Food and Soft Drinks

 

Uploaded November 2018.

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United Kingdom

A. Overview

Sector

SECTION A OVERVIEW

 

Updates since January 2023 (slimmed)

Sustainability & Branding In The F&D Sector

Above from Kilburn & Strode/ Lex Jan 27, 2023

The Skinny Food co. ruling 1 Feb 2023

Osborne Clarke commentary re above 

Ofcom implementation statement July 11, 2023

Restrictions in force October 1, 2025

Kellogg's All-Bran Prebiotic Oaty Clusters ruling

Aug 2, 2023. Complex but kind of reassuring

Food claims: navigating pitfalls in the UK

Taylor Wessing December 14, 2023

Hovis ruling Feb 28, 2024 (NU). Shot here

Defense team played a blinder 

The Skinny Food Co in deficit Apr 3, 2024

HFSS newsletter May 13, 2024. Osborne Clarke

Above UK, France, Germany, Spain 

Huel ruling re Steven Bartlett (U) Aug 14, 2024

And the same result for Zoe same date

Just Eat ruling re targeting (U) Aug 21, 2024

Huel hit with third ad ban in two months

Above from the Beeb September 25, 2024

Formula milk advertising. CAP Oct 24, 2024

Cheesestrings and BVOD and Clearcast 

Lewis Silkin Oct 14, 2024. Ad here 

 

RECENT ISSUES/ NEWS 

 

The Importance Of Transparent Vegan Labelling And The Risk Of

Greenwashing In The Chocolate Industry. Potter Clarkson Sept 11, 2024

Ban on junk food TV adverts before 9pm to come in next year

BBC September 12, 2024

The Food (Promotion and Placement) (Wales) Regulations

Consultation closes September 23, 2024

Food for thought - Environmental claims in food advertising
CAP News June 5, 2024

Environmental claims in food advertising
Research from the ASA. April 18, 2024

 

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The GB register; retained legislation

The U.K. government has issued the Great Britain Nutrition and Health Claims register (Jan 2021) and the Annex Health claims authorised on the basis of proprietary data (Dec 2020). These are to be read with Nutrition and health claims: guidance to compliance with Regulation (EC) 1924/2006 of 11 January 2021 here; implications note here. In Northern Ireland, EU food law will continue to apply, as listed in the Northern Ireland Protocol. Where we show 'EU' law below, it will be retained iaw, typically the case for EU Regulations, and published on legislation.gov.uk as ‘legislation originating from the EU’. Also see the Nutrition legislation information sheet of January 2021 from the Department of Health and Social Care, pt. 4 Nutrition and health claims made on food. This ASA ruling on Brite Drinks May 11, 2022 covers some of the legislative ground in this context.

 

INTRODUCTION AND CONTEXT


Food and Soft Drinks marketing in the U.K. is politically sensitive and the rules governing it are complex. The regulatory regime is best understood when set out under the two main protective ‘shields’:

 

  1. Rules protecting children from potential harms associated with the marketing of food and drink products high in fat, salt or sugar (HFSS - the U.K. Department of Health Nutrient Profiling Model is used to differentiate between HFSS and non-HFSS products for the purposes of both the CAP and BCAP HFSS rules); these rules, especially their more recent developments, include strict placement requirements
  2. General consumer protection measures, derived mainly from EU food law, the aim of which is to ensure that food and drink marcoms are not misleading. The key rules relate to the use of nutrition and health claims


This structure is followed through this overview and into the following content rules section B. Note that where we refer to 'food', this term includes soft drinks.

 

1. FOOD AND CHILDREN: SELF-REGULATION


Rules governing the content of advertising for all food and soft drinks are found in CAP Code Section 15 which covers non-broadcast advertisements, sales promotions and direct marketing communications and BCAP Code Section 13, 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 TV services. CAP and BCAP rules have been amalgamated in the content section B below. Importantly, and related to the structure set out above, both codes contain a section on food and soft drink advertising to children. Those sections have also been amalgamated and assembled here; broadly, the content and placement rules that applied to broadcast media only, now apply in other media. That means - for content rules - that advertising for HFSS products will not be allowed to use promotions, licensed characters and celebrities popular with children. A placement rules summary, in the same context, is below.

 

Guidance and rulings
All of the relevant guidance documents, of which there are many from both self-regulatory and government sources, are in the content section B that follows. The most significant on children and food are: CAP’s Children: Food Advice Online is an overview of key requirements and includes several rulings; Food: HFSS Overview does what it says on the food tin and Children and HFSS Ads – Three Lessons from 2019 provides some high-profile transgressions and learning. 

 

Advertising placement overview
HFSS product advertising must not be targeted at under-16s in any media. Since 2007, the BCAP Code has prohibited TV advertising ‘in or adjacent to children’s programmes or programmes commissioned for, principally directed at or likely to appeal particularly to audiences below the age of 16’ (Section 32). Rules for non-broadcast media, including in print, cinema, online and in social media, came into effect on 1st July 2017. CAP’s rules now provide a common standard to BCAP’s TV restrictions; in summary, advertising that directly or indirectly promotes an HFSS product cannot appear in children’s media or in other media where children make up over 25% of the audience.

 

Food industry commitment

The EU Pledge, enhanced July 2021 effective January 2022, is a voluntary initiative by leading Food and Beverage companies to change food and soft drink advertising to children. Members undertake to advertise to children under 13 only those food and beverages which meet EU Pledge nutrition criteria; no marketing or advertising in primary schools unless requested/ agreed, and to abide by the ICC Code and its sister Framework for Responsible Food and Beverage Marketing Communications.

 

2. GENERAL CONSUMER PROTECTION MEASURES

 

European and national legislation 

 

  • Food and Soft Drinks marcoms are subject to a variety of legislative influences, largely inspired by a body of EU law that regulates food composition and safety, labelling, and 'information', which incorporates advertising, provisions from which are generally mirrored by rules in the CAP and BCAP Codes, but it's important to know the statutory context;
  • Key legislation for marketers is Regulation 1924/2006 on Nutrition and Health Claims made on Foods (link is to consolidated text), which includes in its annex a list of nutritional claims and their conditions of use. For Great Britain (essentially, the U.K. minus Northern Ireland), see the Great Britain Nutrition and Health Claims register (Jan 2021) and the accompanying Nutrition and health claims: guidance to compliance with Regulation (EC) 1924/2006 (Jan 2021);
  • Regulation 432/2012 establishes a list of permitted health claims (link is to consolidated text); a recent (August 2023) ruling against Kellogg's All-Bran Prebiotic Oaty Clusters is interesting because of its context of health claims and some gritty issues on servings. Commentary here from Richard Naish of Walker Morris. 
  • The EU Register brings the two Regulations together in providing permitted nutrition claims and authorised health claims; it's important that nutrition and health claims follow the authorised claim to the letter, although there is some limited flexibility, explained in the following content section under point 2.1, for claims that have the same meaning to consumers. See above re GB register;
  • Regulation 1169/2011 (link is to consolidated text) on the provision of food information to consumers, enforcement provisions for which are made in UK law by the Food Information Regulations 2014. The EU Regulation is principally to do with labelling but includes some relatively broad requirements for marcoms, shown in our content section B;
  • Food groups such as supplements, weight control products, and infant formula have been subject to some legislative manoeuvring in Europe with the establishment of Regulation 609/2013 on Foods for Specific Groups (FSG Reg), which applied uniformly, as do all EU Regulations, across member states from 20 July 2016. The Regulation is retained legislation in the U.K.

 

Rules from all of the above are set out in our following content section B

 

FOODS FOR SPECIFIC GROUPS

 

Regulation 609/2013 on Foods for Specific Groups (FSG Reg), which applied uniformly across the EU from 20 July 2016, sets general compositional and information requirements for four specific categories of food intended for 'vulnerable' groups of consumers. These food groups were formerly classified as 'Foodstuffs intended for particular nutritional uses' (so-called 'Parnuts') and regulated under Framework Directive 2009/39/EC, and a series of more specific directives. The four groups and their specific directives are:

 

Infant formulae and follow-on formulae: Directive 2006/141/EC 
Processed cereal-based foods and baby foods for infants and young children: Directive 2006/125/EC 
 Dietary foods for special medical purposes: Directive 1999/21/EC 
 Foods intended for use in energy-restricted diets for weight reduction: Directive 96/8/EC

 

The FSG Regulation repealed and replaced the Framework Directive, and in so doing abolished the 'Parnuts' concept. The rules from the directives above remain (mostly) applicable until new rules in the form of 'Delegated Acts', have replaced them, which has happened in the case of Infant formulae and follow-on formulae via Delegated Regulation 2016/127 which applied from 22 February 2020 (except in respect of Infant formula and Follow-on formula manufactured from protein hydrolysates, to which it applied from 22 February 2021). The following content section B sets out the rules.

 

FOOD SUPPLEMENTS

 

Supplementary advice on health claims in ads for supplements
Supplements are subject to food rules. CAP News 11 Jan, 2024

 

Food Supplements are regulated in Europe by Directive 2002/46/EC, which prohibits in labelling, presentation and advertising the property of preventing, treating or curing a human disease, or referring to such properties (Art. 6/2), nor may there be any mention stating or implying that a balanced and varied diet cannot provide appropriate quantities of nutrients in general (Art. 7). The Directive is implemented faithfully under Article 6, Food Supplements (England) Regulations 2003. CAP issued Food supplements, COVID-19 and the immune system, 17 July 2020. This reminds advertisers of the prohibition of ads that state or imply that a food, drink or food ingredient can prevent, treat or cure human disease. See May 2023 ruling against Braincare here, June 2024 vs Rejuvit here and the July 24, 2024 rulings vs several supplements: Ejec/ Auri, Innocent Health, Nowt, Nutriburst, Vitality Greens and Well Gummies (go to July 24 rulings as the link is to the general rulings page; Brodies on the issue here July 29, 2024 and Osborne Clarke August 30 here)

 

ORGANIC FOODS and CBD PRODUCTS 

 

We don’t cover this area in depth as organic foods aren't advertised much. The best ‘snapshot’ of rules is from CAP News Sept 2019 Harvest our fresh advice on “Organic” claims

CAP news August 2021 CBD marketing: a potted guide for budding entrepreneurs

 

GENERAL RULES

 

As well as observing the sector-specific rules that are set out in the following pages, food advertisers must also observe the general rules that apply to all product categories, covering areas such as misleadingness, social responsibility etc. Rulings in food advertising (April 2022 Re-nourish soup example here) can be made on the basis of these all-sector provisions, which are set out under the General tab below. Principal sources of the U.K.'s general advertising rules are the CAP and BCAP codes, non-broadcast and broadcast (linear TV and Radio) respectively. 

 

 

 

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Read more

General

SECTION A OVERVIEW

 

Updates since March 2023 (slimmed)

 

Lufthansa ruling March 1, 2023. Ad here

The ASA on AI. ASA News 23 Feb 2023

Shell ruling ASA June 7, 2023. BBC here

Environmental claims guidance ASA June 23, 2023

Dove self-esteem ruling (NU) Nov 6, 2023

Vid on above here. Good decision

IPA & ISBA principles for use of gen AI in advertising

LufthansaEtihad and Air France rulings Dec 6, 2023 (U)

FKA Twigs and her Calvins (PU) Mar 6, 2024 re this ad

News on the above BBC Mar 6, 2024 & from FKA Twigs

And Browne Jacobson comment here March 8*

CAP Insight May 23, 2024 Topics Crypto, Royal references, mental health depiction

Brandowner Influencer ruling May 28, 2024 Lewis Silkin*

Hurtigruten ruling (U) July 17, 2024. Ad here

Key Advice Resources Green Claims. CAP News Aug 7

CAP Insight August 22, 2024. Topics Social responsibility, misleading gameplay and promotions

Ads & Brands Law Digest: July 2024 Lewis Silkin Aug 13 Topics include ASA Vinted, Joint publishing Instagram and AI, CMA trader guidance, Wowcher and Simba, HFSS Wales, EHRC, trade marks

CMA Fashion business environmental claims guide 9/18

CAP Insight September 19, 2024 Topics XmasAnxiety, Eyes and Halloween

Qualifying cryptoassets broadcast ads CAP Sep 27, 2024

ASA/ Online choice Architecture. Bird&Bird Sept 30, 2024

Regulatory Outlook Oct 2024 Osborme Clarke

Regulatory outlook Nov 2024 Osborne Clarke Topics Vaping bill, ASA vaping, NCSC malvertising, CMA/Emma, ASA AI

ASA Rulings Summary, 2 - 9 October 2024. DLA Piper

CAP Insight October 10, 2024 Topics Race depiction, smoking cessation, chiropractors, affiliate marketing

CAP Insight November 7, 2024. Topics Long Covid, International Men's day, Children, Regenerative farming

CAP Insight November 21, 2024 Topics Alcohol health claims, harm and offence, mushrooms ffs

 

* Recommended read

KEY ISSUES/ NEWS 

 

The new data bill from DSIT October 24, 2024

Freshfields on above here Oct 25 & ICO response here

BHM: Avoiding offensive depictions of race in ads

CAP News October 10, 2024

CMA objects to Google’s ad tech practices

CMA September 6, 2024

Comparative Guide and AdLaw Insights Lewis Silkin July 2, 2024. Topics Manifestos, dating apps, Ofcom, alcohol alternatives, in-game purchases, gambling sponsorship, calisthenics claims, KLM, Vinted, green claims directive 

 

AI

ASA webinar November 14, 2024 (YT)

The UK's new AI Bill. RPC October 17, 2024

AI as a marketing term. CAP News July 11, 2024

The ICO’s strategic approach to regulating AI
RPC August 1, 2024

What's the latest on the UK govt's approach to AI?*
Osborne Clarke Feb 12, 2024 and Burges Salmon Apr 2 and Shoosmith 17th

 

THE AD CODES

 

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

 

INFLUENCERS/ RECOGNITION OF ADVERTISING

 

Influencers and their business interests RPC Oct 17, 2024

Top tips for responsible influencer marketing CAP News 31 Jul 2024

Influencer Marketing - Key Advice Resources CAP News 21 Feb 2024

 

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

 

Ad content legislation (Influencers and generally)

 

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

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

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

 

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

 

Para 11, Schedule 1 of the CPRs provides that a commercial practice ‘in all circumstances considered unfair’ is ‘Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial)’. More broadly, Regulation 6 (1) d of Part 2 of the CPRs sets out a misleading omission when ‘a commercial practice fails to identify its commercial intent, unless this is already apparent from the context.’ More broadly still, it is this legislation, transposed from the UCPD 2005/29/EC, that is the core of misleadingness regulation around Europe and including the UK (the CPRs are retained legislation). The UK self-regulatory position reflects the statutory position and the ASA is the 'established means' of advertising regulation; we therefore don't dwell on legislation, albeit in channel rules in particular it's best to know the law as well as the ASA's requirements. As the act brings online financial scam ads into its scope, impact here from Burges Salmon Dec 7, the Online Safety Act may also influence marketers' and agencies' corporate lives: Online Safety Act - An Overview Burges Salmon again Nov 13, 2023. Update from Ofcom here October 17, 2024.

 

MISLEADINGNESS

 

Around 70% of the complaints the ASA receives relate to misleading advertising, covered in Section 3 of the CAP Code and the same Section of the BCAP Code. This is a significant slice of the codes, and includes, for example, issues of price, substantiation, qualification, and comparisons in advertising. Forms of misleadingness are set out under our content section B, though we have separated price issues as these are also subject to statutory provisions, and in of themselves can be somewhat complex. Key guidance from CAP News Jan 2020, re-issued Dec 2020, is here, and Advice online Dec 2020 here. On 28 January 2021, re-issued Jan 2022, CAP published Six top tips to avoid misleading advertising and on April 20, 2023 a Misleadingness checklist. Misleadingness in law is (largely) from Regulation 5 of the CPRs, which covers misleading actions and Regulation 6, which deals with misleading omissions. Comparative advertising in law is provided for under The Business Protection from Misleading Marketing Regulations 2008, Regulation 4, in part a transposition of the Misleading and Comparative Advertising Directive 2006 /114/EC. Also see Q&A: misleading advertising practices in United Kingdom from Herbert Smith Freehills LLP/ Lex June 2024,  Substantiation 101 from CAP 23rd February, 2023 and Misleading ads CAP News March 7, 2024.

 

ENVIRONMENTAL CLAIMS

 

Rail-y useful advice on making environmental comparisons

CAP News July 31, 2024

 

This is obviously a hot topic; the CAP and BCAP codes anyway devote whole sections to the subject: 11 and 9 respectively, set out in our content section B below. The CMA Green Claims Code was published September 20th 2021, their checklist same date here; CAP guidance will 'complement' the CMA's work, which was developed in close consultation with ASA/CAP. Commentary on the CMA guidance from Macfarlanes/ Lex hereThe 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.

 

Some rulings and more guidance and commentary

 

The ASA, AI & Greenwashing Travers Smith Oct 22, 2024

Green claims update: September 2024 RPC

Virgin Atlantic ruling (U) August 7, 2024

Stepenson Harwood & Lewis Silkin on the above here & here 

Wessex Water ruling (U) July 10, 2024. Ad here

 

 

FCA (Financial Conduct Authority) and related

FCA Sustainability disclosure and labelling regime 

Above includes implementation timeframe. Last updated Nov 1, 2024

The FCA has granted temporary flexibility until April 2, 2025

 

GENDER STEREOTYPES AND BODY IMAGE 

 

Review of Body Image in advertising. CAP's Final statement October 10, 2024

International Women’s Day 2024 CAP News March 7 covers roles and characteristics, sexual objectification and body image, with multiple references to relevant cases and other associated guidance; International Men's Day 2023 November 9 was treated equally.

 

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

 

Always uniquely associated with one gender

The only options available to one gender

Never carried out or displayed by another gender

 

From CAP’s Insight piece 8/3/2019: ‘The ASA already takes a tough position on sexualisation, objectification and unhealthily-thin body image in ads (see also e.g. Celine ruling September 20, 2023.) Where these cases have previously been considered under rules about offence and social responsibility, they could also fall under the new rule.’ The first rulings happened 14/8/19; both VW E-Golf and Philadelphia Cheese were found to have breached the rules, but the Buxton water complaint on the same grounds was not upheld. There was some controversy around the VW decision in particular; trade press story here. Ruling April 2021: a paid-for Instagram post from Babyboo Fashion was banned for being likely to cause serious or widespread offence by objectifying women; case here. On body image, a May 2021 ruling found against a Max Mara ad here (extract of image) and - back to stereotyping - this is an interesting Sept 2021 ruling that did not uphold a complaint against a Strive Footwear commercial, but a more straightforward ruling against the Hurricane Spin Scrubber on March 27, 2024. Following their call for evidence in January 2022, CAP and BCAP have published an interim statement on body image in advertising November 3, 2022.

 

SEXUALITY/ SOCIAL RESPONSIBILITY/ INCLUSION

 

BHM: Avoiding offensive depictions of race in ads. CAP News October 10, 2024

The Equality and Human Rights Commission updated their guidance on discriminatory adverts July 16, 2024

 

The key sections in the CAP Code are Compliance Section 1 and Harm and Offense Section 4. The same sections apply in the BCAP Code. The CAP Code clause 1.3 Clause Marketing communications must be prepared with a sense of responsibility to consumers and to society casts a pretty wide net and can be deployed for example when ruling on portrayals of 'sexuality'; this Em Rose Onlyfans case from January 2024 is an example - the poster is this one and FK Twig and her Calvins got a Jan 2024 dressing down, subsequently adjusted, for this adChecking out Take your social responsibilities seriously CAP News August 22, 2024 is a responsible move. In a February 2022 Boohoo case a complaint about images on their website was upheld; see also this Drum story on the Adidas sports bra case May 2022. In October 2021, CAP issued Championing diversity during Black History Month, which includes a number of instructive rulings and 'a few best practices that can go a long way towards helping to deliver a campaign that champions racial diversity in a positive way.' Extending this topic, Tackling racial and ethnic stereotyping in UK ads from February 2022 reports on research findings and other reviews and sets out plans for positive development; Guidance on avoiding racial and ethnic stereotyping in ads was issued by CAP 25 May 2023; see above under the sub-head for the 2024 version of CAP's recognition of Black History Month and this October 10 piece from Brinsley Dresden of Lewis Silikin is an admirable round-up of, and commentary on, sensitive racial issues in advertising in recent timesA ruling went against Outsourceful Jan 24, 2024 for racial stereotyping. Referring to persons with disabilities in ads from CAP News 09 Dec 2021 covers inter alia negative stereotypes and trivialisation. 

 

 SEXUALISATION/ SEXUAL IMAGERY

 

CAP and BCAP’s stricter rules prohibiting the sexual portrayal or sexual representation of under-18s (and those who appear to be under 18) in advertising came into force January 2018. The new rules provide that advertising must not portray or represent anyone who is, or seems to be, under 18 in a sexual way. They are in full here​. CAP subsequently issued How to ensure your ad doesn’t break our new rules on sexualisation, setting out the key points to ensure compliance with the rules. For further advice, see CAP’s Advice Sexual Orientation and Gender Identity and Use of Stereotypes. Indecent advertising in fashion: Boohoo, Balenciaga and Pretty Little Thing from Freeths/ Lex December 2022 here walks us through some of the uncomfortable cases in this territory. Sexual imagery in advertising from DLA Piper Feb 2023 is a helpful analysis and includes reference to the January 2023 Demi Lovato ruling (image here).

