Wild claims in the ad included that all deodorants or antiperspirants with synthetic ingredients, or whose action inhibited perspiration, worsened body odour and were likely to have a negative impact on users’ health, including by irritating skin. The advertiser did not hold robust evidence, such as clinical trials, to support these claims. 

Feb and Sept 2021 and April 2024 rulings 

Ruling against Tanologist and Skinny Tan/Elly Norris re use of Instagram filters; ruling against Hismile re inadequate evidence and another April 2024 

Ruling against PBO Skincare Ltd 29 Sept 2021; a post on Revive Collagen’s Instagram - signifcant because of health v cosmetics claims and lack of substantiation

CHANNEL RULES FOR COSMETICS 

The cosmetic sector does not attract any channel (i.e. placement) rules that are specific to the sector and to any individual medium. The general channel rules, applicable to all sectors cosmetics included, are referenced in (very) brief immediately below and in the following channel section C, but principally available from the General tab beneath the sector-specific rules as, essentially, there aren’t any channel rules specific to cosmetics. The ASA will, however, consider whether the content of an ad is irresponsible for a younger audience as in this Coty/ Rimmel ruling from December 2023.

• Broadcast: general content rules specific to TV and Radio are from the Ofcom Broadcasting Code (OBC) Appendix 2, taken from the Audiovisual Media Services Directive 2010/13/EU and providing that audiovisual commercial communications shall not (non-exhaustively): (i) prejudice respect for human dignity (ii) include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation (iii) encourage behaviour prejudicial to health or safety
• Personal Data processing: The collection and use of personal data for marketing purposes is regulated by the new Data Protection Act 2018, which accompanies the General Data Protection Regulation GDPR, directly applicable in member states. 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 Five top tips on our new rules on the use of data for marketing.
• Unsolicited communications email: The Privacy and Electronic Communications Regulations 2003 (PECR); provides for the opt-in and soft opt-in regime
• Social media/ Influencer marketing. Key extract from the general rules section C (below under the General tab) is CAP’s An Influencer’s guide to making clear that ads are ads

SECTION A OVERVIEW

Updates since June 2023 (slimmed)

* Recommended read

ASA consultation re DMCCA Closes 5/2/25

The new data bill from DSIT October 24, 2024

ICO response here, Keystone Law Dec 9 here

BHM: Avoiding offensive depictions of race in ads

CAP News October 10, 2024

AI

Future-proof advertising event at the ASA
ASA and CAP News November 14, 2024

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

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

Influencer Marketing - Key Advice Resources CAP News Nov 28, 2024

Influencers and their business interests RPC Oct 17, 2024

Top tips for responsible influencer marketing CAP News Jul 31, 2024

Section 2 of the CAP Code covers recognition of marketing communications, and the BCAP Code Section 2 does the same in broadcast. There’s a lot of guidance from CAP in this territory; most of it can be found here; a key piece is Influencers' Guide to making clear that ads are ads from the CMA/ CAP March 2023 and a ‘Special Edition Influencer Marketing Insight' includes a flow chart, cheat sheet and affiliate marketing infographic etc. The CMA themselves provide guidance from a consumer law perspective with Hidden ads: Being clear with your audience, update of 3 November 2022; CMA guide for brands here, for content creators here. ISBA's Influencer Marketing Code of Conduct was updated June 2023. Influencers can be animals - Fur warning: the rules that apply to pet influencers CAP News, 08 Sep 2022. The ASA now include a page on their website which identifies influencers who have failed to comply with rulings/ warnings and in December 2023 announced a partnership with Instagram and five content creators to publish a series of new videos, aimed at sharing key aspects of the rules that all UK advertisers must follow. The vids can be found via the link. This review of digital ad regulation by Gowling 30 April 2024 provides some instructive cases and commentary (video) and this 2022 (we think) Influencer Marketing Guide from DLA Piper is a comprehensive review of the rules in all the major jurisdictions including the U.K.

Ad content legislation (Influencers and generally)

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

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

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

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

Para 11, Schedule 1 of the CPRs provides that a commercial practice ‘in all circumstances considered unfair’ is ‘Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial)’. More broadly, Regulation 6 (1) d of Part 2 of the CPRs sets out a misleading omission when ‘a commercial practice fails to identify its commercial intent, unless this is already apparent from the context.’ More broadly still, it is this legislation, transposed from the UCPD 2005/29/EC, that is the core of misleadingness regulation around Europe and including the UK (the CPRs are retained legislation). The UK self-regulatory position reflects the statutory position and the ASA is the 'established means' of advertising regulation; we therefore don't dwell on legislation, albeit in channel rules in particular it's best to know the law as well as the ASA's requirements. As the act brings online financial scam ads into its scope, impact here from Burges Salmon Dec 7, the Online Safety Act may also influence marketers' and agencies' corporate lives: Update from Ofcom here October 17, 2024 and Ofcom published its first major policy statement December 16, 2024. Extract here Providers now have a duty to assess the risk of illegal harms on their services, with a deadline of 16 March 2025. Subject to the Codes completing the Parliamentary process, from 17 March 2025, providers will need to take the safety measures set out in the Codes or use other effective measures to protect users from illegal content and activity. We are ready to take enforcement action if providers do not act promptly to address the risks on their services.

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.