 

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

 

The Price Marking (Amendment) Order 2024

In force Oct 1, 2025. Lewis Silkin here Nov 11, 2024

 

CAP Code Section 3 (Misleading advertising) carries several provisions under pricing, and the BCAP Code has the same territory, also under Section 3. Price statements in marcoms should also take account of the Guidance for Traders on Pricing Practices (2018) from the Chartered Trading Standards Institute, under the auspices of DBEIS; the CAP advertising guidance Prices – General is helpful, and from June 2023 Make sure the price is right: using reference pricing in ads covers ground such as ‘strikethrough’ prices and ‘was-now’. Following the self-regulatory provisions should be sufficient, but it is as well to be aware of the statutory requirements. From the legislation header above, the CPRs' Regulation 6 (misleading omissions) carries requirements related to an 'invitation to purchase' and Schedule 1, the equivalent of the UCPD annex/ blacklist, sets out a number of price-related provisions e.g. 'bait' and 'bait and switch'. Another important influence in this context is the EU's Product Price Directive, with a UK transposition of the Price Marking Order 2004 (retained law). CAP News July 2023 To include or not to include? - VAT in stated prices has a best practice guide and in September 2020 At the right price: making price comparisons with previous prices. See March 2024 RRP pricing guidance here and here from CAP and this Premier Inn ruling May 1, 2024 is a good example of how not to use 'from' pricing. The CMA, the UK's competition authority, is increasingly active in this territory and will be more so in light of new powers under the DMCC (see above); they state that they will have regard to their August 2024 Discount and Reference Pricing Principles on mattress pricing online when reviewing other sectors -  see Foot Anstey's August 29 commentary here. The ASA have ruled on a number of mid-contract price increases; CMS with a good piece on the issue here October 14, 2024 and Lewis Silkin's 30th September piece on the recent CJEU ruling on Aldi versus the UK scenario is worth a butcher's For more on pricing, see also the Sales Promotion tab under channel section C later in these pages.

 

DATA PROTECTION

 

Privacy issues should be reviewed with specialist advisors

 

CJEU Rules on Targeted Advertising in Schrems v Meta
Lewis Silkin November 11, 2024

Data Protection update - October 2024
Stephenson Harwood November 5, 2024 UK, EU

A UK perspective on ‘consent or pay’ online advertising models
Stephenson Harwood/ Lex July 25, 2024

The announcement of a new Digital Information and Smart Data Bill
Addleshaw Goddard/ Lex August 7, 2024

 

The collection and use of personal data for marketing purposes is regulated by the Data Protection Act 2018, which accompanies the GDPR. The UK Data Protection Authority the ICO provide important and valuable advice in all areas of privacy. Their GDPR guide is here and the link here provides access to the ICO interactive tool that will help small and medium-sized businesses with personal data within the EEA. On July 5, 2023 the ICO issued video guides for small organisations, covering data protection, direct marketing and soft opt-in. Some implications from the EU's Digital Services Act are set out here by Lewis Silkin/ Lex October 21, 2022 and New Digital Regulators on the 2023 Horizon from RPC/ Lex sets out some distinctions between the EU and UK regulatory approaches. Harnessing AdTech and Advertiser First party data (ppt slides) from Lewis Silkin April 18, 2024 covers RTB, customer matching, cookies, and a number of other key legal issues related to data protection in the U.K. and Europe. Finally, the data protection legal framework in the U.K. from Hunton July 1, 2024 does what it says on the cover.

 

CAP DATA

 

Can we get some privacy? A guide to the privacy rules CAP News April 25, 2024

Stay up to data: four key tips on using personal data for marketing. CAP News Jan 26, 2023

 

In November 2018, CAP updated and overhauled their Section 10 in the GDPR context and renamed it 'Use of data for marketing', reflecting their focus on marketing-associated issues versus ‘pure’ database activities. See Five top tips on our new rules on the use of data for marketing from November 2018 and from January 2022 CAP News Four key tips on using personal data for marketing. Also relevant is the IAB Transparency and Consent Framework, albeit the TCF has run into consent issues. On the issue of privacy rules in the context of featuring celebrities or members of the public, CAP issued in July 2020 A guide to the privacy rules (see above - re-issued April 2024).

 

CHANNEL RULES

 

Media bill becomes law; Lewis Silkin report June 6, 2024

Top tips on targeting and placement. CAP News Feb 22, 2024

This is helpful/ interesting: Comparison Between The Digital Services Act And The Online Safety Act 2023

Lewis Silkin February 5, 2024

 

Channel, i.e. placement, rules are shown by medium in our section C below. The BCAP (broadcasting) Code Section 32 includes scheduling rules for sensitive sectors such as alcohol and gambling. This August 2021 piece from Simmons & Simmons LLP In brief: media law and regulation in United Kingdom is a valuable covering of the regulatory ground in U.K. media. A recent development is the Directive 2018/1808 amends to the AVMS Directive extending scope online and delivering in particular new rules to video sharing platforms (VSPs), which include the identification of commercial communications where those exist. The UK legislation is here, Ofcom provider guidance as at December 2021 is here and a helpful piece from Taylor Wessing/ Lex in February 2022 is Obligations on video-sharing platforms to regulate advertising. From CAP News Jan 25, 2024 Put a smile on your Face(book) with responsible advertising is rather less strained than the header.
 

 

 

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International

SECTION A OVERVIEW

 

Updates since Nov 2022 (slimmed)
 

DLA Piper Global Influencer guide 

Coke's aspirational claims are not actionable

FKK&S/ Lex November 20, 2022

Meta’s Ad Practices Ruled Illegal Under E.U. Law. Jan

Proposal for a Directive on Green Claims

Cheat sheet EU Digital Acts April 23, 2023

Green Initiatives mainly in Europe April 2023

Our assembly of some key EU 'green' requirements

A brief guide to EU institutions. April 25, 2023

Self-regulation globally. FKK&S April 27, 2023

EASA Influencer Disclosure pan-Europe July 2023

EU Influencer Legal Hub. Posted October 2023

IAB Cookie Readiness report February 2024

CJEU rules on IAB's TCF. Hunton March 8, 2024

Council Influencer conclusions May 14, 2024

Bird & Bird on the above May 31, 2024

EASA Policy Newsletter May 21 2024 Topics Influencers, airlines greenwashing, ADR, EU elections 

IAB Europe commitments, policy principles 2024-29

Osborne Clarke Aug 29 commentary on above here 

IMCO September 2024 newsletter Sept 30, 2024

Emerging Advertising Law Issues in Asia Pacific 

GALA September 24, 2024 (Aus, India, Japan, NZ)

Quarterly report from Global Advocate Nov 22, 2024 Markets UK, France, Neths, China, EU

EASA Policy Newsletter November 22, 2024 Topics Health/alcohol/ WHO, Digital agenda, AVMSD & minors, Online harm, AI

* Recommended read 

New ICC Code September 19, 2024

Press release here and key changes here 

 French trans November 7, 2024, SW here

 

ISSUES/ NEWS/ COMMENTARY

 

EU to re-open, merge CSRD, CS3D & Taxonomy 

REP November 20, 2024

TEMU challenged by CPC network (FR)

EC Digital Fitness Check published Oct 3, 2024

Lewis Silkin on above here (scroll down)

Recycling claims mislead consumers:

legal analysis for EU & UK markets Client Earth Oct 2, 2024

 

AI

The AI Convention CSC Sept 12, 2024 here

EASA newsletter update AI legislation Aug 2024

AI is Everywhere - What about advertising?
BBB National Programs Aug 7, 2024 (audio)

AI Global Regulatory Update. Eversheds Sutherland Feb 22, 2024

EU AI Act: first regulation on artificial intelligence. June 2023

Visual summary of the EU's AI Act's risk levels here 

 

ENVIRONMENTAL CLAIMS/ INFORMATION/ DD

 

 Greenwashing Regulations in the Fashion Industry
White & Case Nov 25, 2024. FR, UK, US, DE, AUS

Greenwashing in the EU, France and the UK 

Addleshaw Goddard/ Lex November 11, 2024

 Hague Court of Appeal: Shell win 2nd round v Milieudefensie
Burges Salmon November 14, 2024 (see below)

Stichting Milieudefensie v. Shell. Freshfields November 6, 2024

The Hague becomes world’s first city to pass law banning fossil fuel-related ads

The UK Guardian September 13, 2024

 

There's an almost constant barrage of new and developing rules and regulations all around the world on this issue and especially in Europe, which is where we start. We think it's helpful first to distinguish between 'consumer' rules i.e. those that apply to business-to-consumer communications, and 'corporate' rules, which are those that apply to corporate 'ESG' reporting and financial services sector to investors, though the former ad rules will also apply to the financial sector when they advertise (the corporate reporting and due diligence rules don't per se apply in advertising, but we include them later so as to complete 'the green picture'). Anyway, consumer rules first as that's where most of our interests lie. In Europe, you need to be aware in particular of two directives driving the commercial communications elements of the 'Green deal' agenda:

 

1. The 'Empco' Directive 2024/825, full title and directive here, which was in force from March 2024, meaning that member states have until September 2026 to implement. Basically, and for our purposes, the Directive is an amendment of the seminal UCPD 2005/29/EC which forms the cornerstone of consumer protection rules in Europe. New environmentally-specific clauses are added to the 'blacklist' and e.g self-certification is banned. There's a good summary here from Taylor Wessing. Clauses are placed in our following content section B. 

 

2. The Green Claims Directive. The Commission pages on the proposed new law, which has new requirements for substantiation and verification of green claims, are here. The European Parliament is expected to reach final agreement before the end of 2024; there's likely to be an extended implementation period. A good June 2024 summary here from Freshfields Bruckhaus Deringer and EASA's update, also June 2024, here.

 

More lawyer commentary

 

Navigating the increasing scrutiny of green claims
Slaughter and May November 19, 2024. EU, UK. Audio

Standards for Claims of “Carbon Neutral” and “Climate Friendly” 

Formosan Brothers October 4, 2024

UK / EU / International ESG Regulation monthly round-up 
Hogan Lovells 
July 2024 pub'd Aug 9, 2024

Katjes 'Climate Neutral' & Green Claims Globally

Herbert Smith Freehills/ Lex July 10, 2024

 

Corporate & financial reporting and due diligence

 

CSDDD FAQs Proskauer October 4, 2024

FAQs on the implementation of the EU corporate sustainability reporting rules

From the Commission August 7, 2024. Ropes & Gray unpack them here

 

As this aspect of the green deal is not directly ad-related and as there's so much ground to cover, we've linked the information here

This analysis of the four key directives from White & Case July 8, 2024 is helpful in explaining their roles and see also Regulation Across Jurisdictions from Sidley Austin July 17, 2024 

  

INFLUENCER MARKETING 

 

Understanding consumer law when conducting influencer marketing
campaigns in the EU and UK.
BCLP October 7, 2024

 

This is a high profile and somewhat controversial (in regulatory terms) marketing technique that’s deployed right across the world. Most jurisdictions, in Europe at any rate, publish specific rules or guidelines, be they from statutory consumer protection authorities increasingly involved or, more frequently, self-regulatory organisations. The big and consistent issue is obviously identification when a post is an ad, when it's been incentivised in some way; less consistent is the way that authorities require that identification to be made, so check the rules/ guidelines in each country. A number including the US and Canada, Belgium, France, Italy, The Netherlands, Germany, Poland, Spain, Sweden, Australia and China have been assembled by the admirable DLA Piper in their Global Influencer Guide published 2022. For other international rules/ guidelines see ICPEN's Guidelines for Digital Influencers, which dates back to 2016 and the IAB's 2018 Content & Native Disclosure Good Practice Guidelines. August 7, 2024 GALA discuss ARPP's (French self-reg organisation) Certificate of Responsible Influence here and EASA's (the European self-regulatory network) expansion of that is set out here

 

The European Commission got interested some time ago and has issued various edicts/ hubs/ guidelines, as is its wont:

The Commission publish The Influencer Legal hub 'These resources are for anyone making money through creating social media content.' and 'The information in the Influencer Legal Hub reflects the position of the Consumer Protection Cooperation Network which adopted the 5 Key Principles on Social Media Marketing Disclosures.' On May 14, 2024, the EU Council  approved ‘Conclusions on ways to support influencers as online content creators in the EU.’ Bird&Bird on that here June 12.

 

The USA

 

In the US, the key rule maker is the FTC (Federal Trade Commission, a government agency), which issues a number of guidelines, the most important of which are:

 

Guides Concerning the Use of Endorsements and Testimonials in Advertising

Disclosures 101 for Social Media Influencers 

FTC Requirements For Influencers: Guidelines and Rules
Termly Feb 2, 2024 published FTC Requirements For Influencers: Guidelines and Rules,
a good summary by platform

 

In self-regulation, the National Advertising Division (NAD) of the Better Business Bureau (BBB) make available a number of cases here; the BBB's ad code is here, clause 30 Testimonials and Endorsements. The key issue, defined by FTC and deployed by NAD, is any 'material connection' between advertiser and influencer and the adequacy of its disclosure, which must be 'clear and conspicuous.' See the US 'general rules' database on this website for more.

 

India 

 

 ASCI's June 2021 Guidelines for Influencer advertising in digital media (link to a downloadable pdf). Additionally, from the CCPA's Guidelines for Prevention of Misleading Advertisements and Endorsements 2022 (CCPA guidelines): 14. Disclosure of material connection (the same term used by ASCI). 'Where there exists a connection between the endorser and the trader, manufacturer or advertiser of the endorsed product that might materially affect the value or credibility of the endorsement and the connection is not reasonably expected by the audience, such connection shall be fully disclosed in making the endorsement.' In January 2023 the Department of Consumer Affairs, who administer the Consumer Protection Act, issued 'Endorsement know-hows'  on when and how to disclose a 'material relationship.' Commentary from SS Rana/ Lex here. Additional Influencer Guidelines for Health and Wellness Celebrities, Influencers and Virtual Influencers August 10, 2023 by the Consumer Protection Authority (CCPA) is here. Summary of Influencer rules from Kan & Krishme/ GALA December 7, 2023 is here.

 

1. SELF-REGULATION: GENERAL RULES 
1.1 The ICC Code
 
The ICC Code is in the process of update May 2024. Expected 'second half 2024' :
 
This International sector provides largely self-regulatory rules that apply across several jurisdictions/ countries, so the content is the same under each country and product sector. For the time being, we are largely interpreting 'International' as Europe, though as the service expands, so will this section. The rules are primarily from the ICC, the International Chamber of Commerce, whose Advertising and Marketing Communications Code ('the Code'), the most recent version of which was announced in September 2024, underpins much of self-regulation worldwide.
 
Most countries feature national advertising self-regulatory codes which draw their main principles from the ICC Code, whilst a number of countries apply its provisions directlly - Belgium, Finland and Sweden, for example - so it can be regarded as a solid reflection of the regulatory picture across Europe and beyond. It would be very unlikely that any ICC rule would significantly differ from a specific country or sector clause addressing the same issue, but the latter may have more nuance or cultural context and will, of course, prevail as the principal source of regulation. So you can use these ICC rules in two ways: as a sound 'first pass' if you want a general picture of what you can or can't say across a number of countries, or as a surrogate for, and access to, countries that we don't currently cover and where rules may be inaccessible. The ICC provide several translations of their code (2024 to follow); ICAS, the International Council for Advertising Self-Regulation, list most if not all of the providers of self-regulation around the world. 
 
1.2 Guidance and EASA
 
Where the ICC is the principal source for 'umbrella' rules, another important source, in this case of advice and good practice, is EASA, the European Advertising Standards Alliance, which describes itself as the 'single authoritative voice on advertising self-regulation issues in Europe'. EASA's Best Practice Recommendations (BPRs) are valuable guidance on, for example, the distinction between paid and unpaid communications. These documents are placed and linked in relevant channels within the text in each country or can be found via the earlir llnk.
 
1.3 Structure and scope of the ICC Code

 

The latest ICC Code was published September 18, 2024 

 

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


ICC Guide for Responsible Mobile Marketing Communications

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

ICC Framework for Responsible Marketing Communications of Alcohol

ICC Resource Guide for Self-Regulation of Online Behavioural Advertising

ICC Framework for Responsible Environmental Marketing Communications (2021)

ICC Framework for Responsible Food and Beverage Marketing Communication

ICC International Code of Direct Selling

 

Key rules are set out in the following content section B and channel section C, as applicable

 

Children

 

  • Article 18 of the General Provisions of the ICC Code (2018) covers children and teens at some length. The new (Sept 2024) code adds a whole new chapter E on Children and Teens as well as articles 20 and 22 under General Provisions and  articles C5 and 17.8 under Chapter C, Data-driven Marketing, Direct Marketing, and Digital Marketing Communications
  • Also worthy of note is the International Consumer Protection Enforcement Network (ICPEN), a network of consumer protection agencies from over 60 countries, who publish Best Practice Principles for Marketing Practices Directed Towards Children Online (June 2020) 
  • On the home page of this website, you'll find a complete children's sector with the rules spelt out country by country 

 

Lawyer commentary 

Kids and Teens Online Safety and Privacy Roundtable

Baker Mckenzie July 26, 2023. Canada UK and USA. Video

EU: Two Key Decisions Highlight Issues When Handling Children's Data

Collyer Bristow/Lex 21 June, 2023

 

1.4 Sector and channel rules 

 

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

 

2. THE LAW
European Regulations and Directives

 

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

 

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

 

Issue or channel Key European legislation and clauses
Cookies
The EU ‘Cookies Directive’ 2009/136/EC
articles 5 and 7, which amended the E-Privacy Directive 2002/58/EC
Electronic coms. Consent and Information 
Articles 5 (3) and 13 
E-commerce; related electronic communications
Directive on electronic commerce 2000/31/EC of 8 June 2000 on certain legal aspects of information society services: http://data.europa.eu/eli/dir/2000/31/oj
Articles 5 and 6
Marketing Communications
Directive 2005/29/EC on unfair business-to-consumer commercial practices 
Articles 6, 7, 14 (amendments re comparative advertising), Annex I
December 2021 Commission guidance. See Omnibus Directive below; also amended by the Empco Directive see Environmental Claims section
Audiovisual media 

Directive 2010/13/EU concerning the provision of audiovisual media services (Audiovisual Media Services Directive; consolidated version)
http://data.europa.eu/eli/dir/2010/13/oj

Directive 2018/1808 extended some rules into especially video-sharing platforms 

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

Data Processing 

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

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

 

THE DMA AND DSA IN EUROPE

 

Two relatively recent arrivals in EU digital platform regulation are the Digital Markets Act (implemented May 2023), aka Regulation (EU) 2022/1925 and its implementing provisions; Commission explanatory pages here and the Digital Services Act, pages here (implemented Feb 2024 for all platforms) aka Regulation 2022 (EU) 2022/2065. The first, as the name implies, is the EU's means of reining in the major digital 'gatekeepers' to ensure 'fairer and more contestable' markets. Somewhat obviously, the rules are aimed at platforms rather than advertisers and agencies, though there are implications for behaviourally targeted advertising. The DSA's main goal 'is to prevent illegal and harmful activities online and the spread of disinformation.' Loosely, this is the EU's Online Safety Act.

 

Shaping The Future Of Tech: Latest Updates On The Digital Markets Act

Quinn Emanuel/ Lex October 10, 2024

 

DATA/ PRIVACY 

 

 Rules for data processing, consent and information in digital communications in Europe are shown above under the Directives table and in our channel section

See the US general rules on this database for privacy/ processing rules in that jurisdiction. Below are some key legal commentaries on this topic

 

Data Protection & Privacy: EU overview. Hunton Andrews Kurth July 3, 2024*

Data Protection update - August 2024. Stephenson Harwood/ Lex

Above covers Australia, China, EU, UK, USA

Consent or pay: one rule for some (large online platforms),

another rule for everyone else? Weil Gotshal & Manges 30/8/24

Meta’s Ad-Free Subscription Violates Competition Law

Adam Satariano NYT July 1, 2024

EDPB Opinion 8/2024 on Pay or Consent April 17. Lexia May 8

EDAA launches new solution to DSA ad transparency requirements

 

THE OMNIBUS DIRECTIVE

 

Report from the Commission to the European parliament and the Council on implementation

June 18, 2024. Commentary from Lewis Silikin July 9, 2024 here (See third entry)
 

Directive 2019/2161, known as the Omnibus Directive but more formally as (deep breath) Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules sets out new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour, and price reduction information under the Product Pricing Directive 98/6/EC. More directly related to this database, and potentially significant for multinational advertisers, is the clause that amends article 6 (misleading actions) of the UCPD adding ‘(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors’. Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here. Provisions were supposed to have been transposed and in force in member states by May 28, 2022, though there were several delays, now resolved.

 

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Sections B and C below set out the rules that are relevant to marketing communications from the directives above, together with the self-regulatory measures referenced under point 1 in this overview.

 

 

COMPENDIA, FORECASTS, VADE MECUMS 

 

As this is reference work rather than current, we have made it available in back-up here 

Advertising, Media and Brands Global Hot Topics Squire Patton Boggs Sept 16, 2024

 

 

 

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B. Content Rules

Sector

SECTION B CONTENT RULES

 

 

This section is longer than most. To help navigate it, some text is anchored and linked to respective headings immediately below
 
 
  1.1 Pressure to purchase
  1.2 Diet and lifestyle 
  1.3 HFSS product ad placement
  1.4 Nutrition and health claims 
  1.5 Promotional offers
  1.6 Licensed characters and celebrities
  2.1. Self-regulatory rules from CAP/BCAP 
  - Diet and lifestyle 
  - Nutrition and health claims
  - Comparative claims
  3.1 Food and children 
  3.2 General consumer protection
  3.3 CAP guidance
  4.1 Food and children
  4.2 General consumer protection measures 
  4.3 Placement of general and specific health claims
  7.1 Food Supplements
  7.2 Infant formulae and follow-on formulae
  7.3 Foods for use in energy-restricted diets for weight reduction 
        ‘Slimming Products’ self-regulatory requirements
        Guidance 
  7.4 Added vitamins and minerals
 

 

The graphic below, stolen from here, is part of a useful CAP Overview of HFSS placement and content restrictions:

 

 

 
 

1. FOOD AND CHILDREN RULES SHARED BY CAP AND BCAP

 

We have amalgamated the CAP AND BCAP rules for simpler understanding. In some cases, the terms ‘advertising’ and ‘marketing communications’ are merged to be ‘marcoms’, as that is the term we use throughout Europe. Note on CAP and BCAP terms here In general, BCAP uses the term ‘advertising’ as they regard it as best describing paid-for third party provided media. The CAP Code applies to ‘Marketing communications’. This is intended to encompass ‘advertising’ but also non-advertising channels, principally promotional marketing on pack or at point of sale. This distinction matters because CAP specifically excluded these aspects from the new HFSS rules (15.14, 15.15 and 15.18) applying them only to ‘advertising’ as it is understood by the CAP Code. The rest of the CAP Code refers to ‘marketing communications’.