Adlaw Insights podcast - Sustainability. Lewis Silkin Dec 9, 2024

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 above here & here 

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

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

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

FCA (Financial Conduct Authority) and related

Clarifications to the Sustainability Disclosure Requirements
 Burges Salmon re FCA consultation Dec 11, 2024

FCA Sustainability disclosure and labelling regime 

Above includes implementation timeframe. Last updated Nov 1, 2024

The FCA has granted temporary flexibility until April 2, 2025

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

​

SECTION A OVERVIEW

SECTION B CONTENT RULES

1. THE EU CPR 1223/2009 & CLAIMS REGULATION 655/2013

1.1. The CPR

1.2. The Claims Regulation Common Criteria and guidelines

1.3. Guidelines for ‘free from’ claims

1.4. Guidelines for ‘hypoallergenic’ claims

1.5. Other claims – ‘natural’ and ‘organic’

1.6. Sunscreen products

1.7. Animal testing (absence of)

2. NATIONAL SELF-REGULATORY CODES, GUIDANCE & LAW
Cosmetics-specific

2.1. CAP and BCAP codes

2.2. Guidance and advice

2.3. Trade Association rules in the U.K. and Europe

2.4. National legislation and government guidance

3. GENERAL RULES with relevance to cosmetics

3.1. Misleadingness

3.2. Harm and offence

3.3. Sexual portrayal and stereotypes

3.4. Environmental rules

3.5. Legislation in marketing communications in the U.K.

4. RULINGS

4.1. Medicines v cosmetics

4.2. Tooth whitening

4.3. Banishment of wrinkles

4.4. Sunscreen

4.5. Skin 'nourishment'

4.6. Tanning/ filters

4.7. Body image/ models

1. THE CPR 1223/2009 AND CLAIMS REGULATION 655/2013

1.1. The CPR 1223/2009

• The CPR carries one key article specific to claims in marketing communications - Article 20. From that: 1. ‘In the labelling, making available on the market and advertising of cosmetic products, text, names, trade marks, pictures and figurative or other signs shall not be used to imply that these products have characteristics or functions which they do not have.’
• 3. The responsible person may refer, on the product packaging or in any document, notice, label, ring or collar accompanying or referring to the cosmetic product, to the fact that no animal tests have been carried out only if the manufacturer and his suppliers have not carried out or commissioned any animal tests on the finished cosmetic product, or its prototype, or any of the ingredients contained in it, or used any ingredients that have been tested on animals by others for the purpose of developing new cosmetic products
• The article also requires: ‘the Commission shall adopt a list of common criteria for claims which may be used in respect of cosmetic products, in accordance with the regulatory procedure with scrutiny referred to in Article 32(3) of this Regulation, taking into account the provisions of Directive 2005/29/EC.’ (Note: that’s the Unfair Commercial Practices Directive which we cover later and below under the General tab. All that’s being said here is that the nature of the common criteria should be consistent with ‘horizontal’ provisions in the UCPD)

The acceptability of a claim made on a cosmetic product is determined by its compliance with all six of the common criteria

Official EU guidelines for all of the Common Criteria to Regulation 655/2013 are here; guidelines for each of the criteria have been extracted and are shown separately under each sub-head below

1. Legal compliance

Guidelines for this criterion here

1. Claims that indicate that the product has been authorised or approved by a competent authority within the Union shall not be allowed
2. The acceptability of a claim shall be based on the perception of the average end user of a cosmetic product, who is reasonably well-informed and reasonably observant and circumspect, taking into account social, cultural and linguistic factors in the market in question
3. Claims which convey the idea that a product has a specific benefit when this benefit is mere compliance with minimum legal requirements shall not be allowed

2. Truthfulness

Guidelines for this criterion here

1. If it is claimed on the product that it contains a specific ingredient, the ingredient shall be deliberately present
2. Ingredient claims referring to the properties of a specific ingredient shall not imply that the finished product has the same properties when it does not
3. Marketing communications shall not imply that expressions of opinions are verified claims unless the opinion reflects verifiable evidence.

3. Evidential support

Guidelines for this criterion here

1. Claims for cosmetic products, whether explicit or implicit, shall be supported by adequate and verifiable evidence regardless of the types of evidential support used to substantiate them, including where appropriate expert assessments
2. Evidence for claim substantiation shall take into account state of the art practices
3. Where studies are being used as evidence, they shall be relevant to the product and to the benefit claimed, shall follow well-designed, well-conducted methodologies (valid, reliable and reproducible) and shall respect ethical considerations
4. The level of evidence or substantiation shall be consistent with the type of claim being made, in particular for claims where lack of efficacy may cause a safety problem
5. Statements of clear exaggeration which are not to be taken literally by the average end user (hyperbole) or statements of an abstract nature shall not require substantiation
6. A claim extrapolating (explicitly or implicitly) ingredient properties to the finished product shall be supported by adequate and verifiable evidence, such as by demonstrating the presence of the ingredient at an effective concentration
7. Assessment of the acceptability of a claim shall be based on the weight of evidence of all studies, data and information available depending on the nature of the claim and the prevailing general knowledge the end users

Note:  the relevant/ equivalent rules from CAP and BCAP codes are spelt out in full under point 2 of Section C; key extracts related to the CC above are immediately below:

• CAP Code rule 12.1, BCAP 11.4. Objective claims must be backed by evidence, if relevant consisting of trials conducted on people. Substantiation will be assessed on the basis of the available scientific knowledge. Secondary medicinal claims made for cosmetic products as defined in the appropriate European legislation must be backed by evidence. These are limited to any preventative action of the product and may not include claims to treat disease
• CAP Code rule 3.7 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
• See also Substantiation for health, beauty and slimming claims CAP Advice February 2020

4. Honesty

Guidelines for this criterion here

1. Presentations of a product’s performance shall not go beyond the available supporting evidence
2. Claims shall not attribute to the product concerned specific (i.e. unique) characteristics if similar products possess the same characteristics
3. If the action of a product is linked to specific conditions, such as use in association with other products, this shall be clearly stated

Note: from CAP Code rules:

• Marketers must hold documentary evidence that a testimonial (or before and after photos) or endorsement used in a marketing communication is genuine, unless they are obviously fictitious, and hold contact details for the person who, or organisation, that gives it  (CAP 3.45)
• Testimonials must relate to the advertised product. (CAP 3.46)
• 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 3.47)
• Marketing communications must not feature a testimonial without permission; 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 3.48)

5. Fairness

Guidelines for this criterion here

1. Claims for cosmetic products shall be objective and shall not denigrate the competitors, nor shall they denigrate ingredients legally used
2. Claims for cosmetic products shall not create confusion with the product of a competitor

Note:

• Reference the above first para re ‘objectivity', see CAP 3.2 and BCAP 3.4 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
• See also Common Criteria 3. Evidential support: Statements of clear exaggeration which are not to be taken literally by the average end user (hyperbole) or statements of an abstract nature shall not require substantiation
• Reference the second Para, see Article 6 Directive 2005/29/EC Unfair Commercial Practices and Article 4 Directive 2006/114/EC Misleading and Comparative Advertising e.g. comparing effectiveness against wetness of an anti-perspirant and a deodorant is not fair, as the two are different products with different functions

6. Informed decision-making

Guidelines for this criterion here

1. Claims shall be clear and understandable to the average end user
2. Claims are an integral part of products and shall contain information allowing the average end user to make an informed choice
3. Marketing communications shall take into account the capacity of the target audience (population of relevant Member States or segments of the population, e.g. end users of different age and gender) to comprehend the communication. Marketing communications shall be clear, precise, relevant and understandable by the target audience.

Note:

• See Article 5 Directive 2005/29/EC Unfair Commercial Practices reference first para above on ‘the average end user ‘

1.3. Guidelines for ‘free from’ claims

From the Technical document on cosmetic claims agreed by the Sub-Working Group on Claims (version of 3 July 2017). We have assembled the specific free-from' guidance related to common criteria in a table here Note: the technical document is not an EC document

From the document: “In the case of ‘free from’ claims, more guidance is needed for the application of the common criteria to provide an adequate and sufficient protection of consumers and professionals from misleading claims.”

From CTPA: ‘The Technical Document on Cosmetic Claims was updated in July 2017 to add an interpretation of how the Common Criteria apply to ‘free from’ and ‘hypoallergenic’ claims. That document is not legally binding, although the new elements referring to ‘free from’ and ‘hypoallergenic’ claims should be applicable as of 1 July 2019. However, companies have to remember that the Common Criteria for Cosmetics claims are from a Regulation and therefore legally binding: a company would be expected to provide its own robust substantiation for a different  interpretation of how the Common Criteria apply to ‘free from’ claims if they wish to continue making such claims.’

1.4. Guidelines for hypoallergenic claims

From Annex IV Technical document on cosmetic claims  (version of 3 July 2017)

The claim "hypoallergenic" can only be used in cases, where the cosmetic product has been designed to minimize its allergenic potential. The responsible person should have evidence to support the claim by verifying and confirming a very low allergenic potential of the product through scientifically robust and statistically reliable data (for example reviewing postmarketing surveillance data, etc.). This assessment should be updated continuously in light of new data. If a cosmetic product claims to be hypoallergenic, the presence of known allergens or allergen precursors should be totally avoided, in particular of substances or mixtures:

• Identified as sensitizers by the SCCS or former committees assessing the safety of cosmetic ingredients
• Identified as skin sensitizers by other official risk assessment committees
• Falling under the classification of skin sensitizers of category 1, sub-category 1A or sub-category 1B, on the basis of new criteria set by the CLP Regulation18
• Identified by the company on the basis of the assessment of consumer complaints
• Generally recognized as sensitizers in scientific literature
• For which relevant data on their sensitizing potential are missing

• The use of the claim "hypoallergenic" does not guarantee a complete absence of risk of an allergic reaction and the product should not give the impression that it does
• Regarding the use of human data in risk assessment of skin sensitisation, including ethical aspects, reference should be made to the SCCS “Memorandum on use of Human Data in risk assessment of skin sensitisation”, SCCS/1567/15, 15 December 2015
• The companies should consider whether consumers, in the respective country, understand the claim "hypoallergenic". If necessary, further information or clarification regarding its meaning should be made available

1.5. Other claims – ‘natural’ and ‘organic’

• As it stands, the terms ‘natural’ and ‘organic’ are not specifically regulated under cosmetics rules, although Article 20 CPR and the Common Criteria still apply as they do to all types of cosmetic product claims, whether natural/ organic or otherwise; the claim must not mislead and must be capable of substantiation. Horizontal legislation will also apply, per UCPD 2005/29/EC as transposed into U.K. law in the form of the CPRs; see 3.5 below
• Non-mandatory source (soft law): Natural cosmetics guidelines approved by the Council of Europe expert committee on Cosmetics, which provides conditions of use of ‘natural’ claims. Despite dating back to September 2000, the guidelines continue to have some relevance in the absence of specific replacements in European law
• That absence is part explained here: Clarification of the absence of European harmonised standard for natural and organic cosmetics from the DG Sanco (EC Health and Consumer Protection Department) pages 16/10/2015. The bottom line of that explanation is that an International Organization for Standardization (ISO) standard for natural and organic cosmetics was in the process of development. That process has now completed and been published, but findings/ conclusions do not include claims related to the terms ‘natural’ and ‘organic’.
• There are two ‘private’ (non profit) associations who provide standards: Cosmos-Standard, and NaTrue. Further background to those organisations and their publications, and more on all of the above, has been assembled here
• From the CTPA Guide to Cosmetic Advertising Claims: ‘Natural’ and ‘Organic’ Claims. 'There is no specific guidance for ‘natural’ and ‘organic’ claims. Cosmetic natural and/ or organic standards have been developed by different certification bodies. However, none of these standards or guidelines is specifically backed by law. They are all different, although the difference may be minor. Between 2016 and 2017 the International Standards Organisation (ISO) published Guidance 16128 on definitions and assessment for ‘natural’ and ‘organic’ ingredients and products for cosmetics; ISO 16128 provides a technical approach to determine the ‘natural’ and ‘organic’ content of cosmetic products: it does not address product communication (claims and labelling), human safety, environmental safety or socio-economic considerations.‘Natural’ or ‘organic’ cosmetic products must comply with the safety and product information requirements of the Cosmetic Products Regulation. In particular, ‘natural’ and ‘organic’ claims for cosmetic products have to comply with Article 20 of the Cosmetic Products Regulation and the Common Criteria for Cosmetic Claims. Companies should set defined criteria for their understanding of ‘natural’ and ‘organic’ based on the above mentioned ISO Standard and adhere to these criteria. Companies should also be transparent to consumers about these criteria and should not imply that this type of product is safer than other cosmetics just because they are making ‘natural’ or ‘organic’ claims.'