 

1.1 Pressure to purchase

 

  • Although children might be expected to exercise some preference over the food they eat or drink, advertisements must be prepared with a due sense of responsibility and must not directly advise or ask children to buy or to ask their parents or other adults to make enquiries or purchases for them (CAP 15.16 and BCAP (television only) 13.12
  • Advertisements must neither try to sell to children by appealing to emotions such as pity, fear, loyalty or self-confidence nor suggest that having the advertised product somehow confers superiority, for example making a child more confident, clever, popular or successful (CAP 15.16.1 and BCAP 13.12.3)
  • Advertisements addressed to children must not urge children to buy or persuade others to buy and must avoid high-pressure or hard-sell techniques. Neither the words used nor the tone of the advertisement should suggest that young viewers could be bullied, cajoled or otherwise put under pressure to acquire the advertised item (CAP 15.16.2 and BCAP 13.12.4)
  • If an advertisement for a children’s product contains a price, the price must not be minimised by the use of words such as ‘only’ or ‘just’. BCAP 13.12.5; the equivalent CAP rule is: ‘Products or prices must not be presented in marketing communications in a way that suggests children or their families can easily afford them’ (CAP 15.16.3)
  • Advertisements must not imply that children will be inferior to others, disloyal or will have let someone down, if they or their family do not buy, consume or use a product or service (BCAP 13.12.2)
  • Nothing in an advertisement may seem to encourage children to pester or make a nuisance of themselves (BCAP 13.12.1)          

 

1.2 Diet and lifestyle

 

  • Marketing communications must not condone or encourage poor nutritional habits or an unhealthy lifestyle in children (CAP 15.11)               
  • Marketing communications must not disparage good dietary practice or the selection of options, such as fresh fruit and fresh vegetables, that accepted dietary opinion recommends should form part of the average diet (CAP 15.12)

 

1.3 HFSS product ad placement

 

  • HFSS product advertisements must not be directed at people under 16 through the selection of media or the context in which they appear. No medium should be used to advertise HFSS products, if more than 25% of its audience is under 16 years of age​ (CAP 15.18)

 

1.4 Nutrition and health claims

               

  • Television only – No nutrition or health claim may be used in HFSS product advertisements targeted directly at pre-school or primary school children. For the avoidance of doubt, claims referring to children’s development or health are acceptable in non-HFSS product advertisements, if those claims are authorised by the European Commission (BCAP 13.11)
  • Claims referring to children’s development or health are acceptable in radio food or soft drink product advertisements if those claims are authorised by the European Commission (BCAP 13.15 for Radio, CAP 15.17 for non-broadcast) 

 

1.5 Promotional offers

 

  • Promotional offers must be used with a due sense of responsibility (CAP 15.13) Television only: they may not be used in HFSS product advertisements targeted directly at pre-school or primary school children (BCAP 13.9)
  • HFSS product advertisements that are targeted through their content directly at pre-school or primary school children must not include a promotional offer (CAP 15.14)

 

Additionally, for children under 16:

 

  • Except those for fresh fruit or fresh vegetables, marketing communications must not seem to encourage children to eat or drink a product only to take advantage of a promotional offer: the product should be offered on its merits, with the offer as an added incentive. Marketing communications featuring a promotional offer must ensure a significant presence for the product (CAP 15.14.1)
  • Marketing communications featuring a promotional offer linked to a food product of interest to children must avoid creating a sense of urgency or encouraging the purchase of an excessive quantity for irresponsible consumption (CAP 15.14.2, BCAP 13.9.1)
  • Advertisements for collection-based promotions must not seem to urge children or their parents to buy excessive quantities of food. They must not directly encourage children only to collect promotional items, emphasise the number of items to be collected or create a sense of urgency. If a promotional offer can also be bought, that must be made clear. Closing dates for collection-based promotions must enable the whole set to be collected without having to buy excessive or irresponsible quantities of the product in a short time (BCAP 13.9.3)
  • Advertisements must not seem to encourage children to eat or drink a product only to take advantage of a promotional offer: the product should be offered on its merits, with the offer as an added incentive. Advertisements featuring a promotional offer should ensure a significant presence for the product (BCAP 13.9.2)
  • Advertisements must not encourage children to eat more than they otherwise would (CAP 15.14.3, BCAP 13.9.4) The notion of excessive or irresponsible consumption relates to the frequency of consumption as well as the amount consumed (BCAP)

 

Radio only

 

  • Promotional offers to children must be used with a due sense of responsibility. They may not be used in food or soft drink product advertisements targeted directly at pre-school or primary school children; that prohibition does not apply to advertisements for fresh fruit or fresh vegetables
  • Advertisements that contain a promotional offer linked to a food or drink product of interest to children must neither seem to encourage children to eat or drink a product only to take advantage of a promotional offer nor create a sense of urgency
  • If a promotional item can also be bought, that must be made clear. Closing dates for collection-based promotions must enable the whole set to be collected without having to buy excessive or irresponsible quantities of the product in a short time (BCAP 13.13)

 

1.6 Licensed characters and celebrities

These are defined as ‘characters that are borrowed equities and have no historical association with the product.’

 

  • Licensed characters and celebrities popular with children must be used with a due sense of responsibility. HFSS product advertisements that are targeted directly at pre-school or primary school children through their content must not include licensed characters or celebrities popular with children
  • For the avoidance of doubt, that prohibition applies to food or drink advertisements only. The prohibition does not apply to advertiser-created equity brand characters (puppets, persons or characters), which may be used by advertisers to sell the products they were designed to sell
  • Licensed characters and celebrities popular with children may present factual and relevant generic statements about nutrition, safety, education or similar (all bullet points above CAP 15.15 and BCAP13.10; this rule also applies to Radio under BCAP 13.14)

 

 

2.1. Self-regulatory rules from CAP/BCAP for all food and drink products

 

These have been amalgamated from CAP and BCAP. In the event of minor differences, or where some apply only to TV or to Radio, we show them separately

 

CAP non-broadcast rules:

https://www.asa.org.uk/type/non_broadcast/code_section/15.html

And BCAP broadcast rules:

https://www.asa.org.uk/type/broadcast/code_section/13.html

 

Diet and lifestyle

 

Marcoms for any food products should not undermine progress towards national dietary improvement by misleading or confusing consumers or by setting a bad example, especially to children (i.e. persons under the age of 16), and:

 

  • Marketing communications must not disparage good dietary practice or the selection of options, such as fresh fruit and fresh vegetables, that accepted dietary opinion recommends should form part of the average diet (15.12 CAP)
  • Comparisons between foods must not discourage the selection of options such as fresh fruit and fresh vegetables, which generally accepted dietary opinion recommends should form a greater part of the average diet. Advertisements must not disparage good dietary practice. No advertisement should suggest that a balanced and varied diet cannot provide adequate nutrients in general (13.5 BCAP)
  • Make claims about a child's development and health, unless authorised by the European Commission (15.17 CAP and 13.15 BCAP (Radio only)). Such claims relating to HFSS foods are completely prohibited in TV if targeted directly at pre-school or primary school children (13.11 BCAP)
  • Claim to treat clinical vitamin or mineral deficiency (15.9 CAP)

 

Nutrition and health claims

 

  • Marketing communications that contain nutrition or health claims must be supported by documentary evidence to show they meet the conditions of use associated with the relevant claim, as specified in the EU Register. (Advertisements must not give a misleading impression of the nutrition or health benefits of the product as a whole and factual nutrition statements should not imply a nutrition or health claim that cannot be supported). Claims must be presented clearly and without exaggeration (Italicised section from BCAP, otherwise shared; CAP 15.1 and BCAP 13.4.2)
  • Only nutrition claims listed in the updated Annex of the EU Regulation, as reproduced in the EU Register, may be used in marketing communications (CAP 15.1.1, BCAP 13.4. and 13.4.1)
  • Only health claims listed as authorised in the EU Register, or claims that would have the same meaning to the consumer, may be used in marketing communications (CAP 15.1.1, BCAP 13.4). From the Register: ‘Some flexibility of wording of the claim is possible provided its aim is to help consumer understanding, taking into account factors such as linguistic and cultural variations and the target population. Adapted wording must have the same meaning for the consumer as the authorised claim in the EU Register’ (italics added)
  • References to general benefits of a nutrient or food for overall good health or health-related well-being are acceptable only if accompanied by a specific authorised health claim (CAP 15.2, BCAP 13.4.3)
  • Claims referring to children's development and health are acceptable if authorised by the European Commission (CAP 15.17, BCAP 13.15 Radio only). Such claims relating to HFSS foods are completely prohibited on TV if targeted directly at pre-school or primary school children (13.11 BCAP)
  • Marketing communications must not condone or encourage excessive consumption of a food (CAP 15.4, BCAP 13.3)
  • Marketing communications must not condone or encourage damaging oral health care practices, especially in children (CAP 15.5, BCAP 13.2.1)
  • Advertisements must avoid anything likely to condone or encourage poor nutritional habits, or an unhealthy lifestyle, especially in children (BCAP 13.2)

 

Requirements from CAP and BCAP codes based on Regulation 1924/2006

 

The following are not acceptable (CAP 15.6.1 to 15.6.6 and BCAP 13.6.1. to 13.6.5):

 

  • Claims that state or imply health could be affected by not consuming a food
  • Claims that state or imply a food prevents, treats or cures human disease. Reduction-of disease-risk claims are acceptable if authorised by the European Commission
  • Health claims that refer to the recommendation of an individual health professional. Health claims that refer to the recommendation of an association are acceptable only if that association is a health-related charity or a national representative body of medicine, nutrition or dietetics
  • References to changes in bodily functions that could give rise to or exploit fear in the audience
  • Claims of a nutrition or health benefit that gives rise to doubt the safety or nutritional adequacy of another product (this rule is found under 13.4.4. in the BCAP Code)
  • Health claims that refer to a rate or amount of weight loss

 

Comparative claims

 

  • Comparisons between foods must not discourage the selection of options such as fresh fruit and fresh vegetables, which generally accepted dietary opinion recommends should form a greater part of the average diet. Advertisements must not disparage good dietary practice. No advertisement should suggest that a balanced and varied diet cannot provide adequate nutrients in general (BCAP 13.5.CAP’s version of this rule is under 15.12, Children/ Diet and Lifestyle)
  • Comparative nutrition claims must compare the difference in the claimed nutrient to a range of foods of the same category which do not have the composition that allows them to bear a nutrition claim (CAP 15.3, BCAP 13.5.1)
  • A marketing communication may use one product as the sole reference for comparison only if that product is representative of the products in its category (CAP 15.3.1, BCAP 13.5.2)
  • The difference in the quantity of a nutrient or energy value must be stated in the marketing communication and must relate to the same quantity of food (CAP 15.3.2, BCAP 13.5.3)

 

 

3.1 Food and children-related guidance

 

Channel

 

 

3.2 General consumer food law-related guidance

 

 

3.3 CAP guidance

 

 

3.4 Clearcast

 

Clearcast’s Notes of Guidance provide interpretation/ help on particular topics such as flavours and energy claims

 

 

 

'Rulings are precedents that give a strong indication of what the ASA considers acceptable or otherwise. Marketers might use them as the basis for approaches they take in ads'

 

4.1.  Food and children

 

Authorised claims

 

  • Use health and nutrition claims correctly: claims referring to children's development and health are only acceptable if listed as authorised on the EU register. The ASA ruled against a website which made the general health claim ‘Honey goodness’ but did not include a specific authorised health claim: Halo Foods Ltd, 31 December 2014
  • Kellogg’s Special K TV: a visual of a pregnant woman swimming was accompanied by large on-screen text, which stated “made with Folic Acid feeding development”. Small text at the bottom of the screen stated 'A serving of Special K cereals contains folic acid contributing to maternal tissue growth during pregnancy'. The ASA concluded that the claim 'made with folic acid feeding development', in the context of the ad, did not retain the meaning of the authorised health claim and exaggerated the health benefits of the product. In breach. 6 March 2019

Diet and lifestyle

 

Excess consumption

 

  • Ads which are likely to appeal to children may feature the product being consumed, provided consumption is not excessive and the ad does not condone or encourage poor nutritional habits or an unhealthy lifestyle, or disparage good dietary practice:

 

 

Licensed characters

 

  • Do not use licensed characters in HFSS ads where the content targets under 12s
  • In addition to the placement restrictions on HFSS ads, additional content restrictions apply where the ad directly targets pre-school or primary school children (under-12s) through the content. In those circumstances, the use of licensed characters and celebrities popular with children is prohibited (Rule 15.15)
  • This prohibition does not apply to non-HFSS product ads or characters which are owned by the brand itself (‘equity brand characters’)
  • Under a previous version of rule 15.15 where the prohibition applied to all food except fresh fruit and vegetables, a confectionery manufacturer’s website which had content, including interactive games, aimed at young children was found to breach the Code because it featured the licensed character Scooby Doo (Swizzels Matlow Ltd, 29 August 2012)

 

Pester power

 

  • Exploitation of children’s credulity or encouragement of ‘pester power’
  • Children’s credulity or vulnerability must not be exploited in ads nor should they be exhorted to make purchases or ask their parents or other adults to make purchases for them
  • An advergame app which used language with a persuasive and negative tone to imply that players would miss out on parts of its functionality, and would not be able to perform as well in the games unless they scanned a QR code, was found to exploit children’s credulity and vulnerability and was considered likely to make them feel inferior if they did not eat, buy or encourage their parents to buy the product Weetabix Ltd, 13 February 2013

 

4.2. General consumer protection measures

 

These are a necessarily limited selection. Listings from a ‘Food’ search in rulings are here:

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

 

Antioxidants

 

  • The ASA has ruled that, because the term ‘antioxidant’ refers to the function of a substance on the body, it is a specific health claim (PepsiCo International Ltd, 8th January 2014). As such, it must use the wording in the EU Register of authorised claims (in this case ‘Vitamin C contributes to the protection of cells from oxidative stress’ or adapted wording that will have the same meaning to consumers. CAP’s advice note on the issue has the details:
    http://www.cap.org.uk/Advice-Training-on-the-rules/Advice-Online-Database/Antioxidants.aspx#.VKzuPoqsWX1

 

Health claims

 

 

'Natural ingredients'

 

 

‘Good natural food’

 

 

The environment 

 

  • Innocent Drinks case February 2022. Complaint relating to 'greenwashing' claim upheld. Defense was that ambition is permissible ('Small drinks, big dreams'). Key extract from the case: 'Because we considered that the ads would be understood to mean that Innocent was environmentally friendly and that purchasing their products had environmental benefits, we needed to see evidence that was the case. Although we acknowledged that Innocent were undertaking various actions which were aimed at reducing the environmental impact of their products, that did not demonstrate that their products had a net positive environmental impact over their full lifecycles. We also noted that their drinks bottles included non-recycled plastic and that the extraction of raw materials and subsequent processing of those materials in order to produce the bottle would have a negative impact on the environment.' Drum story here 
  • Significant ruling against Oatly milk January 26, 2022. Key extract: 'Because the claim would be understood by consumers as based on equivalent and full life cycle analyses when that was not the case, we considered the claim was misleading. We acknowledged that Oatly had told us the claim wouldn’t be repeated. Also, they had amended a similar claim on their website to make clear the nature of the comparison, which we considered was unlikely to mislead consumers because it contained a comprehensive explanation of the comparison'; and Lipton Ice Tea January, 2022 relating to a '100% re-cycled' claim and the qualification that excluded cap and label

 

Social responsibility / offense

 

This is included because it’s a high profile confectionery commercial for Maltesers featuring a disabled person; it makes ‘mild’ sexual reference, and was challenged as being inappropriate for children especially. The complaint was not upheld. September 2019 ruling here; commercial here. And in April 2022, this poster for Re:nourish soup was found to be 'likely to cause serious offence to some people.' Ruling here

 

4.3 Placement of general and specific health claims

 

  • ASA adjudication on Kellogg’s Special K TV commercial for Special K porridge and claims on the website www.specialk.co.uk. This is a good example of how the Codes are applied in the context of the 1924/2006 Regulation, and how specific health claims should appear next to or immediately following the general health claim. It also confirms that clearance by Clearcast doesn’t mean compliance
  • Dextro Energy Glucose tablets: ruling against important because of a) the interpretation of the health claim and b) that the ad had been seen by the CAP advice team. The ad itself is not available but we have found an image online that looks as if it may have been used in the ad. Here’s the ruling:
    https://www.asa.org.uk/rulings/dextro-energy-gmbh---co-kg-a18-452116.html

 

 

For a European self-regulatory position, see the ICC’s Framework for Responsible Food and Beverage Marketing Communications. This is a framework, rather than a set of rules per se, and shows how general ICC rules can be applied to Food and Beverage communications

 

 

6.1 Food Information to consumers
Regulation 1169/2011 on the provision of food information to consumers

This is retained legislation in the U.K. Enforcement provisions in FIR 2014

 

Article 7 of the Regulation. Fair information practices:

 

  1. Food information shall not be misleading, particularly:

 

  1. As to the characteristics of the food and, in particular, as to its nature, identity, properties, composition, quantity, durability, country of origin or place of provenance, method of manufacture or production
  2. By attributing to the food effects or properties which it does not possess
  3. By suggesting that the food possesses special characteristics when in fact all similar foods possess such characteristics, in particular by specifically emphasising the presence or absence of certain ingredients and/or nutrients
  4. By suggesting, by means of the appearance, the description or pictorial representations, the presence of a particular food or an ingredient, while in reality a component naturally present or an ingredient normally used in that food has been substituted with a different component or a different ingredient
     
  5. Food information shall be accurate, clear and easy to understand for the consumer
  6. Subject to derogations provided for by Union law applicable to natural mineral waters and foods for particular nutritional uses, food information shall not attribute to any food the property of preventing, treating or curing a human disease, nor refer to such properties
  7. Paragraphs 1, 2 and 3 shall also apply to:

 

  1. Advertising
  2. The presentation of foods, in particular their shape, appearance or packaging, the packaging materials used, the way in which they are arranged and the setting in which they are displayed.

 

 

6.2 Nutrition and Health claims

Regulation 1924/2006 on nutrition and health claims made on food. Regulations are directly applicable in member states; this is retained legislation in the U.K.

 See the Great Britain Nutrition and Health Claims register (Jan 2021) and the accompanying Nutrition and health claims: guidance to compliance with Regulation (EC) 1924/2006 (Jan 2021)

 

  • Because of the length of this Regulation we only show below reference to the clauses that are relevant to marcoms
  • Nutrition claims are listed in the Annex to Regulation 1924/2006 linked above

 

Article 3: General principles for all claims​

Article 5: General conditions

Article 6: Scientific substantiation for claims

Article 9: Comparative claims

Article 10: Health claims; specific conditions

Article 12: Restrictions on the use of certain health claims

Article 13: Health claims other than those referring to the reduction of disease risk and to children's development and health

Article 14: Reduction of disease risk claims and claims referring to children's development and health

List of health claims

 

Regulation 432/2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. The annex of the Regulation sets out the claims and the conditions under which they can be made

 

UK Food Information Regulations

 

From 13 December 2014, the Food Information Regulations 2014 ('FIR') came into effect, replacing the Food Labelling Regulations 1996. The main purpose of 'FIR' is to implement enforcement provisions related to Regulation 1169/2011 on the provision of food information to consumers; which is retained legislation in the U.K. 'Explanatory memorandum' (or so it claims) on FIR here. Note also the Food Information (Amendment) (England) Regulations 2020; explanatory memorandum re country of origin requirements here.

 

 

7.1. Food Supplements
Applicable legislation and self-regulation

 

 

Core marcoms rules

 

  • Article 7 FSD: The labelling, presentation and advertising of food supplements shall not include any mention stating or implying that a balanced and varied diet cannot provide appropriate quantities of nutrients in general
  • No person shall sell any food supplement which is ready for delivery to the ultimate consumer or to a catering establishment if the labelling, presentation or advertising of that food supplement includes any mention, express or implied, that a balanced and varied diet cannot provide appropriate quantities of nutrients in general (Art. 6.4 FSR)
  • The labelling, presentation and advertising must not attribute to food supplements the property of preventing, treating or curing a human disease, or refer to such properties (Art. 6.2. FSD)
  • The above clause does not appear to be explicitly implemented by FSR; this claim or attribution is anyway prohibited under article 7 (3) of Regulation 1169/2011, directly applicable in member states
 

Self-regulation

 

  • CAP/BCAP advise marketers to ensure that claims made for dietary supplements and other vitamins and minerals are in line with the requirements of the EU Regulation
  • Nutrition and health claims for food supplements must be permitted or authorised as provided for at rule 15.1.1 above (CAP 15.7, BCAP 13.7.1, which references 13.4 in the same context)
  • CAP 15.1.1/ BCAP 13.4: Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) may be used in marketing communications. nutrition_claims_en.htm. Only health claims listed as authorised in the EU Register, or claims that would have the same meaning to the consumer may be used in marketing communications authorised_health_claims_en.htm. See the Great Britain Nutrition and Health Claims register (Jan 2021) and the accompanying Nutrition and health claims: guidance to compliance with Regulation (EC) 1924/2006 (Jan 2021) 
  • Marketers must not state or imply that a balanced or varied diet cannot provide appropriate quantities of nutrients in general. Individuals should not be encouraged to swap a healthy diet for supplementation, and without well-established proof, no marketing communication may suggest that a widespread vitamin or mineral deficiency exists (CAP 15.8, BCAP 13.7.)
  • Marketing communications for foods must not claim to treat clinical vitamin or mineral deficiency (CAP 15.9)

  • CAP issued Food supplements, COVID-19 and the immune system, 17 Jul 2020. This reminds advertisers of the prohibition of fads that state or imply that a food, drink or food ingredient can prevent, treat or cure human disease.

 

7.2. Infant formulae and follow-on formulae

 

Applicable legislation and self-regulation 

 

  • Regulation 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control: foods for specific groups: 'FSG Regulation' (Arts. 9 (5) and 10)
  • Delegated Regulation 2016/127 of 25 September 2015 supplementing Regulation (EU) No 609/2013; arts. 10 and 11
  • Directive 2006/141/EC shall continue to apply until 21 February 2021 to infant formula and follow-on formula manufactured from protein hydrolysates
  • Self-regulation: CAP Section 15BCAP Section 13

 

Article 10 FSG Regulation 609/2013

Additional requirements for infant formula and follow-on formula
 
  1. The labelling, presentation and advertising of infant formula and follow-on formula shall be designed so as not to discourage breast-feeding
  2. The labelling, presentation and advertising of infant formula, and the labelling of follow-on formula shall not include pictures of infants, or other pictures or text which may idealise the use of such formulae
Without prejudice to the first subparagraph, graphic representations for easy identification of infant formula and follow-on formula and for illustrating methods of preparation shall be permitted

 

Article 10 Delegated Regulation 2016/127

Requirements for promotional and commercial practices for infant formula

 

  1. Advertising of infant formula shall be restricted to publications specialising in baby care and scientific publications. Member States may further restrict or prohibit such advertising. Such advertising shall contain only information of a scientific and factual nature. Such information shall not imply or create a belief that bottle-feeding is equivalent or superior to breast feeding
  2. There shall be no point-of-sale advertising, giving of samples or any other promotional device to induce sales of infant formula directly to the consumer at the retail level, such as special displays, discount coupons, premiums, special sales, loss-leaders and tie-in sales
  3. Manufacturers and distributors of infant formula shall not provide, to the general public or to pregnant women, mothers or members of their families, free or low-priced products, samples or any other promotional gifts, either directly or indirectly via the health care system or health workers
  4. Donations or low-price sales of supplies of infant formula to institutions or organisations, whether for use in the institutions or for distribution outside them, shall only be used by or distributed for infants who have to be fed on infant formula and only for as long as required by such infants

 

Self-regulation

 

How to ensure your formula milk advertising does not break the rules
CAP News 24 Oct 2024

 

  • These rules must be read in conjunction with the relevant legislation including the Infant Formula and Follow-on Formula Regulations 2007 (as amended) and the EU Regulation (CAP and BCAP intro)
  • Except for those in a scientific publication or, for the purposes of trade before the retail stage, a publication of which the intended readers are not the general public, marketing communications for infant formula are prohibited (CAP 15.10; BCAP 13.8 prohibits entirely)
  • Marketing communications must not confuse between infant formula and follow-on formula (CAP 15.10.1, BCAP 13.8.1)
  • See August 2021 ASA ruling against Kendamil, which transgressed with at least three claims, two of which are above, on its website 
  • See also the Nutricia/ Cow&Gate ruling of February 2022, which transgressed in confusing infant and follow on formulae and making an unauthorised health claim 
  • And finally see the ASA ruling on Kendal Nutricare (t/a Kendamil, as above) April 5, 2023; the ad 'made disease treatment claims for a food.'

 

7.3. Foods for Use in Energy-Restricted Diets for Weight Reduction 

 

Applicable legislation and Self-Regulation

 

  • Regulation 609/2013 covers total diet replacement for weight control (Foods for specific groups 'FSG Regulation') Relevant article 9 (5) FSG). Sets general compositional and information rules for these products
  • Delegated Regulation 2017/1798 supplements Regulation 609/2013 on the specific compositional and information requirements for total diet replacement for weight control; does not apply until October 27, 2022
  • Re: ‘Meal replacement products’, the compositional and information requirements are regulated by the EU food framework applicable to 'normal' food, particularly the Nutrition and Health Claims Regulation 1924/2006; see recital 43 FSG 
  • Self-Regulation: BCAP Section 12CAP Section 13

Key advertising-related clauses

 

Total diet replacement products

 

  • The ‘broader’ FSG rules are set out under FSG article 9, the most significant clause being 5: The labelling, presentation and advertising of food referred to in Article 1(1) (includes total diet replacement for weight control) shall provide information for the appropriate use of such food, and shall not mislead, or attribute to such food the property of preventing, treating or curing a human disease, or imply such properties
  • The delegated Regulation 2017/1798 linked above (does not apply until October 2022) carries the more specific requirements for these products. The key article is article 4. See the linked file for the full article; the key clause is 3: the labelling, presentation and advertising of total diet replacement for weight control products shall not make any reference to the rate or amount of weight reduction which may result from its use
  • The above prohibition is covered in the meantime under Restrictions on the use of certain health claims, Article 12 Regulation 1924/2006 on nutrition and health claims made on food
  • Additionally, article 6 (of 2017/1798) re Nutrition and health claims:

 

  • 1. Nutrition and health claims shall not be made on total diet replacement for weight control products
  • 2. By way of derogation from paragraph 1, the nutrition claim ‘added fibre’ may be used for total diet replacement for weight control products provided that the dietary fibre content of the product is not less than 10 g

 

Meal replacement products

 

Recital 43 FSG Reg establishes that rules on the use of statements on meal replacement products should be regulated solely under Regulation 1924/2006 on Nutrition and Health Claims. Article 20 (3) FSG Reg confirms that Directive 96/8/EC shall not apply from 20 July 2016 to foods presented as a replacement for one or more meals of the daily diet. This means that:

 

  • Claims which make reference to the rate or amount of weight loss will (continue) not (to) be allowed (Art. 12 (b) Reg. 1924/2006)
  • See article 13 Reg 1924/2006 linked above for the conditions under which health claims might be made

 

Self-regulation 

 

‘Slimming Products’ self-regulatory requirements

 

This category is defined as: “weight-control and slimming foodstuffs, aids (including exercise products that make weight-loss or slimming claims), clinics and other establishments, diets, medicines, treatments and the like. If applicable, they must comply with Section 11: medicines, medical devices, treatments and health or Section 13: food, food supplements and associated health or nutrition claims. We have extracted those rules that are concerned with food products:

 

Marcoms for foodstuffs that are marketed as part of a weight-control, dieting or slimming regime must:

  • Make clear that the products merely help weight loss as part of a calorie-controlled or energy-controlled diet (12.10 BCAP)

 

And must not:

  • Health claims in food product marcoms that refer to a rate or amount of weight loss are not permitted (BCAP 12.8, CAP 13.10.1)
  • Any claim made for the effectiveness or action of a weight-reduction method or product must be backed, if applicable, by rigorous trials on people; testimonials that are not supported by trials do not constitute substantiation (CAP 13.1)
  • 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 12.2)
  • Promise or predict specific weight loss (12.7 BCAP)
  • Encourage indiscriminate or excessive use of a weight-control slimming product or service (12.4 BCAP)
  • Address those aged under 18, feature anyone whose example people under 18 are likely to follow or use creative treatments likely to appeal to people under 18. (Note this does not apply to calorie-reduced or energy-reduced foods and drinks, provided the product is not portrayed as part of a slimming regime and the advertisement does not use the theme of slimming or weight control (12.5 BCAP)
  • Be targeted directly at individuals with a body mass index of 30 or above (obesity) or use testimonials or case histories referring to subjects who were or seemed to be obese before using the product (12.11 BCAP)
  • Imply or state that being underweight is acceptable or desirable. If they are used, testimonials or case histories must not refer to subjects who are or seem to be underweight. Underweight, for the purpose of this rule, means a Body Mass Index below 20 (12.12 BCAP)

 

Guidance

 

  • From 12 Jan 2017 ‘Getting your weight loss food ads in shape’; non- broadcast Advertising Guidance on making slimming and weight loss claims in ads
    https://www.asa.org.uk/asset/185BF9A5-D485-4B9A-A12241E85F124B63/ 
  • CAP also issued in April 2016 ‘A weighty subject on food’ guidance note, which made the following points on weight loss programmes: You don’t need to be exclusively advertising a food product for the Food rules to apply, as illustrated in the ruling on Jane Plan Ltd.  The application of the Food rules for an ad promoting a weight-loss programme which includes other elements as well as food, will depend on whether claims are linked totally or partly to the food element, the context in which the claim appears and how it is presented. You can read more about this in the DoH’s guidance.’ See 4.4
  • CAP’s Advice Online article outlines the position on different types of claims for Weight control; Food and Food Supplements:
    https://www.asa.org.uk/advice-online/weight-control-food-and-food-supplements.html

 

 

7.4. Added vitamins and minerals

 

 

 

 

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

 

 

EU Pledge Implementation guidance is here. This shows guidance in detail and by channel. Point 2 covers creative execution in some depth

 

 

 

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Read more

General

SECTION B CONTENT RULES

 

 

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

 

  1. SELF-REGULATION: THE CAP AND BCAP CODES

1.1. Recognition of advertising/ marketing communications

1.2. Misleadingness

1.2.8. Comparisons

Comparisons with Identifiable competitors

Other comparisons

Price comparisons

Imitation and denigration

1.2.9. Endorsements and testimonials

1.3. Harm and offence
Health/ safety
Social responsibility

Gender stereotyping

1.4. Environmental claims

  1. LEGISLATION IN ADVERTISING (Content)

2.1. CPRs and BPRs/ Unfair Commercial Practices Directive

2.2. Ofcom Broadcasting Code/ AVMS Directive

2.3. Pricing

 

1. SELF-REGULATION

 

The scope of the CAP code is here and BCAP here

 

1.1. Recognition of marketing communications

CAP Code Section 2

 

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

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

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

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

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

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

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

 

BCAP Code, Section 2: Recognition of advertising

 

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

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

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

  • Television advertisements, except for programme promotions must not:
     

  • Refer to themselves in a way that might lead viewers to believe they are watching a programme
  • Feature, visually or orally, anyone who currently and regularly presents news or current affairs on television
  • Include extracts from broadcasts of parliamentary proceedings (rule 2.4)
     
  • Radio only: A person who currently and regularly reads the news on radio or television may voice radio advertisements but must not advertise products or services that are likely to be seen to compromise the impartiality of their news-reading role (rule 2.5)

 

 

 

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

 

1.2.1. General

 

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

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

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

 

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

 

1.2.2. Substantiation

 

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

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

  • The Best Guide to Objective vs Subjective Claims in the Universe. CAP News, 22 Oct 2020
  • Claims for the content of non-fiction publications should not exaggerate the value, accuracy, scientific validity or practical usefulness of the product. Note: For the purposes of the CAP Code, product means goods, services, ideas, causes, opportunities, prizes or gifts. Marketers must ensure that claims that have not been independently substantiated but are based merely on the content of a publication do not mislead consumers (CAP Code, rule 3.8). CAP has published a Help Note on the Marketing of Publications.

 

Example rulings

 

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

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

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

 

 

Misleading omissions

 

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

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

 

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

 

  • The main characteristics of the product

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

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

  • Delivery charges

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

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

 

Example rulings

 

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

     

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

     

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

 

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

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

 

1.2.3. Qualifications

 

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

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

 

 

 

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

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

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

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

 

Example rulings

 

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

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

 

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

 

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

 

1.2.5. Prohibited claims

 

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

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

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

 

1.2.6. Pricing 

 

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

 

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

 

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

 

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

 

Ensure prices match the product shown

 

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

 

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

 

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

 

Additional CAP advertising guidance

 

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

Retailers’ Price Comparisons February 2013

 Lowest Price Claims and Price Promises February 2013

Availability September 2016

 

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

 

1.2.7. Free

 

Principle

 

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

 

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


 

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

 

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

 

 

Guidance

 

  • An extensive Advertising Guidance note on the use of Free Claims is published jointly by CAP and BCAP, last revised September 2010. This includes, for example, the difference between a ‘conditional purchase offer’ and a ‘package’.
  • Keep your “free” claims problem-free. CAP News 22 October 2020 and issued again September 30, 2021. Covers pure ‘free’ claims, ‘Conditional purchase’ promotions (Marketers are allowed to use the term 'free' in situations where receiving a free product or service is contingent on consumers purchasing another item - provided the quality of the paid-for item has not been reduced, and the paid-for item’s price has not been increased to cover the cost of supplying the free item) and Package Offers, with links to other guidances on the topic and some relevant rulings

 

Rulings search ‘free’

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

 

Example ruling

 

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

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

 

 

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.

 

Imitation and denigration

 

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

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

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

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

 

Rulings search ‘Denigration’

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

 

 

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

 

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

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

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

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

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

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

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

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

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

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

 

Rulings search ‘Endorsements and testimonials’

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

 

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

 

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

 

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

Health/ safety

 

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

Social responsibility

 

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

 

Advertising guidance on social responsibility

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

 

 

 

Rulings search ‘Offense’

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

 

Some rulings

 

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

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

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

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

 

 

The 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

 

2.2 Ofcom Broadcasting Code/ AVMS Directive

 

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

 

(i) prejudice respect for human dignity

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

(iii) encourage behaviour prejudicial to health or safety

 

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

 

2.3. Pricing

 

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

 

Legislation

 

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

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

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

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

 

Key case

 

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

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

 

The CPRs and price in advertising

 

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

 

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

 

 

 

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

International

SECTION B CONTENT RULES

 

 

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

 

 

  1. SELF-REGULATION; the 2024 ICC Code

1.1. General provisions

 
  1. THE LAW 

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

2.3. The AVMS Directive 

2.4. The Empco Directive 

2.5. The Green Claims Directive 


 

1. SELF-REGULATION; THE ICC CODE
The 11th edition of the ICC Code was published September 2024.
We show additions/amends in italics together with the previous versions, so you can see developments
We have not included e.g.scope, definitions, for reasons of space; these are often important and should be checked 

 

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.
 

Truthfulness (Art. 5)

 

  • Marketing communications should be truthful and not misleading;
  • Marketing communications should not contain any statement, claim or audio or visual treatment which, directly or by implication, omission, ambiguity or exaggeration, is likely to mislead the consumer, in particular, but not exclusively, with regard to:
  • Marketing communications should not contain any claim likely to mislead the consumer, regardless of how it is conveyed – by text, sound, visual elements or any combinations thereof – and regardless of how the misleading effect occurs – directly or by implication, omission, ambiguity or exaggeration. The combination of elements used in a marketing communication provides the net impression of a claim and control how it is interpreted. This applies especially, but is not limited to:
     
    • characteristics of the product which are material, i.e. likely to influence the consumer’s choice, such as the nature, composition, method and date of manufacture, range of use, efficiency and performance, benefits, quantity, commercial or geographical origin or environmental, social or economic impact;
    • the value of the product, and the total price and taxes to be paid by the consumer;
    • terms for the delivery, provision, exchange, return, repair and maintenance;
    • terms of guarantee;
    • copyright and industrial property rights such as patents, trade marks, designs and models and trade names;
    • the full provision, activation or automatic renewal of a subscription or service, copyright and industrial property rights such as patents, trademarks, designs, models, trade names and other distinguishable marks;
    • compliance with standards; compliance with certification and standards or any other use of quality marks, logos (e.g. environmental, sustainable) or recognition symbols;
    • official recognition or approval, awards such as medals, prizes and diplomas;
    • sponsorship, agreement or cooperation with a particular company or brand;
    • the extent of benefits for charitable causes;
    • respect of human rights or sustainable behaviour.

  • Audiovisual materials such as photos, video, sounds or other illustrations that are likely to mislead the consumer with regard to either a product’s characteristics, performance, benefits, quality and effects to be expected, or the association of a person or organisation with the product, should not be used, including where these are misleading because they have been altered or enhanced (e.g. AI generated or by so-called photo and video editing);
  • Communications that reflect specific commitments or goals that are aspirational in nature and not likely to be met until many years in the future (e.g. carbon negative, climate positive, diversity, equality, well-being etc.) require that the company is able to demonstrate, in concrete terms, that it has a reasonable capacity and methodological approach to meet such a commitment. Qualifiers should be included if elements or impacts will occur in the future.

 

Substantiation (Art. 6)

 

  • Descriptions, claims or illustrations relating to verifiable facts in marketing communications should be capable of substantiation. Claims that state or imply that a particular level or type of substantiation exists must have at least the level of substantiation advertised. Substantiation should be available so that evidence can be produced without delay and upon request to the self-regulatory organisations responsible for the implementation of the Code.
  • Marketers should have a reasonable basis for making claims relating to verifiable facts at the time the claim is made. Claims that state or imply that a particular level or type of substantiation exists should have at least the level of substantiation advertised. Supporting documentation should be provided promptly upon request to the self-regulatory organisations responsible for the application and enforcement of the Code. The standard of proof required generally depends on factors such as the type of claim, the product, the consequences of a false claim and the benefits of a truthful claim;
  • Substantiation should be based on documentation, tests or other factual evidence that is valid, reliable and sufficiently precise to support the claim made. In the absence of required substantiation, the claim would be regarded as misleading. 
  • Regarding substantiation of environmental claims, see Article D1.

 

 

Identification clauses

 

identification and transparency (Art. 7)

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.
  • Marketing communications, regardless of format or medium, should be easily identifiable, allowing consumers to clearly distinguish between commercial and non-commercial content;
  • Identification disclosures should be prominent, clear, easily legible and appear in close proximity to the commercial message where they are unlikely to be overlooked by consumers;
  • Marketing communications should be transparent about their true commercial purpose, and not misrepresent it. Hence, a communication promoting the sale of goods, or the contracting of a service should not be disguised, for example as news, editorial matter, market research, consumer surveys, consumer reviews, user-generated content, private blogs, private postings on social media or independent reviews etc.;
  • In the case of mixed content, such as with news or editorial matter or social media, the marketing communication element should be made clearly distinguishable as such, and its commercial nature should be transparent. It should be so presented that it is readily and immediately recognisable as a marketing communication and where appropriate, labelled as such.

 

identity of the marketer (Art. 8)

 

  • The identity of the marketer should be transparent. Marketing communications should, where appropriate, include contact information to enable the consumer to get in touch with the marketer without difficulty. The above does not apply to communications with the sole purpose of attracting attention to communication activities to follow (e.g. so-called “teaser advertisements”).
 
Use of technical/ scientific data and terminology (Art. 9)

 

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

 

 

Promotional terms/ dark patterns 

 

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

 

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

 

NEW ARTICLE

Presentation of the offer (Art. 11)

 

  • The terms and conditions of any offer including the identity of the marketer, full name and address along with information on how to ask questions or lodge complaints should be transparent to consumers. There should be a clear process which leads to the necessary steps to place an order, purchase, conclude a contract or any other commitment. Wherever appropriate, the essential points of the offer should be simply and clearly summarised together in one place. Essential points of the offer may be clearly repeated but should not be scattered throughout an extensive presentation;
  • Offers should not be presented in a manner that conceals or obfuscates material factors, e.g. price, additional costs, availability or other essential sales conditions, likely to influence consumers’ decisions;
  • Any image, sound or text which, by its size, volume or any other visual characteristic, is likely to materially reduce or obscure the legibility and clarity of the offer should be avoided. When an offer involves different choices those should be clear and unambiguous, and their consequences easy to understand for consumers;
  • When the presentation of an offer also features products not included in the offer, or where additional products need to be purchased to enable the consumer to use the product on offer, this should be made clear in the original offer. For offers involving promotional items, see Chapter A: Sales Promotion;
  • Before making any commitment, consumers should be able to easily access the information needed to understand the exact nature of the product and all conditions of the offer, as well as their rights and how to exert them. Marketing communications inviting consumers to contact the marketer for further information of an offer should be transparent on the cost of communications therefore (see also Article C4);
  • Where appropriate, the marketer should respond by accepting or rejecting the consumer’s order. The fulfilment of any obligation arising from the offer should be prompt and efficient.

 

NEW ARTICLE
 Automatic renewals (Art.12)

 

  • Advertising and marketing materials should clearly indicate when products are available as an automatic renewal rather than a one-time purchase. (See ICC Principles on Automatic Subscription Renewals. Essentially, marketers should obtain consumers’ consent to the material terms of an automatic renewal at the start of the contract);
  • The communication should not be misleading as to how the mechanism works or its consequences. The terms of renewal should be easily accessible for consumers before making any purchase. Where an automatic renewal begins with a free trial or other introductory offer Article 10 applies.

 

NEW ARTICLE
Use of “guarantee” (Art. 13)

 

  • Marketing communications should not state or imply that a “guarantee”, “warranty” or similar terms, provide extra consumer rights additional to those provided by law unless they genuinely do. The terms of any guarantee or warranty, including the guarantor’s name and address, should be easily available to consumers and limitations on consumer rights or remedies, where permitted by law, should be transparent and prominently visible.

 

Comparative and competitive 

 

Comparisons (Art. 14)​

 

  • Marketing communications containing comparisons should be so designed that the comparison is not likely to mislead, and should comply with the principles of fair competition. Points of comparison should be based on facts which can be substantiated and should not be unfairly selected.
  • Marketing communications containing comparisons should be carefully designed so as not to mislead and should comply with the principles of fair competition. Points of comparison should be based on verifiable facts. Product or price advantages that are demonstrable per se should not be exaggerated or overdramatised. Comparisons should be clear whether they are to a competitor’s product or to another version of the same product.

 

Exploitation of goodwill (Art. 15)

 

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

 

Imitation (Art. 16)

 

  • Marketing communications should not imitate those of another marketer in any way likely to mislead or confuse the consumer, for example through the general layout, text, slogan, visual treatment, music or sound effects;
  • Where a marketer has established a distinctive marketing communications campaign in one or more countries, other marketers should not imitate that campaign in other countries where the marketer who originated the campaign may operate, thereby preventing the extension of the campaign to those countries within a reasonable period of time
  • Marketing communications should not imitate another marketer’s work in a manner that is likely to mislead or confuse the consumer. This includes similarities in general layout, text, slogan, visual treatment, music or sound effects;
  • Where a marketer has established a distinctive marketing communications campaign in one or more markets, other marketers should not imitate that campaign in other markets where the original marketer might operate. This will consequently prevent blocking the expansion of the campaign to those markets within a reasonable period of time.