1.6. Sunscreen products

CAP guidance sun cream claims May 9, 2024

Defined as any preparation (such as creams, oils, gels, sprays) intended to be placed in contact with the human skin with a view exclusively or mainly to protecting it from UV radiation by absorbing, scattering or reflecting radiation (sect. 1 (2a) CR). Therefore it applies to “primary” sun protection products such as beach, mountain or sports products. Daily protection products, such as moisturizers, with labelling of UV protection (even an SPF and/or UVA protection level) will not come under the scope of the Recommendation, as long as they do not claim "sun protection". (per Cosmetic Europe Q&A) 

The EC pages on sunscreen products documentation and legislation are here. From those:

Sunscreen products are cosmetics according to Regulation 1223/2009. The efficacy of sunscreen products, and the basis on which this efficacy is claimed are important public health issues. In particular:

• Products should contain protection against all dangerous UV radiation
• An indication of the efficacy of sunscreen products should be simple, unambiguous, and meaningful; and it should be based on standardised, reproducible criteria
• Labels and claims should provide sufficient information to help consumers choose the appropriate product and apply it correctly

The Recommendation on the efficacy of sunscreen products and the claims made relating to them, adopted in 2006, addresses these issues and sets out the:

• Claims which should not be made in relation to sunscreen products
• Precautions to be observed including application instructions
• Minimum efficacy standard for sunscreen products in order to ensure a high level of protection of public health
• Simple and understandable labelling to assist in choosing the appropriate product

Prohibited claims

No claim should be made that implies the following characteristics (point 5):

• 100% protection from UV radiation (such as ‘sunblock’, ‘sunblocker’ or ‘total protection’)
• No need to re-apply the product under any circumstances (such as ‘all day prevention’)

Efficacy claims

• Claims indicating the efficacy of sunscreen products should be simple, unambiguous and meaningful and based on standardised, reproducible criteria (point 11)
• Such claims need to be verified by the respective testing methods as outlined in Point 10 and subsequently standardised by ISO and published by European Standardisation Organisation (CEN)
• Claims indicating UVB (Burn) and UVA (Aging) protection should be made only if the protection equals or exceeds the levels set out in Point 10, which provides for the minimum degrees of protection:

• For UVB Protection Claims: SPF (Sun Protection Factor) rating must be at least 6
• For UVA Protection Claims (including Broad Spectrum claims): a UVA protection factor should be at least 1/3 of the labelled SPF; second criterion a critical wavelength of 370 nm, as obtained in application of the critical wavelength testing method

Cosmetics Europe related guidelines and recommendations

• Recommendation No. 23 Important Usage and Labelling Instructions For Sun Protection Products (February 2009)
• Recommendation No. 25 Use of Appropriate Validated Methods for Evaluating Sun Product Protection (2013)

1.7. Animal testing (absence of)

Article 20 (3) of the CPR and the accompanying guidelines from Commission Recommendation 2006/406/EC allows restricted use of claims on the absence of animal testing, relating to the development or safety evaluation of the product or its ingredients. Cosmetics Europe has argued that such a claim is obsolete, as it would transgress the Legal Compliance common criterion: that you have complied with a legal requirement can’t be the basis of a claim. As animal testing is prohibited (testing ban since 11/09/2004 and marketing ban since 11/03/2009) such a claim would be founded on a legal requirement

See also Animal testing and cosmetics. Advice online February 2022

2. NATIONAL SELF-REGULATORY CODES, GUIDANCE AND LEGISLATION: Cosmetics-specific

2.1. CAP (Non-broadcast) and BCAP (Broadcast) code

For broadcast channels, the Cosmetics rules are found in Section 11 BCAP (Medicines, medical devices, treatments and health) and Section 12 CAP for non-broadcast (Medicines, medical devices, health-related products and beauty products). Many of the provisions in both codes are for medicinal products; the rules that might apply to cosmetics, and cosmetic-specific rules are extracted below