 

 

Denigration (Art. 17)

 

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

 

Testimonials/ Influencers 

 

Testimonials (Art. 13)

 

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

 

Testimonials and endorsements; influencer marketing communications (Art. 18)

 

  • 18.1 General principles. Marketing communications should not contain or refer to any testimonial, endorsement or supportive documentation unless it is genuine, verifiable and relevant. Testimonials or endorsements, including influencer marketing communications, which have become obsolete or misleading through passage of time should not be used. The sponsored nature of a testimonial or endorsement should be made clear through an appropriate disclosure if the form and format of the communication would not otherwise be understood to constitute a sponsored message;
  • 18.2 Influencer marketing communications. All influencer marketing communications (including promotions of an influencer’s own products) should be designed and presented in such a way that it is immediately identifiable as such. Identification should be appropriate to the medium and message, particularly in the context of social media. Marketers and their influencers, as well as creators, should ensure the content is properly presented as marketing communications in accordance with the principles of identification and transparency (see Article 7). Content uploaded concerning third parties constitutes a marketing communication only if the influencer has received some form of compensation from the brand, whether financial or through other arrangements and this should be immediately clear from the context or the content. Each time the communication is shared, the connection between the marketer and the influencer should be transparent. Affiliate links to products on external third-party websites should be disclosed as such and their commercial nature transparent. In addition to the provisions in Article 7, identification disclosures should not be obscured by or hidden among other content. General disclosures on websites, in the terms and conditions at the end of a piece of content, buried in a string of hashtags, or in the ‘see more’ section are not sufficient. Marketers should make sure that influencer marketing communications posted on their behalf include relevant qualifiers or statements to avoid misleading consumers about the standards, qualities, attributes, costs or other features of the product involved. Influencers should not create social media posts or other messages alleging the content is sponsored by a business when they have no agreement with the brand. Such false statements should be regarded as marketing communications promoting the influencer’s own activity or brand, and hence as misleading (see Article 5);
  • 18.3 Use of minors When the influencer is a minor (The term “minors” here refers to persons of such age that they, under the applicable law, lack legal capacity to enter into a binding agreement, e.g. an influencer contract with a marketer), marketing communications should be based on a contract providing for explicit parental or guardian consent and protecting the minor against any undue exploitation;
  • Marketers should respect the requirements set out in Chapter E concerning the privacy of children, teens and minors;
  • Marketing communications should clearly disclose the connection to the marketer, including if relevant, that the minor is receiving economic or other compensation. All content featuring minors should be age-appropriate and free from inappropriate products, language, themes, or behaviour; further on the special responsibility for children and teens, see Chapter E.

 

 

Portrayal or imitation of persons and references to personal property (Art. 19)

 

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

 

Children/ teens 

 

NEW ARTICLE

Children and teens (Art. 20)

 

  • Special care should be taken in marketing communications directed to or featuring children or teens. Marketing communications should not exploit the natural credulity of children or the lack of experience of teens and should not strain their sense of loyalty. In directing marketing communications to children and/or teens, the principles of this Code should be applied with due regard to the age and other characteristics of the actual target group, their differing cognitive abilities, and developing personal privacy rights independent of parents or guardians.;
  • Marketers should respect standards and laws prohibiting the marketing of products that are subject to age restrictions such as alcoholic beverages, gambling and tobacco to minors (The term minor here refers to those below the legal purchase age, i.e. the age at which national legislation permits the purchase or consumption of such restricted products. In countries where purchase age and consumption age are not the same, the higher age applies in relevant markets). 

 

For further specific rules, see Chapter E – Children and teens.

 

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

 

Safety and health (Art. 21)

 

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

 

NEW ARTICLE

 Data protection and privacy (Art. 22)
We haven't set out this article as it's a channel rule and well covered elsewhere, largely by the law 

 

NEW ARTICLE
Unsolicited products and undisclosed costs (Art. 23) 
 
  • Marketing communications associated with the practice of sending unsolicited products to consumers who are then asked for payment (inertia selling), including statements or suggestions that recipients are required to accept and pay for such products, should not be used;
  • Marketing communications which solicit a response constituting an order for which payment will be required (e.g. an entry in a publication) should make this unambiguously clear;
  • Marketing communications soliciting orders should not be presented in a form which might be mistaken for an invoice, or otherwise falsely suggest that payment is due;
  • For specific rules on respecting consumers’ wishes, see Chapter C, Article C6.
 
Articles 24-26, which complete the General Provisions section, are not included here as they are largely procedural
 

 

 

  • An 'environmental' claim is defined in the ICC Code as any claim in which explicit or implicit reference is made to the environmental or ecological aspects relating to the production, packaging, distribution, use/consumption or disposal of products. Environmental claims can be made in any medium, including labelling, package inserts, promotional and point-of-sales materials, product literature, as well as digital interactive media means any statement, symbol, sound, or graphic that indicates or implies an environmental aspect of a product, a component or ingredient of it, packaging or constituent of it, or an activity, facility or operation. The full scope and application of Chapter D has been extracted here 

 

Article D1. Substantiation 
 
  • All express or implied environmental claims should be substantiated by reliable scientific evidence11.(TT Reliable scientific evidence is the type of evidence likely to be recognised by experts in the field. Such evidence may, depending on the claim, consist of tests, analyses, calculations, studies, reports, surveys or other information) Care should be taken to assure that the substantiating data relied upon reflects the relevant product or activity and the claimed environmental aspects, attributes or performance featured in the marketing communication;
  • To substantiate aspirational claims or claims expressing goals or commitments related to achieving certain environmental metrics in the future, a marketer should be able to demonstrate that it has reasonable plans in place to work in good faith towards achieving the stated aspiration, goal or commitment in the timeframe specified;
  • As described in Article 6 of the Code, marketers need to monitor and review environmental claims regularly to ensure ongoing compliance, accuracy, and relevance. Typically, reliable scientific evidence, such as test data, analyses, studies and other documentation, are required to meet this standard;
  • See the Framework for further details on substantiation.

 

D2. Honest and truthful presentation

 

Environmental marketing communications should be so framed so as not to abuse to take advantage of consumers’ concern for the environment, nor exploit their possible lack of environmental knowledge;

  • D2.1 Marketing communications should not contain any statement or visual treatment environmental claims which are likely to mislead consumers in any way about the environmental aspects or advantages of products what's being communicated or about actions being taken by the marketer in favour of the environment.
  • Overstatement of Marketing communications should not overstate environmental attributes, such as highlighting a marginal improvement as a major gain, or using statistics in a misleading manner, e.g. “we have doubled the recycled content of our product” when there was only a small percentage of recycled content used to begin with) are examples. Marketing communications that refer to specific products or activities should not imply, without appropriate substantiation, that they extend to the whole performance of a company, group or industry;
  • An environmental claim should be relevant to the particular product being promoted specific focus of the marketing communication e.g. the products or activities in question. This should relate only to aspects or attributes that already exist or are likely to be realised during a product’s life, including customary and usual disposal or reasonably foreseeable improper disposal. It should be clear to what the claim relates, e.g. the product, a specific ingredient or aspect of the product, or its packaging or a specific ingredient constituent of the packaging or the marketer’s facilities or operations. A pre-existing but previously undisclosed aspect should not be presented as new. Environmental claims should be up to date and should, where appropriate, be reassessed with regard to relevant developments; Aspirational claims should have reasonable plans in place to work in good faith towards achieving the stated aspiration, goal or commitment in the timeframe specified;
  • Improvements related to a product and its packaging should normally be presented separately, and not be combined in keeping with the principle that claims should be specific and clearly relate to the product, an ingredient or element of the product, or the packaging or constituent of the packaging;
  • A claim concerning a combination of elements such as packaging and product combination can only be made if it really concerns both. This would not be the case, for example, if the claim only concerns the product packaging and the significant impacts of the packaging and product combination are different from the significant impacts of the packaging alone. Claims concerning a combination of elements, for example, inclusion of recycled content in a product or product packaged in compostable packaging, should both be supported by appropriate scientific evidence and qualified as needed to properly convey relevant limitations (e.g. our products include 20% recycled content and our packaging is compostable in industrial facilities, which are limited and may not be available near you);
  • Marketing communications that refer to specific environmental claims should not imply, without appropriate substantiation, that they extend to the whole performance of a product, company, group, sector, or industry. Such specific claims should be qualified as needed to avoid a misleading impression, i.e. if the limited nature of the claim is not otherwise clear from the claim itself or the context in which the claim is presented, then the claim should be appropriately qualified;
  • A pre-existing but previously undisclosed aspect should not be presented as “new”;
  • Environmental claims should not state or imply that reductions or benefits required by law or mandatory standards are voluntary.

 

D 2.2 Vague or general, non-specific claims 

  • Vague or general non-specific claims of environmental benefit, which may convey a range of meanings to consumers. Such claims should be made only if they are valid, without qualification, in all reasonably foreseeable circumstances. If this is not the case, general environmental claims should either be qualified or avoided. In particular Claims such as “environmentally friendly,” “ecologically safe,” “green,” “sustainable,” “carbon friendly” or any other claim implying that a product or an activity has no impact — or only a positive impact — on the environment, should not be used without qualification unless a very high standard of proof is available. As long as there are no definitive, generally accepted methods for measuring sustainability or confirming its accomplishment, no claim to have achieved it should be made; 
  • Special care should be taken before claiming sustainability achievements. Marketers should be cognisant of ongoing work to establish relevant methods to measure and validate sustainability. Relevant limitations should be made clear. An unqualified “sustainability” claim may be understood to involve company actions beyond efforts to reduce environmental impacts, depending on the context. Claims may be perceived as stating or implying that they involve social and economic impacts, such as support for fair working conditions, diversity and inclusion, communities, or charities, or the like, as well. Hence, marketers making sustainability claims should be mindful that consumers may take away a broader corporate social responsibility message. Marketers should evaluate relevant substantiation for such messages and consider whether claims should be qualified accordingly;
  • A specific claim about individual environmental attributes supported by reliable scientific evidence could be linked to a claim of “sustainability” (for example, “this part of our product is sustainable because it’s made of 100% post-consumer recycled content and is recyclable”); however, marketers should not state or imply that an entire product, facility or operation is “sustainable” without qualification simply because it has some positive environmental benefits.

 

D 2.2 Qualifications

 

  • Qualifications should be clear, prominent and readily understandable; the qualification should appear in close proximity to the claim being qualified, to ensure that they are read understood together;
  • There may be circumstances where it is appropriate to use a qualifier that refers a consumer to a refer a consumer to a QR code or a website where accurate additional information may be obtained. This technique is particularly suitable for communicating about after-use disposal. For example, it is not possible to provide a complete list of areas where a product may be accepted for recycling on a product package. A claim such as “Recyclable in many only in some communities, visit [URL] to check on if there are facilities near you,” provides both the relevant qualifier (that available recycling facilities are limited) plus a means of advising consumers where to locate information on communities where a particular material or product is accepted for recycling.

 

D3. Scientific research

 

  • Marketing communications should use technical demonstrations or scientific findings about the environmental impact of what's advertised only when they are backed by reliable scientific evidence;
  • In line with article 9, environmental jargon or scientific jargon or terminology is acceptable provided it is relevant to the claimed environmental performance and used in a way that can be readily understood by those to whom the message is directed;
  • An environmental claim relating to health, safety or any other benefit should be made only where it is supported by reliable scientific evidence. Also, such claim may require different reliable scientific evidence as they relate to aspects other than the environment, see Article D6.

 

D4. Comparisons

 

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

 

 

D5. Product life-cycle

 

  • Environmental claims should not be presented in such a way as to imply that they relate to more stages of a product’s life-cycle, or to more of its properties, than is justified by the evidence; it should always be clear to which stage or which property a claim refers. A life-cycle benefits claim should be substantiated by a full life cycle analysis (cradle to grave). If an alternative lifecycle analysis is used (e.g. cradle to gate), the more limited scope of that lifecycle analysis should be disclosed;

Article D6 – Claims regarding components and elements

  • When a claim refers to the reduction of components or elements having an environmental impact, it should be clear what has been reduced. Such claims are justified only if they relate to alternative processes, components or elements which result in a significant meaningful environmental improvement;
  • Environmental claims should not be based on the absence of a component, ingredient, feature or impact that has never been associated with the product category concerned unless qualified to indicate that the product or category has never been associated with the particular component, ingredient, feature or impact. Such claims could be justified if they respond to potential misperceptions about the use of the identified component, ingredient, feature, or impact. If so, qualifiers may be needed to avoid consumers being misled about the nature of the product, process, activity etc.Conversely, generic features or ingredients, which are common to all or most products in the category concerned, or required by law, standards or otherwise, should not be presented as if they were a unique or remarkable characteristic of the product being promoted;
  • Claims that a product does not contain a particular ingredient or component, e.g. that the product is “X-free”, should be used only when the level of the specified substance does not exceed that of an acknowledged trace contaminant or background level Note: “Trace contaminant” and “background level” are not precise terms. “Trace contaminant” implies primarily manufacturing impurity, whereas “background level” is typically used in the context of naturally occurring substances. Claims often need to be based on specific substance-by-substance assessment to demonstrate that the level is below that causing harm. Also, the exact definition of trace contaminants may depend on the product area concerned. If the substance is not added intentionally during processing, and manufacturing operations limit the potential for cross-contamination, a claim such as “no intentionally added xx” may be appropriate. However, if achieving the claimed reduction results in an increase in other harmful materials, the claim may be misleading. Claims that a product, package or component is “free” of a chemical or substance often are intended as an express or implied health claim in addition to an environmental claim. The substantiation necessary to support an express or implied health or safety claim may be different from the substantiation required to support the environmental benefit claim. The advertiser must be sure to have reliable scientific evidence to support an express or implied health and safety claim in accordance with other relevant provisions of the Code;
  • When the absence of a certain component or ingredient is claimed, directly or implicitly, to offer an environmental benefit versus another product, the general rules on comparisons apply, see Article D4 and General Provisions Article 14.

 

D7. Certifications, signs and symbols 

 

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

 

D6. Waste handling

 

  • Environmental claims referring to waste handling are acceptable provided that the recommended method of separation, collection, processing or disposal is generally accepted or conveniently available to a reasonable proportion of consumers in the area concerned. If not, the extent of availability should be accurately described.
 
D8. Environmental attribute claims
 
  • Environmental claims referring to a product’s makeup or constituents (for example, made with recycled or renewable content) or waste handling (for example, recyclable or compostable), should truthfully represent the attributes of the advertised product based on reliable scientific evidence as set out in Article D1. A product claimed to involve recycled or renewable content that is made from less than substantially all recycled or renewable content should avoid any risk of misleading consumers, e.g. by disclosing the percentage. A product claimed to be recyclable or compostable should disclose the extent of availability of these disposal methods if availability is limited;
  • Marketing communications that include compostability claims should disclose if a product is compostable only in industrial settings, and if so, whether facilities are limited, or if the resulting compost is subject to any use limits. A claim that a product’s packaging is refillable, or reusable should provide handling instructions to maintain safety.

 

D9. Responsibility

 

  • For this chapter, the rules on responsibility laid down in the general provisions apply (see article 24).

 

 

Additional guidance

 

 

 

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

We have not set out individual clauses below, therefore. 

 

Applicable self-regulation 

 

  • Article 20 from the General Provisions of the iCC Code above and Chapter E; see above or here 
  • ICC Statement on code interpretation and ICC reference guide on advertising to children here
  • ICC toolkit: Marketing and Advertising to Children (2017) here
  • Framework for Responsible Food and Beverage Marketing Communications here
  • WFA: The Responsible Advertising and Children Programme (RAC); Marketing to children 

 

 

 

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

 

Applicable self-regulation and legislation 

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

 

 

 

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

 

Applicable self-regulation and legislation 

 

 

Legislation 

 

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

 

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

 

 

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

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02005L0029-20220528 (consolidated text 28/05/22)

 

Directive 2019/2161 amended the UCPD setting out some new information requirements for search rankings and consumer reviews, new pricing information in the context of automated decision-making and profiling of consumer behaviour (amending Directive 2011/83/EU, not shown below), and price reduction information under the Product Pricing Directive 98/6/EC. Potentially significant for multinational advertisers is the amerndment of article 6 of the UCPD, adding the clause (c) shown below in italics (as are other amends). Recitals related to this clause, which provide some context, are here. Helpful October 2021 explanatory piece on the Omnibus Directive from A&L Goodbody via Lex here

 

Guidance 

 

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

 

Article 6. Misleading actions

 

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

 

(a) the existence or nature of the product;

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

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

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

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

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

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

 

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

 

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

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

 

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

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

 

(c) any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors.

 

 

Article 7. Misleading omissions

 

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

 

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

 

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

 

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

 

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

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

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

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

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

(f) for products offered on online marketplaces, whether the third party offering the products is a trader or not, on the basis of the declaration of that third party to the provider of the online marketplace.

 

4a.  When providing consumers with the possibility to search for products offered by different traders or by consumers on the basis of a query in the form of a keyword, phrase or other input, irrespective of where transactions are ultimately concluded, general information, made available in a specific section of the online interface that is directly and easily accessible from the page where the query results are presented, on the main parameters determining the ranking of products presented to the consumer as a result of the search query and the relative importance of those parameters, as opposed to other parameters, shall be regarded as material. This paragraph does not apply to providers of online search engines as defined in point (6) of Article 2 of Regulation (EU) 2019/1150 of the European Parliament and of the Council.

 

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

 

6. Where a trader provides access to consumer reviews of products, information about whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the product shall be regarded as material.

 

 

ANNEX I

 

Commercial practices which are in all circumstances considered unfair 

Marcoms-relevant only; see Empco amends below

 

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

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

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

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

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

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

 

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

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

(c) demonstrating a defective sample of it,

 

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

 

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

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

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

11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1).

11a.  Providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results.

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

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

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

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

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

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

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

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

23b.  Stating that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers.

23c.  Submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products.

 

Aggressive commercial practices

 

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

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

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

 

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

 

 

 

2.2.1. Directive 98/6/EC on consumer protection in the indication of the prices of products offered to consumers

 

Article 2

 

For the purposes of this Directive:

 

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

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

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

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

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

 

Article 3

 

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

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

 

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

 

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

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

 

Article 4

 

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

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

 

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

 

Article 5

 

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

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

 

Article 6a

 

1.   Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction.
2.   The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction.
3.   Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly.
4.   Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2.
5.   Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction.

 

 

2.2.2. Extracts from UCPD re pricing

 

Article 6

Misleading actions

 

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

 

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

 

Article 7

Misleading omissions

 

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

 

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

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

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

 

Annex I

 

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

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

 

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

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

(c) demonstrating a defective sample of it,

 

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

 

 

 

2.3.The AVMS Directive and amend 

 

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

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

 

Article 9

 

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

 

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

 

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

 

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

 

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

 

 

2.4. The Empco Directive 
https://eur-lex.europa.eu/eli/dir/2024/825/oj
In force from March 2024, meaning that member states have until September 2026 to implement

 

Article 1

Amendments to Directive 2005/29/EC

 

(1) in Article 2, the first paragraph is amended as follows: (b) the following points are added:

 

  • ‘(o) “environmental claim” means any message or representation which is not mandatory under Union or national law, in any form, including text, pictorial, graphic or symbolic representation, such as labels, brand names, company names or product names, in the context of a commercial communication, and which states or implies that a product, product category, brand or trader has a positive or zero impact on the environment or is less damaging to the environment than other products, product categories, brands or traders, or has improved its impact over time;
  • (p) “generic environmental claim” means any environmental claim made in written or oral form, including through audiovisual media, that is not included on a sustainability label and where the specification of the claim is not provided in clear and prominent terms on the same medium;
  • (q) “sustainability label” means any voluntary trust mark, quality mark or equivalent, either public or private, that aims to set apart and promote a product, a process or a business by reference to its environmental or social characteristics, or both, and excludes any mandatory label required under Union or national law;
  • (r) “certification scheme” means a third-party verification scheme that certifies that a product, process or business complies with certain requirements, that allows for the use of a corresponding sustainability label, and the terms of which, including its requirements, are publicly available and meet the following criteria:


 

  • (i) the scheme is open under transparent, fair, and non-discriminatory terms to all traders willing and able to comply with the scheme’s requirements;
  • (ii) the scheme’s requirements are developed by the scheme owner in consultation with relevant experts and stakeholders;
  • (iii) the scheme sets out procedures for dealing with non-compliance with the scheme’s requirements and provides for the withdrawal or suspension of the use of the sustainability label by the trader in case of non-compliance with the scheme’s requirements; and
  • (iv) the monitoring of a trader’s compliance with the scheme’s requirements is subject to an objective procedure and is carried out by a third party whose competence and independence from both the scheme owner and the trader are based on international, Union or national standards and procedures;


 

  • (s) “recognised excellent environmental performance” means environmental performance compliant with Regulation (EC) No 66/2010 of the European Parliament and of the Council (*2) or with national or regional EN ISO 14024 type I ecolabelling schemes officially recognised in the Member States, or top environmental performance in accordance with other applicable Union law;
  • (t) “durability” means durability as defined in Article 2, point (13), of Directive (EU) 2019/771;
  • (u) “software update” means an update that is necessary to keep goods with digital elements, digital content and digital services in conformity in accordance with Directive (EU) 2019/770 of the European Parliament and of the Council (*3) and Directive (EU) 2019/771, including a security update, or a functionality update;
  • (v) “consumable” means any component of a good that is used up recurrently and that needs to be replaced or replenished for the good to function as intended;
  • (w) “functionality” means functionality as defined in Article 2, point (9), of Directive (EU) 2019/771.

 

 

(2) Article 6 is amended as follows: (a) in paragraph 1, point (b) is replaced by the following:

 

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

 

(b) in paragraph 2, the following points are added:

 

  • ‘(d) making an environmental claim related to future environmental performance without clear, objective, publicly available and verifiable commitments set out in a detailed and realistic implementation plan that includes measurable and time-bound targets and other relevant elements necessary to support its implementation, such as allocation of resources, and that is regularly verified by an independent third party expert, whose findings are made available to consumers;
  • (e) advertising benefits to consumers that are irrelevant and do not result from any feature of the product or business.’;

 

(3) in Article 7, the following paragraph is added:

 

  • ‘7. Where a trader provides a service which compares products and provides the consumer with information on environmental or social characteristics or on circularity aspects, such as durability, reparability or recyclability, of the products or suppliers of those products, information about the method of comparison, the products which are the object of comparison and the suppliers of those products, as well as the measures in place to keep that information up to date, shall be regarded as material information.’;

 

(4) Annex I is amended in accordance with the Annex to this Directive. Annex I to Directive 2005/29/EC is amended as follows:

(1) the following point is inserted:

 

  • ‘2a. Displaying a sustainability label that is not based on a certification scheme or not established by public authorities.’;

(2) the following points are inserted:
 

  • 4a. ‘Making a generic environmental claim for which the trader is not able to demonstrate recognised excellent environmental performance relevant to the claim.
  • 4b. Making an environmental claim about the entire product or the trader’s entire business when it concerns only a certain aspect of the product or a specific activity of the trader’s business.
  • 4c. Claiming, based on the offsetting of greenhouse gas emissions, that a product has a neutral, reduced or positive impact on the environment in terms of greenhouse gas emissions.’

(3) the following point is inserted:

  • 10a. Presenting requirements imposed by law on all products within the relevant product category on the Union market as a distinctive feature of the trader’s offer.’;

 

(4) the following points are inserted:
 

  • ‘23d. Withholding information from the consumer about the fact that a software update will negatively impact the functioning of goods with digital elements or the use of digital content or digital services.
  • 23e. Presenting a software update as necessary when it only enhances functionality features.
  • 23f. Any commercial communication in relation to a good containing a feature introduced to limit its durability despite information on the feature and its effects on the durability of the good being available to the trader.
  • 23g. Falsely claiming that under normal conditions of use a good has a certain durability in terms of usage time or intensity.
  • 23h. Presenting a good as allowing repair when it does not.
  • 23i.Inducing the consumer to replace or replenish the consumables of a good earlier than necessary for technical reasons.
  • 23j. Withholding information concerning the impairment of the functionality of a good when consumables, spare parts or accessories not supplied by the original producer are used, or falsely claiming that such impairment will happen.’.

 

2.5. The Green Claims Directive 

 

  • More formally, Proposal for a Directive on substantiation and communication of explicit environmental claims. The proposal aims to:
  • Make green claims reliable, comparable and verifiable across the EU; protect consumers from greenwashing; contribute to creating a circular and green EU economy by enabling consumers to make informed purchasing decisions; help establish a level playing field when it comes to environmental performance of products;
  • The Commission pages on the proposal are here; the draft directive itself is here. The directive is likely to be agreed in parliament by the end of 2024

 

 

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C. Channel Rules

1. TV/Radio/VOD

Sector

SECTION C: TV & RADIO/ AV

 

 

24/6/21: The U.K. Government published 'Consultation outcome: Introducing further advertising restrictions on TV and online for products high in fat, salt and sugar: government response'. Key points are: 

 

...........introduce, simultaneously at the end of 2022, a 9pm TV watershed for HFSS products and a restriction of paid-for HFSS advertising online
.................all on-demand programme services (ODPS) under the jurisdiction of the UK, and therefore regulated by Ofcom, will be included in the TV watershed for HFSS advertising
..................non-UK regulated ODPS will be included in the restriction of paid-for HFSS advertising online because they are outside UK jurisdiction

 

 

1. TELEVISION

 

  • TV commercials are subject to mandatory pre-clearance at script and film stages
    (Clearcast http://www.clearcast.co.uk)

  • Content rules for Food and Soft Drinks set out in Section B apply (BCAP for broadcast rules), as do the Content rules for all product sectors under the General tab below the Sector content rules 
  • TV advertising for HFSS products must not be advertised in or adjacent to programmes commissioned for, principally directed at or likely to appeal particularly to audiences below the age of 16 (32.5.1 BCAP)
  • Slimming products, treatments, or establishments must not be advertised in or adjacent to programmes commissioned for, principally directed at or likely to appeal particularly to audiences below the age of 18. An exception is made for advertisements for calorie-reduced or energy-reduced foods and drinks, if they are not presented as part of a slimming regime and provided the advertisements do not use the theme of slimming or weight control (BCAP 32.2.4)
  • The Channel rules that apply to all product sectors, Food and Soft Drinks included, are set out under the General tab below

 

 
PRODUCT PLACEMENT

 

  • Product placement of HFSS foods, infant formula and follow-on formula are not permitted (Ofcom Broadcasting Code 9.13; Ofcom is the ASA’s co-regulatory partner for broadcast advertising; their remit includes product placement and sponsorship; see Section 9 of their Code)

 

SPONSORSHIP

 

  • The prohibitions set out above for advertising apply also to sponsorship of programmes (Ofcom regulates sponsorship using the BCAP Code and certain provisions of its Broadcast Code. The HFSS restrictions apply to sponsorship; credits may not be placed around programmes commissioned for, principally directed at, or likely to appeal particularly to children.

 

 

See the Implementation Guidance Note point 3 Television and Radio

Commitments enhanced July 2021, effective January 2022

 

2. RADIO

 

  • Commercials for food products fall into a special category requiring scripts to be centrally cleared by the RACC in advance: http://www.racc.co.uk (BCAP 13.1); slimming products and services must also observe this requirement (BCAP 12.1)
  • The Content rules set out in Section B apply

 

Product placement and sponsorship per TV above

 

 

 

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General

SECTION C - TV INC VOD & RADIO

 

 

BCAP introduces new rules restricting broadcast ads for qualifying cryptoassets

Lewis Silkin/ Lex September 30, 2024

 

KEY RULES

 

  • The rules in content section B apply; where there are distinctions between CAP and BCAP, BCAP obviously applies in this context (except VOD; see below)
  • Statutory provisions apply to all media, except those (shown in this section) specifically applying to broadcast communications content and placement
  • General content rules specific to TV and Radio are also from the Ofcom Broadcasting Code (OBC) Appendix 2, taken from the Audiovisual Media Services Directive 2010/13/EU and providing that audiovisual commercial communications shall not (non-exhaustively): (i) prejudice respect for human dignity (ii) include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation (iii) encourage behaviour prejudicial to health or safety
  • Surreptitious advertising - a reference to a product, service or trade mark that is contained within a programme, where that reference is intended by the broadcaster to serve as advertising and that is not made clear to the audience - is prohibited (Rule 9.3, Broadcasting Code)
  • Section 32 of the BCAP Code contains the scheduling rules in broadcasting. Click on the link to see which and when product categories can or can’t be shown
  • February 2022 CAP published I can see clearly now: an update on the implementation of superimposed text guidance  

 

VOD

 

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

 

 
PRODUCT PLACEMENT

 

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

 

SPONSORSHIP
(extracts only)

 

From Ofcom Section nine: Commercial references on TV

 

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

 

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

 

RADIO

 

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

 

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

 

 

 

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International

SECTION C TV/AV AND RADIO

 

 

EASA Jan 2024 update on the AVMSD

 

APPLICABLE SELF-REGULATION AND LEGISLATION

 

  • These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth programming; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
  • For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN 2024), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • Chapter B of the ICC Code linked above covers media sponsorship (Art. B12). The rules do not include product placement
  • The Audiovisual Media Services (AVMS) Directive 2010/13/EU is the key legislation; this was significantly amended by Directive 2018/1808, whose 'headline' was new rules for Video Sharing platforms (VSPS), but which made some other fairly significant amends to the AV framework, albeit none that had a notable impact on the content of commercial communications. The Directive's new/ adjusted rules in that context are assembled here and there's a helpful June 2021 commentary from Simmons & Simmons/ Lexology here and their June 2022 version is here. Some provisions are shown below

 

SPONSORSHIP (from the ICC Code)
2024 amends shown in italics

 

Article B12: Media sponsorship

 

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

LEGISLATION KEY CLAUSES 

 

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

 

Article 9

 

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

 

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

 

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

 

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

 

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

 

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

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

 

Article 4a is found here 

 

 

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2. Cinema/Press/Outdoor

Sector

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

CINEMA

 

  • The Content rules for Food and Soft Drinks in Section B above apply to the Cinema channel, except those specific to Broadcast
  • The Content rules for all product sectors under the 'General' tab below the Sector Content rules also apply
  • Advertising that directly or indirectly promotes an HFSS product cannot appear in children’s media
  • Advertising for HFSS products cannot appear in other media where children make up over 25% of the audience
  • Food ads addressing any age group should not use terms such as ‘good’ or ‘goodness’ in a manner that implies health-giving qualities, e.g. ‘good for you’. If advertisers wish to refer to the quality of flavour, then they should use phrases such as ‘taste good’
  • Ads should avoid making statements like 'all you can eat', or using terms like 'supersized'
  • Portions shown for individual consumption must be modest, and fresh fruit or vegetable must not be denigrated
    (CAA guidance 'Cinema advertising and HFSS foods'):
    http://www.cinemaadvertisingassociation.co.uk/food.php

 

 

See Implementation Guidance point 6 for Cinema and movies on DVD/ CD-ROM 

Commitments enhanced July 2021, effective January 2022

 

PRINT

 

  • The Content rules in Section B above apply, except those specific to Broadcast
  • The Content rules for all product sectors under the 'General' tab below the Sector Content rules also apply 
  • Advertising that directly or indirectly promotes an HFSS product cannot appear in children’s media
  • Advertising for HFSS products cannot appear in other media where children make up over 25% of the audience
  • EU Pledge Implementation Guidance point 4 for Print (and third party Internet); commitments enhanced July 2021, effective January 2022 

 

OUTDOOR

 

  • No rules from authorities for the Food and Soft Drinks category that apply exclusively to Outdoor advertising; Content rules in Section B apply, except those for Broadcast - both Sector-specific and 'General' Content rules 
  • The standard approach taken by the outdoor ad industry is to not place ads for HFSS products within 100 metres of a primary or secondary school during term time; see November 2018 adjudication vs. Burger King here

 

TFL

 

  • Transport for London announced in November 2018 that as from February 25, 2019, advertising for HFSS Foods would not be permitted ‘on services run or regulated by Transport for London’. More specifically: an advertisement will be unacceptable if:

 

(p) it promotes (directly or indirectly) food or non-alcoholic drink which is high in fat, salt and/ or sugar (‘HFSS’ products), according to the Nutrient Profiling Model managed by Public Health England. It is for the advertiser to demonstrate (in case of any doubt) that any product is not HFSS, and/ or that an advertisement is not promoting HFSS products, and/ or that there are exceptional grounds. A set of guidelines is available which provides more details of how this aspect of the policy is implemented.

 

  • The policy is here, and the guidance is here

 

 

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General

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

CINEMA

 

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

 

 
 PRINT

 

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

 

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

 

 
OUTDOOR

 

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

 

 

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International

SECTION C: CINEMA, PRINT, OUTDOOR

 

 

Applicable self-regulation and legislation 

 

  • These rules are ‘general’ cross-border regulations, i.e. channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications or films for children; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
  • For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN 2024), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below, 2024 amends in italics. In the context of ‘Native’ advertising in particular, articles 7 and 8 of the ICC Code shown below are relevant
  • The Unfair Commercial Practices Directive 2005/29/EC; re native advertising in particular in print, and all provisions related to misleadingness etc. apply in all media; some clauses below
  • In terms of channel rules, Chapter B (Sponsorship) of the ICC Code will apply; article B12 (shown below with 2024 amends)

 

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

 

Identification and transparency (Art. 7)

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.
  • Marketing communications, regardless of format or medium, should be easily identifiable, allowing consumers to clearly distinguish between commercial and non-commercial content
  • Identification disclosures should be prominent, clear, easily legible and appear in close proximity to the commercial message where they are unlikely to be overlooked by consumers
  • Marketing communications should be transparent about their true commercial purpose, and not misrepresent it. Hence, a communication promoting the sale of goods, or the contracting of a service should not be disguised, for example as news, editorial matter, market research, consumer surveys, consumer reviews, user-generated content, private blogs, private postings on social media or independent reviews etc.
  • In the case of mixed content, such as with news or editorial matter or social media, the marketing communication element should be made clearly distinguishable as such, and its commercial nature should be transparent. It should be so presented that it is readily and immediately recognisable as a marketing communication and where appropriate, labelled as such.

 

Identity of the marketer (Art. 8)

 

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

 

Legislation key clauses 

 

Annex I of the UCPD 

 

11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC (1)

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

 

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

 

Article B12 ICC Code Media sponsorship

 

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

 

 

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3. Online Commercial Communications

Sector

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

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

 

24/6/21. SEE UPDATE ABOVE The U.K. Government published 'Consultation outcome: Introducing further advertising restrictions on TV and online for products high in fat, salt and sugar: government response'. Key points are: 

 

...........introduce, simultaneously at the end of 2022, a 9pm TV watershed for HFSS products and a restriction of paid-for HFSS advertising online
.................all on-demand programme services (ODPS) under the jurisdiction of the UK, and therefore regulated by Ofcom, will be included in the TV watershed for HFSS advertising
..................non-UK regulated ODPS will be included in the restriction of paid-for HFSS advertising online because they are outside UK jurisdiction

 

CONTEXT

 

This section sets out the broad rules for the online environment generally. Below this, more specific channels are covered such as email, own websites and OBA. Non paid-for channels, such as marketers’ own websites and SNS spaces, are also covered by the rules. Specifics are included later in this section, but the same principle applies in non-paid-for space as applies in paid: if it’s a marketing communication, it’s subject to the rules

 

  • The Content rules for Food and Soft Drinks in Section B above apply to marketing communications in all media, including online, except those specific to broadcast
  • The 'General' Content rules, shown beneath the Sector rules, also apply
  • Advertising that directly or indirectly promotes an HFSS product cannot appear in children’s media
  • Advertising for HFSS products cannot appear in other media where children make up over 25% of the audience
  • CAP's Guidance of May 2017:  ‘Recognition of advertising: online marketing to children under 12’ clarifies the specific online situation for kids 

 

 

 

Implementation Guidance on (print and) third party Internet advertising is under point 4 of the Guidance

Commitments enhanced July 2021, effective January 2022

 

 

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General

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

 

LATEST ISSUES/ NEWS

 

CAP Insight newsletter: advertising on social media Jan 25, 2024

The Digital Markets, Competition and Consumers (DMCC) Bill Govt. press release April 25, 2023

Data Protection and Digital Information (No. 2) Bill. Link is to Bill summary 8 March from Department for Science, Innovation & Technology

The bill is here; commentary here from Baker McKenzie/ Lex March 9, 2023 and Herbert Smith Freehills LLPLex March 13 here set out the changes to No.1

Further commentary here from Squire Patton Boggs April 18, 2023 sets out some of the issues with EU 'conflict'

The above bill did not make it through wash-up

 

CONTEXT

 

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

 

REMIT: WHICH RULES APPLY AND WHERE 

 

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

 

NON PAID-FOR SPACE 

 

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

 

THE LAW

 

 

THE ICO

 

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

 

SOME EDPB GUIDANCE

 

AFFILIATE MARKETING 

 

 

 

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International

SECTION C: ONLINE COMMERCIAL COMMUNICATIONS

 

 

Repository of European IAB’s Initiatives for Responsible Digital Advertising
IAB 30 September 2024. Topics Privacy, DSA, Influencer marketing, Qualid, Child Safety, 

Commission's call for evidence on DSA minors protection guidelines; closed 30th Sept 2024

EASA on the above and two calls for tender August 8, 2024

Meta and self-regulation December 2023 

 

CONTEXT

 

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

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

 

Legislation

 

Online Deals Do's And Don'ts For Online Business Under EU Law

Logan & partners/ Mondaq November 28, 2023

 

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

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

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

  •  

THE DSA AND DMA 

 

Two relatively recent arrivals in EU digital platform regulation are the Digital Markets Act (implemented May 2023), aka Regulation (EU) 2022/1925 and its implementing provisions; Commission explanatory pages here and the Digital Services Act, pages here (implemented Feb 2024 for all platforms) aka Regulation 2022 (EU) 2022/2065. The first, as the name implies, is the EU's means of reining in the major digital 'gatekeepers' to ensure 'fairer and more contestable' markets. Somewhat obviously, the rules are aimed at platforms rather than advertisers and agencies, though there are implications for behaviourally targeted advertising. The DSA's main goal 'is to prevent illegal and harmful activities online and the spread of disinformation.' Loosely, this is the EU's Online Safety Act.

 

Self-regulatory clauses 

 

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

2024 amends in italics; there are some 20 articles in this section of the code  

 

C2. Identification and transparency

 

  • Marketing communications should be properly identified, as such in accordance with Article 7 of the General Provisions subject descriptors should be accurate and the commercial nature of the communications, as well as the identity of the marketer, should be transparent to the consumers in accordance with Articles 7-8 of the General Provisions
  • Where a marketer has created or offered consideration for a product endorsement or review, the commercial nature should be transparent. In such cases, the endorsement or review should not state or imply that it is from or conferred by an individual consumer or independent body
  • Marketers should take appropriate steps to ensure that the commercial nature of the content of a social network site or profile under the control or influence of a marketer is clearly indicated and that the rules and standards of acceptable commercial behaviour in these networks are respected
  • Any image, sound or text which, by its size, volume or any other visual characteristic, is likely to materially reduce or obscure the legibility and clarity of the offer should be avoided

 

Article C3 – Presentation of the offer
 

The terms of offers should be presented in a transparent and understandable manner in accordance with Article 11 (Presentation of the Offer) of the General Provisions

 

C2. Identity of the marketer

 

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

 

Legislative clauses

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

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

* Now repealed; GDPR applies 

 

 

Directive 2000/31/EC: article 5

 

General information to be provided

 

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

(a) The name of the service provider

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

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

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

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

(f) As concerns the regulated professions:
 

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

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

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

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

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

 

 

Section 2: Commercial communications

 

Article 6

 

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

 

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

 

Article 7

Unsolicited commercial communication

 

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

 

Directive 2018/1808 amending the AVMS Directive 

 

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

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

 

Guidance

 

European Data Protection Board / Article 29 Working Party

 

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

 

 

EASA Digital Marketing Communications Best Practice Recommendation. This document:

 

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

 

 

 

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4. Cookies & OBA

Sector

SECTION C: COOKIES AND OBA

 

 

COOKIES

 

  • While the various sectoral Codes do not address the issue of Cookies per se, it’s obviously the case that any commercial activity for HFSS foods aimed at under 16’s should be avoided 

 

OBA

 

  • The Content rules for Food and Soft Drinks in Section B above apply to marketing communications in all media, except those for Broadcast. In that sense, OBA is like any other Food and Beverage advertising - it’s subject to the Content rules, both the sector-specific rules and the 'General' rules for all product categories shown beneath the Sector rules 
  • It is a General rule (see General tab) of the European self-regulatory programme for OBA, administered by the European Interactive Digital Advertising Alliance EDAA http://www.edaa.eu that OBA segments are not created for children (under 13)
  • As HFSS advertising to children (<16) in all media is prohibited, then any first or third party tracking of their behaviour cannot lead to serving of HFSS advertising
  • If not observing the above EDAA  programme, then the CAP rules on OBA apply (see also General section), as well as the Content rules

 

 

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General

SECTION C: COOKIES AND OBA

 

 

COOKIES

 

The new data bill from DSIT Oct 24, 2024. ICO response here

The ICO’s cookie focus is extending to ad tech: 5 things you need to know

Slaughter and May/ Lex September 26, 2024

The announcement of a new Digital Information and Smart Data Bill
Addleshaw Goddard/ Lex August 7, 2024

A new path for Privacy Sandbox on the web. July 22, 2024

Google re new plans for third-party cookies on Chrome 

 

Privacy issues should be reviewed with specialist advisors 

 

LEGISLATION 

 

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

 

GUIDANCE 

 

 
GDPR AND UK DEVELOPMENTS 

 

The ICO’s Guide to the General Data Protection Regulation is here. Updates can be found here. Check privacy matters, and especially how GDPR applies to cookies, with your/ your client’s lawyers. Relevant EDPB guidance from March 2019 is Opinion 5/2019 on the interplay between the ePrivacy Directive and the GDPRAnIs the UK getting tough on cookies? The ICO responds to the Government’s plans from Slaughter & May October 2021 addresses some potentially significant developments for cookie regulations

 

UK IMPLICATIONS

 

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

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

 

SELF-REGULATION

 

Stay up to data: four key tips on using personal data for marketing. CAP News. 26 Jan 2023

 

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

 

The Direct Marketing Association (DMA)

 

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

 

ONLINE BEHAVIOURAL ADVERTISING (OBA)

 

CJEU Rules on Targeted Advertising in Schrems v Meta
Lewis Silkin/ Lex November 11, 2024

Privacy rules for targeted advertising in the UK and EU. Reed Smith/ Lex August 2023

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

Effective 19 January 2022 (er, see above re CJEU case)

 

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

 

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

 

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

 

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

 

INTERNATIONAL SELF-REGULATION

 

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

 

 

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

 

 

 

 

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International

SECTION C: COOKIES AND OBA

 

 

NEWS/ COMMENTARY

 

Consent or pay: one rule for some (large online platforms),

another rule for everyone else? Weil Gotshal & Manges 30/8/24

A new path for Privacy Sandbox on the web July 22, 2024

Third party cookie plans for Chrome. WFA view here 

Meta’s Ad-Free Subscription Violates Competition Law

Adam Satariano NYT July 1, 2024

EDPB Opinion 8/2024 on Pay or Consent April 17. Lexia May 8

 

1. COOKIES

 

Applicable legislation, self-regulation and guidance 

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

 

 

Article 29/EDPB Working Party documents

 

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

 

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

 

Legislation

 

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

 

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

 

GDPR

 

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

 

2. OBA 

 

Meta must limit data for personalised ads

BBC October 4, 2024. Hunton Oct 15

EDAA launches new solution to DSA ad transparency requirements

EDPB ban on Meta processing personal data for behavioural advertising

DAC Beachcroft/ Lex December 6, 2023. EDPB here

Privacy Challenges For Digital Advertising, Particularly In Europe

Squire Patton Boggs 22 November, 2023

 

Applicable regulation and opinion

 

 

 

Opinion/ guidance 

 

Article 29 Working Party* documents

 

 

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

 

European self-regulatory programme for OBA

 

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

 

 
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5. Emails & SMS

Sector

 

DIRECT ELECTRONIC COMMUNICATIONS
e.g. Email, SMS, MMS

 