CAP rules

• Objective claims must be backed by evidence, if relevant consisting of trials conducted on people. Substantiation will be assessed on the basis of the available scientific knowledge
• Secondary medicinal claims made for cosmetic products as defined in the appropriate European legislation must be backed by evidence. These are limited to any preventative action of the product and may not include claims to treat disease (CAP 12.1)
• Marketers must not discourage essential treatment for conditions for which medical supervision should be sought. For example, they must not offer specific advice on, diagnosis of or treatment for such conditions unless that advice, diagnosis or treatment is conducted under the supervision of a suitably qualified health professional. Accurate and responsible general information about such conditions may, however, be offered (see rule 12.11)
• Health professionals will be deemed suitably qualified only if they can provide suitable credentials, for example, evidence of: relevant professional expertise or qualifications; systems for regular review of members' skills and competencies and suitable professional indemnity insurance covering all services provided; accreditation by a professional or regulatory body that has systems for dealing with complaints and taking disciplinary action and has registration based on minimum standards for training and qualifications (CAP 12.2)
• Marketers must not confuse consumers by using unfamiliar scientific words for common conditions (CAP 12.4)
• Marketers should not falsely claim that a product is able to cure illness, dysfunction or malformations (CAP 12.6)
• References to the relief of symptoms or the superficial signs of ageing are acceptable if they can be substantiated. Unqualified claims such as "cure" and "rejuvenation" are not generally acceptable, especially for cosmetic products (CAP 12.7)
• Marketers must hold proof before claiming or implying that a minor addiction or a bad habit can be treated without effort from those suffering (CAP 12.8)
• Marketers must not encourage consumers to use a product to excess and must hold proof before suggesting their product or therapy is guaranteed to work, absolutely safe or without side-effects (subject to rule 12.19: Marketing communications for a medicine may not claim that its effects are guaranteed, that it is absolutely safe or without side-effects or as good as or better than those of another identifiable product (CAP 12.9)
• Marketing communications must not suggest that any product is safe or effective merely because it is "natural" or that it is generally safer because it omits an ingredient in common use (CAP 12.10)

Cosmetic-specific

• Claims made about the action that a cosmetic has on or in the skin should distinguish between the composition of the product and any effects brought about by the way in which it is applied, such as massage. Scientific evidence must also make that distinction (CAP 12.22)
• Some cosmetics have an effect on the type of skin changes that are caused by environmental factors. Marketing communications for them may therefore refer to temporarily preventing, delaying or masking premature ageing (CAP 12.22.1)

Hair and scalp

• Marketers must be able to provide scientific evidence, if relevant consisting of trials conducted on people, for any claim that their product or therapy can prevent baldness or slow it down, arrest or reverse hair loss, stimulate or improve hair growth, nourish hair roots, strengthen the hair or improve its health as distinct from its appearance (CAP 12.23)

BCAP

• If they are necessary for the assessment of claims, broadcasters must, before the advertisement is broadcast, obtain generally accepted scientific evidence and independent expert advice (BCAP 11.2)
• Advertisements must not discourage essential treatment for conditions for which medical supervision should be sought. For example, they must not offer specific advice on, diagnosis of or treatment for such conditions unless that advice, diagnosis or treatment is conducted under the supervision of a suitably qualified health professional (see rule 11.9). That does not prevent advertising for spectacles, contact lenses or hearing aids (BCAP 11.3)
• Medicinal or medical claims and indications may be made for a medicinal product that is licensed by the MHRA, the VMD or under the auspices of the EMA, or for a CE-marked medical device. A medicinal claim is a claim that a product or its constituent(s) can be used with a view to making a medical diagnosis or can treat or prevent disease, including an injury, ailment or adverse condition, whether of body or mind, in human beings.  Secondary medicinal claims made for cosmetic products as defined in the appropriate European legislation must be backed by evidence. These are limited to any preventative action of the product and may not include claims to treat disease (BCAP 11.4)
• No advertisement may encourage indiscriminate, unnecessary or excessive use of products or services covered by this section (BCAP 11.14)
• Unless allowed by a product licence, words, phrases or illustrations that claim or imply the cure of an ailment, illness, disease or addiction, as distinct from the relief of its symptoms, are unacceptable  (BCAP 11.15)
• Unless authorised by the relevant product licence, the word "tonic" is not acceptable in advertisements that make health claims. Claims must not suggest that a product has tonic properties. That does not prevent the use of the word "tonic" in the description "Indian tonic water" or "quinine tonic water" (BCAP 11.16)

2.2. Guidance and advice
See also Section A Overview

• CAP guidance sun cream claims May 9, 2024 and CAP guidance dental products May 9, 2024 and Dental:Toothpaste from November 25, 2024

• CAP and BCAP issued a joint Help Note on the Use of Production Techniques in Cosmetic Advertising in April 2011, and news of its impact 12 months later. Extracts from the first are set out in full in the press sub-head of our following channel section C. The examples given are predominantly relating to ads for mascaras but the principles involved apply equally elsewhere

• This is not a drill - dental ads wisdom. CAP News, 03 May 2018
• CAP's Guidance on the level of substantiation expected in health, beauty and slimming claims from July 2010 is important when substantiation is often an issue in cosmetics advertising
• In June 2020, CAP published Picture perfect? Advertising and body image; not cosmetics-specific but obviously relevant

• Staying out for the summer – sun safety and the Ad Code. CAP News, 09 May 2019

• Substantiation for health, beauty and slimming claims Advice February 2013. This guidance about non-broadcast advertising covers three types of claim:

• Sensory/ impressionistic subjective claims - these are claims that cannot be proved objectively and which might be understood to be opinion e.g. "no other shower gel leaves you feeling fresher". In some circumstances, satisfactory consumer research may be required to back them up (see Section 1 of the Advertising Guidance)
• Uncontroversial/established objective claims - a less significant amount of evidence is usually needed in support of these types of claims. The Advertising Guidance gives examples of what might constitute satisfactory proof (see Section 2)
• "New" or "breakthrough" objective claims - the ASA and CAP have more stringent evidence requirements for these types of claims

2.3. Trade association rules in the U.K. and Europe

The cosmetics trade associations both nationally and across Europe are active and respected; most significant advertisers are members. Their respective codes/ guidelines are linked below with some key clauses extracted

Europe

https://cosmeticseurope.eu/files/8716/0015/1562/Charter_and_Guiding_Principles_on_Responsible_Advertising_and_Marketing_Communications_-_1st_Revision.pdf

Or the file can be downloaded at: https://www.cosmeticseurope.eu/library/8

2.2.1. General principles. All cosmetic advertising and marketing communication shall comply with general provisions, concerning:

1. Denigration: cosmetics advertising and marketing communications should not denigrate any person or group of persons, firm, organisation, industrial or commercial activity, profession or product, or seek to bring it or them into public contempt or ridicule
2. Discrimination: cosmetics advertising and marketing communications should respect human dignity and diversity. It should not incite or condone any form of discrimination, including that based upon ethnic group, national origin, religion (or no religion), gender, age, disability, lifestyle choice or sexual orientation
3. Exploitation of credulity and inexperience: cosmetics advertising and marketing communications should not be framed so as to abuse the trust of consumers or exploit their lack of experience or knowledge
4. Humour may be used in advertising and marketing communications in such a manner that it does not stigmatize, humiliate or undermine any person, group of persons or beliefs
5. Lifestyle choices: cosmetic advertising and marketing communications should not be denigrating or judgmental regarding lifestyle choices that consumers choose to make
6. Play on fear: cosmetics advertising and marketing communications should not without justifiable reason play on fear or exploit misfortune or suffering
7. Play on superstition: Marketing communications should not play on superstition
8. Portrayal of gender: cosmetics advertising and marketing communications should not contain any sexually offensive material and should avoid any textual material or verbal statements of a sexual nature that could be degrading to those that associate themselves with any type of gender identity. Furthermore, advertising and marketing communications should not be hostile toward any gender identity
9. Offensiveness: any statement or visual presentation likely to cause profound or widespread offence to those likely to be reached by it, irrespective of whether or not it is directly addressed to them, is not acceptable. This includes the use of shocking images or claims used merely to attract attention
10. Taste and Decency: cosmetics advertising and marketing communications should not contain statements or audio or visual treatments which offend standards of decency currently prevailing in the country and culture concerned
11. Violence: cosmetics advertising and marketing communications should not appear to condone or incite violent, unlawful or anti-social behaviour
12. Safety and health: cosmetics advertising and marketing communications should not without reason, justifiable on educational or social grounds, contain any visual presentation or any description of dangerous practices or of situations which show a disregard for safety or health. Models used in advertisements and post-production techniques should not appear to promote a preferred body image of extreme thinness.

1. Do not focus on bodies and parts of bodies as objects when not relevant to the advertised product
2. Do not stage nude models in a way that is demeaning, alienating or sexually offensive. When using nudity, the media used and the intended as well as potential audience should be considered. This also applies to any way a model may be dressed, where this may be offensive in certain cultural contexts

Vulnerable populations

• Advertising could consider promoting the concept of hygiene and sanitary benefits of cosmetic products to children and teens, in particular sun protection products, oral care products, and cleaning products (including soap, shampoos and teenage acne coverups)
• Advertising of decorative cosmetics and perfumes should not incite children to overuse of such products
• Advertising of cosmetic products, including images, should not promote early sexualisation of young people
• Advertising in social media platforms, smartphone applications or games that children or teens may be attracted to or targeted by should be considered very carefully in terms of the effects they may have.

Image honesty

1. The advertiser should ensure that the illustration of a performance of an advertised product is not misleading (see Product Claim Substantiation)
2. Digital techniques should not alter images of models such that their body shapes or features become unrealistic and misleading regarding the performance achievable by the product
3. Pre- and post-production techniques are acceptable provided they do not imply that the product has characteristics or functions that it does not have. For example, the following cases would not be considered misleading:

• Using obvious exaggeration or stylized beauty images that are not intended to be taken literally
• Using techniques to enhance the beauty of the images that are independent from the product or effect being advertised

U.K.

The UK trade association CTPA is a member of CE; they publish the CTPA Guide to Cosmetic Advertising Claims. The Guide is particularly strong on the various types of claims Sensory Claims, Performance Claims, Ingredient Claims, Product Aesthetics Claims, Combination claims, Comparison claims, Subjective claims, Objective claims in cosmetics advertising and their construction. Their ‘Claims Decision Tree’ is extracted here (this is a screen shot of the page and may not reproduce well; it should be taken in context). The Guide is endorsed by CAP, ASA and Clearcast. The CTPA also provide ‘Confidence in Cosmetic Claims’ (December 2018). From that:

Cosmetic claims in a nutshell

• Claims are regulated by a mix of legislation, self-regulation and industry best practices
• Cosmetics are not medicines
• The understanding of the average consumer should be considered
•  Difficulty for the cosmetics industry to discuss specific words or claims – the overall presentation should be considered
• The substantiation should be available at the time of the claim and will depend on the class of the claim and on the level of evidence needed

2.4. National legislation and guidance: Cosmetics-specific

• In legislation, the UK Cosmetic Products Enforcement Regulations 2013 apply, albeit this is ‘enforcement’ legislation of the CPR 1223/2009 and does not reference marketing communications; labelling is Regulation 5
• The Medicines and Healthcare Products Regulatory Agency (MHRA): A guide to what is a medicinal product MHRA Guidance Note No.8 (2020)

Cosmetic claims and borderline products 

Cosmetic claims should emphasise the cosmetic use of the product i.e. cleansing, moisturising, perfumery, keeping the skin in good condition. Article 20(1) of Regulation (EC) 1223/2009 on cosmetic products refers to product claims and states “In the labelling, making available on the market and advertising of cosmetic products, text, names, trade marks, pictures and figurative or other signs shall not be used to imply that these products have characteristics or functions which they do not have.”