  • The Content rules for Food and Soft Drinks in Section B above apply to marketing communications in all media, except those specific to Broadcast. The General content rules, i.e. those for all product sectors, also apply
  • Advertising that directly or indirectly promotes an HFSS product cannot appear in children’s media
  • Advertising for HFSS products cannot appear in other media where children make up over 25% of the audience
  • Infant formula advertising is permitted only in specialist press
  • Note that the Channel rules set out here are specific to the Food and Soft Drinks sector; the Channel rules that apply to all sectors, found under the General tab below, also apply. These include, for example, statutory Consent and Information requirements  

 

 

Implementation Guidance point 8 for Direct Marketing

Commitments enhanced July 2021, effective January 2022


 

 

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General

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

A round-up of DM fines issued by the ICO In 2024

Lewis Silkin June 4, 2024

ICO fines HelloFresh £140k. RPC/Lex April 17, 2024

On July 5, 2023, the ICO issued video guides for small organisations; includes soft opt-in

 

CONTEXT​ FOR THIS CHANNEL

 

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

 

LEGISLATION AND GUIDANCE

 

 

OTHER LEGISLATION

 

 

DEFINITION AND SCOPE PECR

 

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

 

B2C

 

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

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

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

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

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

 

 

E-COMMERCE INFORMATION 

 

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

 

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

 

(a) Be clearly identifiable as a commercial communication

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

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

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

(Art. 7 ECR)

 

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

 

CONSENT 

 

 

INDUSTRY CODES 

 

 

B2B

 

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

 

SMS / MMS

 

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

 

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

 

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

 

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

 

 

 

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International

SECTION C: DIRECT ELECTRONIC COMMUNICATIONS

 

 

Direct Marketing of Goods and Services in EU

ICLG April 2024. Clear and informative and (EN)

2024 GDMA International email benchmark 

Posted June 2024

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

  • For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN 2024), which applies to all channels. Where there are content rules specific to the channels in this section, we show them below
  • The channel rules shown here are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
  • Chapter C of the ICC Code (full code linked above): Direct Marketing and Digital Marketing Communications; General Provisions of the ICC Code will also apply
  • Directive 2000/31/EC on electronic commerce carries the rules on information to be provided in commercial communications in an e-commerce context; extracts below 
  • Directive 2002/58/EC on privacy and electronic communications carries the rules on privacy/ consent, setting out the prevailing European opt-in regime; extracts below
  • GDPR may apply if processing personal data; check privacy issues with specialist advisors 
  • See this November 2021 judgement from CJEU re unsolicited 'Inbox advertising' and related article from GALA/ Lexology here 

 

 
LEGISLATION

 

Directive 2002/58/EC; Article 13

Unsolicited communications

 

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

* Repealed; GDPR applies 

 

Directive 2000/31/EC: Article 5
General information to be provided in an e-Commerce context

 

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

 

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

 

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

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

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

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

 

Section 2: Commercial communications
Article 6

 

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

 

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

 

 

Article 7
Unsolicited commercial communication

 

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

 

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

Sector

SECTION C: MARKETERS' OWN WEBSITES

 

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

 

24/6/21

 

SEE UPDATE ABOVE The U.K. Government published 'Consultation outcome: Introducing further advertising restrictions on TV and online for products high in fat, salt and sugar: government response'. Key points are: 

 

...........introduce, simultaneously at the end of 2022, a 9pm TV watershed for HFSS products and a restriction of paid-for HFSS advertising online
.................all on-demand programme services (ODPS) under the jurisdiction of the UK, and therefore regulated by Ofcom, will be included in the TV watershed for HFSS advertising
..................non-UK regulated ODPS will be included in the restriction of paid-for HFSS advertising online because they are outside UK jurisdiction

 

 

CONTEXT

 

The same principle that applies in paid space also applies in non-paid space such as marketers’ own websites and SNS spaces: if the communication from the owner is a marketing communication, it’s covered. The CAP definition is here Definition Material “by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that is directly connected with the supply or transfer of goods, services, opportunities and gifts, or which consist of direct solicitations of donations as part of their own fund-raising activities.” More from the Remit coverage of these spaces here

 

  • The content rules for Food and Soft Drinks in Section B above apply, except those specific to Broadcast. The general content rules, i.e. those for all product sectors, also apply
  • Advertising that directly or indirectly promotes an HFSS product cannot appear in children’s media
  • Advertising for HFSS products cannot appear in other media where children make up over 25% of the audience
  • In this owned context, the ASA will require advertisers to provide data of the website audience/ usage. This is the primary point of reference. In the event that data is limited or even non-existent, the ASA will take a subjective decision on the basis of the websites’ likely appeal. Language, imagery, themes and specific content are likely to play a part in this assessment
  • This ruling of 6 March 2019 made against a Cadbury's 'Freddo' promotion is significant in the context of targeting children on owned websites

 

 

 

Implementation Guidance point 5 for company owned websites and social media profiles

Commitments enhanced July 2021, effective January 2022

 

 

 

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General

SECTION C: MARKETERS' OWN WEBSITES

 

 

CONTEXT 

 

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

 

 

CORE RULES

 

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

 

 

RULINGS RELATED TO UGC

 

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

 

 

VLOGGING GUIDANCE AND RULINGS 

 

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

 

 

Vlogging Advertising Guidance

 

 
 

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

 

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

 

 

RELEVANT RULINGS 

 

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

 

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

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

 

 

THE LAW RELATED TO IDENTIFICATION/ AVMS

 

  • The Consumer Protection from Unfair Trading Regulations 2008 (CPRs), derived from the Unfair Commercial Practices Directive 2005/29/EC, provides in Schedule 1 that a commercial practice ‘in all circumstances considered unfair’ is:
     
    • Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial) Art. 11
    • Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer

 

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

 

 

SOME EDPB GUIDANCE

 

 

 
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International

 

CONTEXT

 

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

 

APPLICABLE SELF-REGULATION, LEGISLATION AND GUIDANCE 

 

ICC Advertising and Marketing Communications Code (EN 2024); Chapter C Direct Marketing and Digital Marketing Communications

Directive 2002/58/EC on privacy and electronic communications

Directive 2000/31/EC on electronic commerce

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

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

EASA Best Practice Recommendation on Digital Marketing Communications 2023

 

Standard rules

 

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

 

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

Unsolicited communications

 
  1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent
  2. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use
  3. Member States shall take appropriate measures to ensure that, free of charge, unsolicited communications for purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers concerned or in respect of subscribers who do not wish to receive these communications, the choice between these options to be determined by national legislation
  4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited
  5. Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected
 
Directive 2000/31/EC on e-Commerce: Article 5
General information to be provided
 
  1. In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information
     
(a) The name of the service provider
(b) The geographic address at which the service provider is established
(c) The details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner
(d) Where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register
(e) Where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority
(f) As concerns the regulated professions
 
- any professional body or similar institution with which the service provider is registered
- the professional title and the Member State where it has been granted
- a reference to the applicable professional rules in the Member State of establishment and the means to access them
 
(g) Where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment(29)
  1. In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs
 
Section 2: Commercial communications
Article 6
 
Information to be provided: In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions:
 
  1. The commercial communication shall be clearly identifiable as such
  2. The natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable
  3. Promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously
  4. Promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously
 
Article 7. Unsolicited commercial communication
 
  1. In addition to other requirements established by community law, member states which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient
  2. Without prejudice to Directive 97/7/EC and Directive 97/66/EC, member states shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves
 
Directive 2005/29/EC on Unfair Commercial Practices (UCPD)
Article 7. Misleading omissions (includes reference to 'Invitation to Purchase')

 

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

 

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

 

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

 
Directive 2018/1808 amending the AVMS Directive 

 

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

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

 

GUIDANCE

 

EU Guidance/ opinion documents

 

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

 

SOCIAL NETWORK SITES

 

  1. FACEBOOK

  1. INSTAGRAM 
  1. TWITTER:
  1. YOUTUBE: advertiser friendly content guidelines here:
  1. SNAPCHAT:
  1. GOOGLE +
  1. TIK TOK

 

 

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7. Native Advertising

Sector

SECTION C: NATIVE ADVERTISING

 

 

This is the technique of marketing communications ‘blending’ into a publisher’s content. Wherever it appears, advertising must be clear as such, or it contravenes Consumer Protection legislation and the CAP Code (General Sections 2 – recognition of marketing communications; see General tab below). IAB Europe’s Online Native Advertising Guidance provides some categories of native ads, some good practice recommendations, and a summary of EU rules. Category-specific rules are immediately below

 

 

  • The Content rules for Food and Soft Drinks in Section B above apply to marketing communications in all media, except those specific to Broadcast. The 'General' content rules, i.e. those for all product sectors, also apply
  • Advertising that directly or indirectly promotes an HFSS product cannot appear in children’s media
  • Advertising for HFSS products cannot appear in other media where children make up over 25% of the audience
  • CAP’s Recognition of advertising: online marketing to children under 12 provides guidance
  • Infant formula advertising is confined to specialist press
  • Note that the Channel rules set out here are specific to the Food and Soft Drinks sector; the Channel rules that apply to all sectors, found under the General tab below, also apply. These include detailed 'recognition rules'

 

 

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General

SECTION C: NATIVE ADVERTISING

 

 

CONTEXT

 

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

 

SUMMARY

 

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

 

KEY RULES 

 

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

 

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

 

CAP NEWS AND GUIDANCE 

 

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

 

Recognising ads: Contextually targeted branded content

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

Ensure advertorials are distinguishable from editorial content

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

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

 

  1. Advertising guidance 13 March 2017:

 

     

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

 

  • The Code requires marketing communications to be readily recognisable:
     

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

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

 

Content of advertisement features

 

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

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

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

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

 

 RULINGS ON DISCLOSURE

 

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

OTHER GUIDELINES 

 

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

 

THE LAW

 

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

 

  • Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial) Art. 11
  • Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer. Art. 22
  • Regulation 6 of the CPRs provides: 1) A commercial practice is a misleading omission if, in its factual context... (a)the commercial practice omits material information, (b)the commercial practice hides material information, (c)the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or (d)the commercial practice fails to identify its commercial intent, unless this is already apparent from the context, and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise

 

 

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International

SECTION C: NATIVE ADVERTISING

 

 

NATIVE

 

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

 

APPLICABLE  SELF-REGULATION LEGISLATION AND GUIDANCE

 

ICC Advertising and Marketing Communications Code (EN 2024)

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

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

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

 

Standard rules

 

  • For content rules in all channels, refer to the earlier content section B. The principal source of general international content rules is the ICC Advertising and Marketing Communications Code (EN 2024), which applies to all channels; the native technique is no different in that if it's advertising, it's subject to the rules
  • These channel rules are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth publications; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website

 

Self-regulation: key rules from the ICC Code
2024 amends in italics 

 

Identification and transparency (Art. 7)

 

  • Marketing communications should be clearly distinguishable as such, whatever their form and whatever the medium used. When an advertisement, including so-called “native advertising”, appears in a medium containing news or editorial matter, it should be so presented that it is readily recognisable as an advertisement and where appropriate, labelled as such. The true commercial purpose of marketing communications should be transparent and not misrepresent their true commercial purpose. Hence, a communication promoting the sale of a product should not be disguised as, for example, market research, consumer surveys, user-generated content, private blogs, private postings on social media or independent reviews.
  • Marketing communications, regardless of format or medium, should be easily identifiable, allowing consumers to clearly distinguish between commercial and non-commercial content
  • Identification disclosures should be prominent, clear, easily legible and appear in close proximity to the commercial message where they are unlikely to be overlooked by consumers
  • Marketing communications should be transparent about their true commercial purpose, and not misrepresent it. Hence, a communication promoting the sale of goods, or the contracting of a service should not be disguised, for example as news, editorial matter, market research, consumer surveys, consumer reviews, user-generated content, private blogs, private postings on social media or independent reviews etc.
  • In the case of mixed content, such as with news or editorial matter or social media, the marketing communication element should be made clearly distinguishable as such, and its commercial nature should be transparent. It should be so presented that it is readily and immediately recognisable as a marketing communication and where appropriate, labelled as such.

 

 

Identity of the marketer (Art. 8)

 

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

 

Legislation 

 

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

Commercial practices which are in all circumstances considered unfair

 

  • 11. Using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial). This is without prejudice to Council Directive 89/552/EEC

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

 

 

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8. Telemarketing

Sector

 

 

Following feedback, we no longer cover Telemarketing 

General

 

 

Following feedback, we no longer cover Telemarketing

International

 

Following feedback, we no longer cover Telemarketing 

9. Direct Postal Mail

Sector

SECTION C: DIRECT POSTAL MAIL

 

 

KEY RULES

 

  • The Content rules set out in Section B apply to marketing communications in this channel, except those rules specific to Broadcast channels; the 'General' content rules, i.e. those for all product sectors, also apply
  • Advertising that directly or indirectly promotes an HFSS product cannot appear in children’s media
  • Advertising for HFSS products cannot appear in other media where children make up over 25% of the audience
  • Infant formula advertising is confined to specialist press
  • Note that the Channel rules set out here are specific to the Food and Soft Drinks sector; the Channel rules that apply to all sectors, found under the General tab below, also apply. These include, for example, statutory Consent and Information requirements related to Data Processing

 

 

 

  • Companies should not promote products which do not meet the EU Pledge common nutrition criteria directly to children under 13, e.g. through email, telemarketing, mobile, SMS or direct mail and other forms of direct promotions. Sampling (outside the school environment) remains outside the scope of this commitment (pt. 8 Implementation Guidance)

  • Commitments enhanced July 2021, effective January 2022

 

 

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General

SECTION C: DIRECT POSTAL MAIL

 

 

OVERVIEW

 

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

 

  Privacy issues should be reviewed with specialist advisors

 

 

Opting out

 

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

 

 
CAP Code Section 10

 

Extracts only 

 

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

 

 

Consent 

 

And the right to object

 

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

 

 
Required information 

 

  • Under Rule 2.1 the CAP Code provides that ‘marketing communications must be obviously identifiable as such’, and from Recognising marketing communications: Overview: ‘The medium or targeting will also be relevant when deciding what is necessary to ensure that consumers know they are viewing a marcom. Consumers should be able to tell from the envelope itself that a direct mailing is a marketing communication.  For more information see 'Claims on Envelopes'.’
  • How to push the envelope (without breaking the rules). CAP News, 27 Aug 2020. Includes key rulings on the issue of identification
  • Members must clearly identify the advertiser on any one-to-one marketing communication that they send or instigate (DMA Code, rule 2.2)
  • If the mailing constitutes an 'invitation to purchase' (a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of that commercial communication and thereby enables the consumer to make a purchase), Regulation 6 of The Consumer Protection from Unfair Trading Regulations 2008 applies, meaning that certain information must be included in the marcom. Regulation 6 requirements and the CAP Code equivalent from Misleadingness Section 3 have been assembled in a summary here

 

 

Bombardment

 

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

 

 
B2B

 

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

 

 

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International

SECTION C: DIRECT POSTAL MAIL

 

 

Applicable self-regulation and legislation 

 

Standard rules

 

  • For content rules, refer to the earlier content section B. The principal source of general international content rules is the ICC code linked immediately above, most of which content rules apply to all channels
  • The UCPD referenced and linked above will also apply to direct postal mail; this legislation provides a broad framework regulating commercial practices of all kinds; articles 6 and 7 establish regulation of misleading actions and misleading omissions respectively 
  • Channel rules in this international context are ‘general’ cross-border regulations, i.e. those channel rules that apply to product sectors that do not attract particular restrictions in, for example, youth databases; rules for channel-sensitive product sectors such as alcohol or gambling can be found under their respective headings on the main website
  • There isn't really a common set of self-regulatory general channel rules that cross borders for direct postal mail (largely a market activity), though article 22 (data protection and privacy) of the iCC Code linked above comes closest, but there is a common principle: unless you have consent to process their personal data and send them material, in other words they have 'opted in', you can't send consumers marketing communications. Postal mail to e.g. 'the occupier' of individual addresses, is generally permitted, though some countries have arrangements whereby local communities display signs preventing, or trying to prevent, delivery.
  • From legislation, the GDPR will apply if processing personal data (that which can identify an individual)

 

 

Legislation

 

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

 

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

 

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

 

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

 

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

 

 

Guidance

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

 

 

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10. Event Sponsorship/ Field Marketing

Sector

SECTION C: EVENTS/ SPONSORSHIP

 

 

KEY RULES

 

  • There are no channel rules from authorities specifically for sponsorship of events/ field marketing by the Food and Soft Drinks sector
  • Event Sponsorship per se (as opposed to sponsorship of e.g. broadcast programmes) is not within CAP/ASA remit, but promotional material such as leaflets, brochures etc. associated with sponsorship is subject to the content rules set out in section B, except those rules specific to broadcast. The general content rules, i.e. those that apply to all product sectors, should also be observed
  • Advertising that directly or indirectly promotes an HFSS product cannot appear in children’s media. Note: events/ sponsorship may not technically be identified in the new rules; avoiding events that are child-oriented would obviously be in line with the spirit of the Code
  • Advertising for HFSS products cannot appear in other media where children make up over 25% of the audience
  • Note that the channel rules set out here are specific to the Food and Soft Drinks sector; the channel rules that apply to all sectors, found under the General tab below, also apply. These include sponsorship rules from the iCC, found under Chapter B of the ICC Code

 

 

 

  • Members do not conduct food or beverage marketing communications to children in primary schools, unless requested by/ agreed with school administrations for educational purposes
  • Commitments enhanced July 2021, effective January 2022

 

 

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General

SECTION C: EVENTS/ SPONSORSHIP

 

 

NEWS / ISSUES  / COMMENTARY

 

PRIME sued by US Olympic committee

Lewis Silkin July 22, 2024

Sporting events: IP risks and considerations
Walker Morris/ Lex June 25, 2024

Ambush marketing: the European summer of sport
Taylor Wessing May 16, 2024

Olympics 2024 and the Ad Rules. CAP News 09 May 2024

GUIDE: The Olympic Games 2024 - Beating around le ambush

Lewis Silkin 25 January, 2024. Event recording April 8 here

 

KEY RULES 

 

 

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

 

 

 

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International

SECTION C: EVENTS/ SPONSORSHIP

 

 

Pilot Project Relaxes Olympic Games' Rule For Participating Brands

Marks & Clerk July 19, 2024 

Paris Olympics & Paralympics - Part 2: What could possibly go wrong?

Squire Patton Boggs july 16, 2024

GUIDE: The Olympic Games 2024 - Beating around le ambush

Lewis Silkin 25 January, 2024

 

Self-regulation

 

  • Advertising associated with sponsorship activity is likely to be subject to content rules; these can be found in the earlier content section B, or from the ICC Code linked below 
  • ICC Advertising and Marketing Communications Code (EN 2024): Chapter B Sponsorship. 2024 amends in italics 

 

B1: Principles governing sponsorship

 

  • All sponsorship should be based on contractual obligations between the sponsor and the sponsored party
  • Sponsors and sponsored parties should set out clear terms and conditions with all other partners involved, to define their expectations regarding all aspects of the sponsorship deal
  • Sponsorship should be recognisable as such
  • The terms and conduct of sponsorship should be based upon the principle of good faith between all parties to the sponsorship
  • There should be clarity regarding the specific rights being sold and confirmation that these are available for sponsorship from the rights holder. Sponsored parties should have the absolute right to decide on the value of the sponsorship rights that they are offering and the appropriateness of the sponsor with whom they contract
  • There should be clear communication about the specific rights available for sponsorship from the rights holder, including the timing of the sponsorship commitment and the scale of coverage, such as territory. Sponsored parties should retain the sole discretion to determine the value of the sponsorship rights they offer and the suitability of a potential sponsor
  • Furthermore, both parties should reserve the right to terminate the sponsorship agreement based on the terms outlined in the contract

 

B2: Autonomy and self-determination

 

  • Sponsorship should respect the autonomy and self-determination of the sponsored party in the management of its own activities and properties, provided as long as the sponsored party fulfills the obligations set out in the sponsorship agreement  meets the requirements set in the sponsorship agreement and those actions do not damage the reputation of the sponsor

 

B3: Imitation and confusion

 

  • Sponsors and sponsored parties, as well as other parties involved in a sponsorship, should avoid imitation of the representation of other sponsorships where such imitation might mislead or generate confusion, even if applied to non-competitive products, companies or events
  • Both sponsors and sponsored parties, along with anyone else involved, should avoid imitation of other sponsorships if it could mislead or cause confusion, even with non-competing products, businesses or events

 

 B4: 'Ambushing' of sponsored properties

 

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

 

B5: Respect for the sponsorship property and the sponsor

 

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

 

B6: The sponsorship audience

 

  • The audience should be clearly informed of the existence of a sponsorship with respect to a particular event, activity, programme including branded giveaways and similaor person and the sponsor’s own message should not be likely to cause offence. Due note should be taken of existing professional ethics of the sponsored party. Any posts on social media by the sponsored party should be transparent and properly identified. The sponsor should also be mindful of the professional values of the sponsored party and audience
  • This article is not, however, intended to discourage sponsorship of avant-garde or potentially controversial artistic/cultural activities, or to encourage sponsors to exercise censorship over a sponsored party’s message
  • Branded sponsorship or entertainment events that primarily target children or teens should comply with Chapter E – Children and Teens

 

B7: Data capture/ data sharing

 

  • If an individual’s personal data are used in connection with sponsorship, the provisions of article 19 22  are applicable

 

B8: Artistic and historical objects

 

  • Sponsorship should not be conducted in such a way as to endanger artistic or historical objects
  • Sponsorship should not put art or historical items at risk
  • Sponsorship that aims to safeguard, restore, or maintain cultural, artistic or historical properties or their diffusion, should respect the public interest related to them
  • Where a sponsorship is meant to protect, restore, or maintain cultural, artistic or historical properties or spread awareness about them, it should respect the public interest in them

 

B9: Social and environmental sponsorship

 