As a guide the following are examples of claims which MHRA could regard to be adverse medical conditions:

• Toothpastes which are intended to be used to relieve the pain of sensitive teeth will fall to be either medicinal products or medical devices depending on their mode of action. However, toothpastes which are designed to be used without exacerbating sensitivity remain as cosmetics (CTPA also publishes guidance on toothpaste claims, developed in collaboration with the MHRA)
• To protect /prevent eczema, dermatitis and psoriasis. These are all adverse medical conditions which can be exhibited by dry, inflamed, scaly and itchy skin and products will fall to be either medicinal products or medical devices depending on their mode of action (CTPA also publishes guidance on eczema claims, developed in collaboration with the MHRA)
• References to specifically named pathogens e.g. MRSA is an implied medicinal claim to prevent or treat infections that are caused by the MRSA micro-organism
• Nappy rash is a form of dermatitis. Claims to protect against nappy rash would not be regarded to be acceptable if in the context they amount to claims to prevent nappy rash
• Shampoos may be cosmetics or medicines, depending on the constituents and the claims being made. Those mainly intended for hygiene, or are for anti-dandruff, are likely to be cosmetic products. However, if the claims are for the alleviation or treatment of itchy scalp, or dermatitis, then the product would fall to be a medicinal product as it suggests that an underlying medical condition exists
• Products to treat/prevent spots and acne are medicines as these are all adverse medical conditions. However, depending on the product’s presentation, claims that the product is intended to be used solely to conceal spots/acne will generally mean some products will be regarded to be cosmetic products. A cosmetic product should be primarily used for its cosmetic purpose as listed in the definition of a cosmetic product and advertised to consumers accordingly

3. GENERAL RULES and guidance with relevance to Cosmetics

The general rules i.e. those that apply to all sectors cosmetics included, are set out below under the General tab. So this immediately below is a ‘snapshot’ of the most significant rules, in our judgement, in this context:

3.1. Misleadingness

• Section 3 of the CAP Code Misleading Advertising: ‘A key and extensive section of the Code, containing rules such as substantiation (evidence to prove claims); pricing; the use of the word ‘free’; availability of products, comparisons, testimonials and more.’
• Section 3 of the BCAP Code Misleading Advertising

3.2. Harm and offence

• Section 4 of the CAP Code Harm and Offence: ‘Rules to ensure that ads do not cause harm or serious or widespread offence. Includes rules relating to shock tactics, unsafe practices and photosensitive epilepsy.’
• Section 4 of the BCAP Code Harm and Offence: Advertisements must not be harmful or offensive. Advertisements must take account of generally accepted standards to minimise the risk of causing harm or serious or widespread offence. The context in which an advertisement is likely to be broadcast must be taken into account to avoid unsuitable scheduling (see Section 32: Scheduling).

3.3. Sexual portrayal and stereotypes

• Offence: Sexualisation and objectification. (Also titled Social responsibility/ Body Image). Advice online 14 Dec 2018. ‘On 14 December 2018 CAP announced the introduction of a new rule in the Advertising Codes that requires that ads ‘must not include gender stereotypes that are likely to cause harm, or serious or widespread offence’.  This follows a review of gender stereotyping in ads by the ASA and came into force 14 June 2019. It is also supported by additional guidance on potentially harmful gender stereotypes.’ More in the linked document
• Offence: Nudity. Advice online. 20 Mar 2019. ‘Marketing communications featuring gratuitous use of nudity can cause serious or widespread offence but marketers will find the public is generally more tolerant of it if the nudity is relevant to the advertised product; lingerie and beauty products are good examples for which nudity can generally be used without offending (H&M Hennes & Mauritz UK Ltd, 4 April 2012; Calvin Klein, 18 January 2012). However, trying to make nudity relevant by, for example, using puns or sexual innuendo is unlikely to render the ad acceptable.’ More in the linked document
• Offence: Use of stereotypes. Advice online. 15 May 2018. ‘Marketers may use stereotypes in advertising but should be careful not to cause serious or widespread offence. Generally speaking, the ASA regards the use of light-hearted stereotypes as acceptable but marketers should be careful that they are not seen as offensive, demeaning or the subject of ridicule. That judgment is obviously subjective and the ASA and CAP will judge each ad on its merit.  Code rule 4.1 states that particular care must be taken to avoid offence on the grounds of race, religion, gender, sexual orientation, disability or age. Marketers should be particularly aware of their depictions of these characteristics, and ensure that their ads do not contain anything which may be likely to cause serious or widespread offence on any grounds.’ More in the linked document
• Children: Sexual Imagery. Advice online. 02 Jan 2018. ‘The Code does not prevent marketers from using images of children but they should do so in a socially responsible manner. On 2 January 2018 Code rules 4.8 and 4.13 were added to the CAP and BCAP Codes respectively. These rules state that ads should not portray or represent anyone who is, or seems to be, under 18 years old in a sexual way. This does not apply to ads whose principal function is to promote the welfare of, or to prevent harm to, under 18s, provided any sexual portrayal or representation is not excessive.’ More in the linked document.

3.4. Environmental rules

Environmental rules are spelt out below under the General tab. This is a tricky area, so best to read the full rules and guidance. That said, the optimum single and simple resource are the CAP Codes:

The CAP Code Section 11 Environmental Claims

The BCAP Code Section 9 Environmental Claims

3.5. Legislation in marketing communications in the U.K.

Legislation that affects marcoms in the UK is spelt out below under the General tab. A brief summary is:

• The Consumer Protection from Unfair Trading Regulations 2008 (CPRs), transposing the Unfair Commercial Practices Directive 2005/29/EC; from the CAP Code Annex 1, ‘the CPRs prohibit unfair marketing to consumers, including misleading or aggressive advertising. Whenever it considers complaints that a marketing communication misleads consumers or is aggressive or unfair to consumers, the ASA will have regard to the CPRs. That means it will take factors identified in the CPRs into account when it considers whether a marketing communication breaches the CAP Code.’
• Business-to-business marketing communications are subject to the Business Protection from Misleading Marketing Regulations 2008 (the BPRs). Business-to-business marketing communications that breach the CAP Code may be referred to Trading Standards for consideration under the BPRs
• General (i.e. all sectors) content rules specific to TV and Radio are from the Ofcom Broadcasting Code (OBC) Appendix 2, taken from the Audiovisual Media Services Directive 2010/13/EU and providing that audiovisual commercial communications shall not (non-exhaustively): (i) prejudice respect for human dignity (ii) include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation (iii) encourage behaviour prejudicial to health or safety
• Channel rules such as those requiring consent and information in unsolicited communications, and lawful data processing rules from the GDPR, are shown in our channel Section C, primarily under the General tab, as there are no cosmetic-specific rules in this context

4. RULINGS

Some ASA rulings on cosmetics advertising can be found here from a search of ‘Cosmetics’ under the Rulings tab on the ASA website. We show below some of the more significant rulings, because of the advertiser or the issue:

4.1. Medicines v cosmetics

4.2. Tooth whitening

See also Are your toothpaste claims ‘all-white’. CAP News December 14, 2018 and

Toothpaste: General. Advice online November 25, 2024

4.3. Banishment of wrinkles

4.4. Sunscreen for kids

October 2019 case v L’Oréal re Garnier Ambre Solaire Sensitive Advanced Kids sun cream. Issue was to do with the UVA protection rating of the product and its availability, and the claim “We’re also the only sun care brand partner of the European Cancer League”. Part upheld.

4.5. Unilever/ Dove ‘nourishment of skin’ January 2021

This case shows two aspects of claims and the process of review of their legitimacy. First, it’s an example of a number of similar findings when the evidence to support the claim is found to be insufficient and second, the great depth of examination of the claim and its substantiation that the process undertakes. 

4.6. Tanning/ filters February 2021

Rulings against Tanologist and Skinny Tan/Elly Norris re use of Instagram filters

4.7. Body image/ models 

CAP News March 2021. Different poses, airbrushing, clothing, make up and lighting can all exaggerate different parts of the body and make a healthy model appear unhealthily thin (links are to relevant rulings)

SECTION B CONTENT RULES

1. SELF-REGULATION: THE CAP AND BCAP CODES

1.1. Recognition of advertising/ marketing communications

1.2. Misleadingness

1.2.8. Comparisons

Comparisons with Identifiable competitors

Other comparisons

Price comparisons

Imitation and denigration

1.2.9. Endorsements and testimonials

1.3. Harm and offence
Health/ safety
Social responsibility

Gender stereotyping

1.4. Environmental claims

2. LEGISLATION IN ADVERTISING (Content)

2.1. CPRs and BPRs/ Unfair Commercial Practices Directive

2.2. Ofcom Broadcasting Code/ AVMS Directive

2.3. Pricing

The scope of the CAP code is here and BCAP here

1.1. Recognition of marketing communications

CAP Code Section 2

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

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

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

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

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

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

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

BCAP Code, Section 2: Recognition of advertising

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

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

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

• Television advertisements, except for programme promotions must not:
   

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

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

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

1.2.1. General

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

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

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

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

1.2.2. Substantiation

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

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

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

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

Example rulings

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

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

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

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

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

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

• The main characteristics of the product

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

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

• Delivery charges

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

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

Example rulings

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

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

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

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

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

1.2.3. Qualifications

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

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

• CAP publishes Guidance for Qualification claims

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

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

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

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

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

Example rulings

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

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

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

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

1.2.5. Prohibited claims

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

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

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

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

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

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

Ensure prices match the product shown

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

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

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

Additional CAP advertising guidance

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

Retailers’ Price Comparisons February 2013

 Lowest Price Claims and Price Promises February 2013

Availability September 2016

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

Principle

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

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

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

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

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

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

Rulings search ‘free’

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

Example ruling

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

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

English High Court considers when ads are comparative by implication

Osborne Clarke/ Lex April 9, 2024

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

Comparisons with identifiable competitors

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

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

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

Other comparisons

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

Price comparisons

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

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

Rulings search ‘Comparisons’

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

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

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

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

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

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

Rulings search ‘Denigration’

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

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

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

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

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

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

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

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

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

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

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

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

Rulings search ‘Endorsements and testimonials’

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

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

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

Health/ safety

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

Social responsibility

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

Advertising guidance on social responsibility

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

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

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

Rulings search ‘Offense’

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

Some rulings

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

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

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

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

The rules (see below for clauses)

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

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

Key guidance 

CMA Green Claims Code September 2021

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

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

CAP News June 5, 2024

Environmental Claims Special Edition of the Insight Newsletter

CAP Insight June 5, 2023

Misleading environmental claims and social responsibility 

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

Other guidance/ work

Ensuring your environmental claims are more than just hot air

CAP News June 2020
Updated environmental guidance: green disposal claims 

CAP News 28 November, 2023

 ASA website Our work on Climate Change and Environmental Claims

Internationally

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

ICC Advertising and Marketing Communications Code (EN 2024)

Chapter D for environmental claims 

​

The CAP and BCAP codes

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

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

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

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

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

EC guidance

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

2.1. The CPRs and BPRs

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

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

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

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

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

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

(i) prejudice respect for human dignity

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

(iii) encourage behaviour prejudicial to health or safety

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

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

Legislation

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

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

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

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

Key case

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

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

The CPRs and price in advertising

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

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

SECTION B CONTENT RULES

1. SELF-REGULATION; the 2024 ICC Code

1.1. General provisions

2. THE LAW 

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

2.3. The AVMS Directive 

2.4. The Empco Directive 

2.5. The Green Claims Directive ​
 

1.1 General provisions 

Basic principles (Art. 1)

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

Social responsibility (Art. 2)

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

Marketing communications should not:

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

Decency​ (Art. 3)

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

Honesty (Art. 4)

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