  • Both sponsors and sponsored parties should take into consideration the potential social or environmental impact of the sponsorship when planning, organising and carrying out the sponsorship
  • Any sponsorship message fully or partially based on a claim of positive (or reduced negative) social and/or environmental impact should be substantiated in terms of actual benefits to be obtained. Parties to the sponsorship should respect the principles set out in the ICC Business Charter for Sustainable Development.
  • If a sponsorship message claims to have a positive social or environmental effect (or less harm), it should be backed up with evidence of actual benefits. Parties to the sponsorship should respect the principles set out in the ICC Business Charter for Sustainable Development
  • Any environmental claim made with respect to the sponsorship should conform to the principles set out in Chapter D, Environmental Claims in Marketing communications
  • If the sponsorship makes any environmental claims, they should align with the rules in Chapter D and the ICC Framework for Responsible Environmental Marketing Communication

 

B10: Charities and humanitarian sponsorship

 

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

 

B11: Multiple sponsorship

 

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

 

 

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11. Sales Promotion

Sector

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) legislation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National Self-Regulatory codes and Consumer Protection legislation, for example, are checked for any provisions that affect SP and included below. In the case of the UK, Promotional Marketing is anyway part of the Self-Regulatory Codes, relevant extracts from which are shown below 

 

  • Promotional marketing material must observe the Content rules for Food and Soft Drinks in Section B, as well as the 'General' content rules that apply to all product sectors, shown beneath the Sector tab in Section B

 

Promotional marketing rules specific to Food in the UK:

 

  • Marcoms containing promotional offers targeted directly at pre-school or primary school children are prohibited (15.14 CAP/13.9 and 13.13 BCAP)
  • Marcoms featuring a promotional offer must be prepared with a due sense of responsibility (15.13 CAP/13.9 and 13.3 BCAP)   
  • Marcoms must not seem to encourage children to eat or drink a product only to take advantage of a promotional offer: the product should be offered on its merits, with the offer as an added incentive. Marcoms featuring a promotional offer must ensure a significant presence for the product (15.14.1 CAP/13.9.2 BCAP)   
  • Marcoms featuring a promotional offer linked to a food product of interest to children must avoid creating a sense of urgency or encouraging the purchase of an excessive quantity for irresponsible consumption (15.14.2 CAP/13.9.1 and 13.13 BCAP)   
  • Marcoms must not encourage children to eat more than they otherwise would (15.14.3 CAP/ 13.9.4 BCAP)   
  • Marcoms for collection-based promotions must not seem to urge children or their parents to buy excessive quantities of food (15.14.4 CAP/13.9.3 BCAP). In addition, in TV advertising, marcoms must not directly encourage children only to collect promotional items, emphasise the number of items to be collected or create a sense of urgency. If a promotional offer can also be bought, that must be made clear. Closing dates for collection-based promotions must enable the whole set to be collected without having to buy excessive or irresponsible quantities of the product in a short time (13.9.3 and 13.13 BCAP)
  • Promotions that require a purchase to participate and include a direct exhortation to make a purchase must not be addressed or targeted to children (CAP 5.7).
  • Marcoms must not:
     
    • Use pester power which advise or ask children to buy or ask their parents or other adults to make enquiries or purchases for them (15.16 CAP/13.12, 13.12.1 BCAP)
    • Try to sell to children by appealing to their emotions e.g. fear, pity, self-confidence, or suggest that the product confers superiority e.g. success, confidence etc. (15.16.1 CAP/13.12.2, 13.12.3 BCAP)
    • Use 'high pressure' or 'hard sell’ techniques (15.16.2 CAP/13.12.4 BCAP)
    • Give the impression that products/ prices are easily affordable for children or their families (15.16.3 CAP)
    • Use words like ‘just’ or ‘only’ to describe the price of a children's product (television only - 13.12.5 BCAP)
       
  • Infant formula: there shall be no point-of-sale advertising, giving of samples or any other promotional device to induce sales of infant formula directly to the consumer at the retail level, such as special displays, discount coupons, premiums, special sales, loss-leaders and tie-in sales (Art. 14 (2) Dir. 2006/141/EC)
  • Note that the Channel rules set out here are specific to the Food and Soft Drinks sector; the Channel rules that apply to all sectors, found under the General tab below, also apply. These include, for example, some important requirements when running promotions or competitions, or when communicating price in a promotional context

 

 

EU PLEDGE

 

Implementation guidance

Commitments enhanced July 2021, effective January 2022

 

 

 

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General

SECTION C: SALES PROMOTIONS

 

 

ISSUES/ NEWS/ RULINGS

 

Avoid your ads taking a turn for the worst this Black Friday
CAP News October 24, 2024

Nasty Gal ruling Sept 11, 2024. LS here

Look at this! Top tips for advertising promotions
CAP News August 22, 2024

Debenhams up to 60% off. ASA ruling July 31, 2024

Digital, Commerce & Creative 101: Running prize promotions 
Lewis Silkin/ Lex June 18, 2024

Not a pretty promotion. ASA ruling May 16, 2024

March 2024 RRP pricing guidance here and here from CAP 

‘Free’ claims – Are you free to say what you like?
CAP News April 25, 2024

Premier Inn ruling. Prices 'from;' May 1, 2024

 

CONTEXT

 

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

 

Lotteries

 

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

 

Principal sources

 

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

 

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

 

Other CAP guidance

 

Don’t pay the price for your “Free Trials” advertising. CAP News 14 September, 2023

Pricing and charges'Helpful information on the advertising rules more for the pricing of products and services and additional charges, not including legally required costs such as taxes or VAT'

Make sure the price is right: using reference pricing in ads. CAP News 22 June,  2023

It’s the final countdown… but is it really? CAP News 20 Apr 2023 re 'countdown clocks'

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

Promotional marketing: Prize winners Advice online 26 October 2021

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

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

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

Promotional Marketing for the Win CAP News 15 Aug 2018

Promotional marketing: Competitions Advice online 7 February, 2023

 Promotional marketing: prize draws Advice online 24 Sep 2021

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

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

 

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

 

Relevant rulings 

 

  1. Emma Mattresses. Website and poster; ruling March 2022, activity September 2021.Misleading savings claims and introductory offers which did not make clear that the lower price was an introductory price; misleading implication that discount offers were time-limited when using a countdown clock; significant information about offers, such as the start and end date, not made clear in ads. Other than that, fine.
  2. I Saw It First. Fashion retail. Incorrect promotional pricing. March 2021. I Saw it First Ltd explained that the overlay was not applicable to the 75% off promotion and was shown in error on that day for a couple of minutes. I Saw it First Ltd further explained that they had added the overlay to a category and were removing the products that were no longer applicable. They stated that going forward they would ensure products were always moved out before promotional updates were completed.
  3. An Instagram post by PrettyLittleThing on 10 February 2021, ruling September 1. The promotion was considered not to have been administered fairly and therefore transgressed rules 8.2, 8.14 and 8.24
  4. A Cadbury's promotion on www.cadburyinventor.co.uk, seen on 19 July 2021, that offered consumers the opportunity to design their own chocolate bar, featured terms and conditions which included the judging process. The complainant requested the names of the judges on the panel but was not provided with them. Ruling here, and see 8.26 above 

 

The law

 

There are some statutory requirements, largely reflected in self-regulation but not necessarily in this promotional marketing context, that apply. These are to do with pricing and with invitation to purchase, both from the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). The enforcer of the CPRs is the Competition and Markets Authority (CMA), 'the UK’s principal competition and
consumer protection authority.' In March 2023, the CMA published Using urgency and price reduction claims online

 

Pricing and other promotional practices

 

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

 

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

 

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

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

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

 

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

 

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

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

 

Invitation to purchase

 

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

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

 

 

 

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International

SECTION C: SALES PROMOTIONS

 

 

CONTEXT

 

This website was created to provide international rules on marketing communications; it does not claim authority on specific Sales Promotions (SP) regulation, especially retail legislation. However, in the course of extensive research in marketing, relevant rules will be included. National self-regulatory codes and consumer protection legislation, for example, are checked for any provisions that affect SP and included below. Content in SP material is likely to be subject to the rules set out in the earlier section B as well as more specific requirements related to pricing, promotional conditions etc. .

 

APPLICABLE SELF-REGULATION AND LEGISLATION 

 

ICC Advertising and Marketing Communications Code (EN 2024), Chapter A Sales Promotion, Chapter C Direct Marketing

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

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

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

 

SELF-REGULATORY CLAUSES 

 

ICC Code Chapter A Sales Promotion 

Clauses are from the 2024 edition of the Code 

 

A1: Principles governing sales promotions

 

  • All sales promotions should interact with consumers in a fair, transparent, respectful and honourable way while upholding the Code’s data protection and privacy principles
  • The design and implementation of sales promotions should align with the consumers’ reasonable expectations as set by the promotion
  • The administration of sales promotions and the fulfilment of any obligation arising from them should be prompt and efficient and consistent with the presentation of the promotion
  • The terms and conduct of all sales promotions should be transparent to all participants
  • All sales promotions should be framed in a way which is fair to competitors and others in the market
  • Sales promotions that primarily target children or teens should comply with Chapter E – children and teens
  • No promoters, intermediaries or others involved should do anything likely to bring sales promotions into disrepute

 

A2: Transparency and terms of the offer

 

Sales promotions should be transparent. This means that the terms of the offer should be easily identifiable, accessible and straightforward for the consumer, inclusive of any restrictions and limitations. Measures should be taken to avoid exaggerating the value of any promotional item or obscuring or minimising the price of the main product.

 

A3: Presentation

 

Sales promotions should not be designed or presented in a manner that is likely to be misleading about value, nature or participation process.

 

A4: Administration of promotions

 

Sales promotions should be administered using appropriate resources and supervision and should incorporate proper safeguards to ensure that the offer’s administration aligns with the reasonable expectations of consumers. In particular:

  • Promotional items should be sufficient to meet anticipated demand consistent with the terms of the offer. If delay or any other change is unavoidable, consumers should be advised promptly, and necessary steps taken to adjust the promotion of the offer
  • Promoters should be able to demonstrate that they have made a reasonable estimate of the expected response before the event. Phrases like “subject to availability” and similar may be used when demand is significantly difficult to calculate, but not as a general means to relieve the promoter from the obligation to meet consumers’ legitimate expectations
  • When the acquisition of the promotional item is dependent on a purchase or multiple purchases, promoters should ensure promotional items are sufficiently available to match the number of purchases being made, also see Article A6 under Information requirements
  • Defective goods or inadequate services should be replaced, or appropriate financial compensation given. Any proven expenses reasonably incurred by consumers directly due to such deficiencies, should be refunded upon request as soon as possible
  • Complaints should be efficiently and properly handled

 

A5: Safety and suitability

 

  • Care should be taken to prevent promotional items, if used correctly, from exposing consumers, intermediaries, or any other persons or their property to any harm or danger
  • Where appropriate promotional items should be accompanied by any necessary warnings and safety advice. Promoters should ensure that their promotional activities are consistent with the principles of environmental and social responsibility and in particular take reasonable steps to prevent unsuitable, inappropriate or age-restricted materials from reaching children.

 

A6: Presentation to consumers

 

  • Complex rules should be avoided. Rules should be drawn up in language that consumers can easily understand. The chances of winning prizes should not be overstated
  • Where consumers are prompted to engage with content by clicking on a link, or using a similar mechanism, like voice or movement activation, it should be made clear beforehand what the outcome will be, e.g. by specifying the form and nature of the offer. Deceptive practices like “click to reveal code” only to present an offer, should not be used

 

 

Information requirements

 

Sales promotions should be presented so that consumers are informed beforehand of any conditions likely to influence their decision to purchase. Consumers should be able to easily access the terms and other essential information, in particular when accepting the offer. Information should include, where relevant and having regard to the medium used:

 

  • detailed and clear instructions on how to obtain or participate in the promotional offer, including the conditions for receiving promotional items, liability for associated costs, or taking part in prize promotions
  • the main characteristics of the promotional items being offered
  • any time limit on taking advantage of the promotional offer
  • any restrictions on participation (e.g. geographical, employment in a particular company, sector or activity or age-related), availability of promotional items, or stock limitations. In the case of limited availability, e.g. due to unexpectedly high demand or any other exceptional circumstance, the consumer should be informed about alternative arrangements or refunding policies
  • the value of any financial substitutes offered like vouchers, coupons, discount codes or stamps offered where a monetary alternative is available
  • any requirements such as automatic renewals or subscriptions
  • any use of data and privacy clauses
  • any costs involved, including shipping and handling fees taxes, tariffs or duties and payment terms
  • The promotor’s full name and address along with information on how to ask questions or lodge complaints.

Promotions claiming to support a charitable cause should not exaggerate the contribution derived from the campaign. Consumers should be informed, before purchasing the promoted product, how much of the price will be allocated for the cause or the total donation amount.
 

Free entry claims should be used only if the consumer’s path to access is charged at a standard rate, meaning the consumer will not incur any communication cost beyond the maximum of that rate. If a premium rate is applied, this should be clearly disclosed. 

 

Information in prize promotions

 

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

 

  • an overview of the entry process
  • any rules governing eligibility to participate in the prize promotion, as well as any use of data and privacy implications
  • costs associated with participation, excluding communication costs at or below standard rate (mail, telephone and other devices)
  • restrictions or limitations on the number of entries
  • The number, value and nature of prizes to be awarded. If a cash alternative is available instead of a prize, that should be communicated
  • for skills contests, the nature of the contest and the criteria for judging the entries
  • the procedure for selecting winners and awarding prizes
  • the starting and closing dates of the competition
  • the timeline and procedure for notifying winners and publicising results
  • where appropriate, information that prizes may be subject to tax
  • the procedure and time frame for collecting prizes
  • where a jury is involved, the composition of the jury, or the criteria for selecting its members
  • if winners’ images, quotes, audiovisual content or winning contributions will be used in post-event activities and the terms for their use

 

The remaining articles of this chapter, A7 to A10 inclusive, are not included for reasons of space. They can be found in the 2024 ICC Code here. These cover:

 

A7. Presentation to Intermediaries

A8. Particular Obligations of Promoters

A9. Particular Obligations of Intermediaries

A10. Responsibility

 

LEGISLATIVE CLAUSES

 

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

 

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

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

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

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

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

 

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

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

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

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

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

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

 

there is no prize or other equivalent benefit, or

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

 

 

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

 

Article 1

 

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

 

Article 2

 

For the purposes of this Directive:

 

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

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

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

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

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

 

 

Article 3

 

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

 

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

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

 

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

 

Article 4

 

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

 

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

 

Article 5

 

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

Article 6a

 

1.   Any announcement of a price reduction shall indicate the prior price applied by the trader for a determined period of time prior to the application of the price reduction
2.   The prior price means the lowest price applied by the trader during a period of time not shorter than 30 days prior to the application of the price reduction
3.   Member States may provide for different rules for goods which are liable to deteriorate or expire rapidly
4.   Where the product has been on the market for less than 30 days, Member States may also provide for a shorter period of time than the period specified in paragraph 2
5.   Member States may provide that, when the price reduction is progressively increased, the prior price is the price without the price reduction before the first application of the price reduction

 

 

 

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D. Advice & Clearance

General

SECTION D SRO SERVICES

 

 

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

 

 

WEBSITE AUDITS

 

 

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

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

As well as online eLearning courses on various subjects:

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

Overview here:

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

 

 

PRE-CLEARANCE

 

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

 

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

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

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

 

Clearcast is improving the Ad Clearance Process

 

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

 

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

 

 

DISTRIBUTION

 

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

 

 

 

International

SECTION D: SRO SERVICES

 

The ICAS Global SRO database

https://icas.global/srodatabase/

 

EASA (European Advertising Standards Alliance)

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

 

EASA membership

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

 

Link to Best Practice Recommendations

https://www.easa-alliance.org/publication/best-practice-recommendations/

 

EASA Digital Marketing Communications Best Practice Recommendation 

https://www.easa-alliance.org/publications/easa-best-practice-recommendations-digital-marketing-communications/

 

EASA Best Practice Recommendation on Online Behavioural Advertising

https://www.easa-alliance.org/publications/easa-best-practice-recommendation-on-oba-2021/

 

EASA Best Practice Recommendation on Influencer Marketing

https://www.easa-alliance.org/publications/best-practice-recommendation-on-influencer-marketing-guidance_v2023/

 

 

 

 

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E. Links

Sector

SECTION E: LINKS/ SOURCES

 

 

LEGISLATION

 

European food legislation
See: https://ec.europa.eu/food/safety/labelling_nutrition_en

 

Nutrition and health claims

 

EC Regulation 1924/2006 ​of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods. Without prejudice to Directives 2000/13/EC and 84/450/EEC, the use of nutrition and health claims shall not: (a) be false, ambiguous or misleading; (b) give rise to doubt about the safety and / or the nutritional adequacy of other foods; (c) encourage or condone excess consumption of a food; (d) state, suggest or imply that a balanced and varied diet cannot provide appropriate quantities of nutrients in general; (e) refer to changes in bodily functions which could give rise to or exploit fear in the consumer, either textually or through pictorial, graphic or symbolic representations. The preceding clauses are extracts from general principles. Chapter III (and the Annex) covers nutritional claims and the conditions under which they can be made for individual products.and Chapter IV Health claims. Consolidated text:

https://eur-lex.europa.eu/eli/reg/2006/1924/2014-12-13

 

Guidance On the Implementation of Regulation 1924/2006 on Nutrition and Health Claims Made On Foods; (article 9 especially):

https://ec.europa.eu/food/sites/food/files/safety/docs/labelling_nutrition_claim_reg-2006-124_guidance_en.pdf

 

The U.K. government has issued the Great Britain Nutrition and Health Claims register (Jan 2021) and the Annex 'Health claims authorised on the basis of proprietary data.' (Dec 2020). These are to be read with Nutrition and health claims: guidance to compliance with Regulation (EC) 1924/2006 (11 January 2021); implications note here. In Northern Ireland, EU food law will continue to apply, as listed in the Northern Ireland Protocol

 

 

Health claims

 

Commission Regulation (EU) No. 432/2012 of 16 May 2012 establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. This Regulation carries an annex with the complete list of approved health (as opposed to nutrition) claims and their conditions of use. Consolidated text:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02012R0432-20210517

Commission Regulation (EU) No. 1066/2013 of 30th October 2013 refusing to authorise certain health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health. The Regulation sets out the applications for approval of certain claims and explains why they were rejected:

https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32013R1066

 

EU Register of nutrition and health claims made on foods; the EU Register is for information only, showing:

http://ec.europa.eu/nuhclaims/

 

Food information

 

Regulation (EU) No. 1169/2011 of The European Parliament and of the Council of 25th October 2011 on the provision of food information to consumers, While this Regulation is largely to do with labelling, it also incorporates a number of broad requirements for advertising, largely to do with misleadingness on: 1. a) the characteristics of the food and, in particular, as to its nature, identity, properties, composition, quantity, durability, country of origin or place of provenance, method of manufacture or production; (b) by attributing to the food effects or properties which it does not possess; (c) by suggesting that the food possesses special characteristics when in fact all similar foods possess such characteristics, in particular by specifically emphasising the presence or absence of certain ingredients and/or nutrients; (d) by suggesting, by means of the appearance, the description or pictorial representations, the presence of a particular food or an ingredient, while in reality a component naturally present or an ingredient normally used in that food has been substituted with a different component or a different ingredient. 2. Food information shall be accurate, clear and easy to understand for the consumer. 3. Subject to derogations provided for by Union law applicable to natural mineral waters and foods for particular nutritional uses, food information shall not attribute to any food the property of preventing, treating or curing a human disease, nor refer to such properties. (From Article 7 Fair information practices). Consolidated text:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02011R1169-20180101

UK link (this is retained legislation in the U.K.):
https://www.legislation.gov.uk/eur/2011/1169/contents

 

General Food

 

Regulation (EC) No. 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety. Article 16: Presentation: Without prejudice to more specific provisions of food law, the labelling, advertising and presentation of food or feed, including their shape, appearance or packaging, the packaging materials used, the manner in which they are arranged and the setting in which they are displayed, and the information which is made available about them through whatever medium, shall not mislead consumers. Consolidated text:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02002R0178-20210526

 

 

The addition of vitamins and minerals

 

Regulation (EC) No. 1925/2006 of The European Parliament and of The Council of 20th December 2006 on the addition of vitamins and minerals and of certain other substances to foods. Scope: Provisions of this Regulation do not apply to food Supplements covered by Directive 2002/46/EC, but apply without prejudice to specific provisions for a) foods for particular nutritional uses and, in the absence of specific provisions, compositional requirements of such products rendered necessary by the particular nutritional requirements of the persons for whom they are intended; (b) novel foods and novel food ingredients; (c) genetically modified food; (d) food additives and flavourings; (e) authorised oenological (winemaking) practices and processes. Article 7. 1. The labelling, presentation and advertising of foods to which vitamins and minerals have been added shall not include any mention stating or implying that a balanced and varied diet cannot provide appropriate quantities of nutrients. Where appropriate, a derogation (exemption or amendment) concerning a specific nutrient may be adopted in accordance with the procedure referred to in Article 14 (2). 2. The labelling, presentation and advertising of foods to which vitamins and minerals have been added shall not mislead or deceive the consumer as to the nutritional merit of a food that may result from the addition of these nutrients. Consolidated text:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02006R1925-20210408

 

 

Regulation (EU) 609/2013 on food for specific groups (FSG)

 

Regulation 609/2013 is intended to simplify and harmonise the rules governing the compositional and information requirements of four categories of food intended for 'vulnerable' groups of people. These food groups were formerly classified as 'Foodstuffs intended for particular nutritional uses' (so-called 'Parnuts') and regulated under 'Framework' Directive 2009/39/EC, and a series of more specific Directives. The four groups and their specific Directives are: 

 

Infant formulae and follow-on formulae: Directive 2006/141/EC 
 Processed cereal-based foods and baby foods for infants and young children: Directive 2006/125/EC
 Dietary foods for special medical purposes: Directive 1999/21/EC
 Foods intended for use in energy-restricted diets for weight reduction: Directive 96/8/EC

 

 

From 20 July 2016, the FSG Regulation repealed and replaced the Framework Directive, abolishing the concept of foods for particular nutritional use. Replacing the Directives above are 'delegated acts', which provide specific compositional and information requirements for each of the food categories. Until the dates of application of these delegated acts (see below), the criteria set out in the Directives above will continue to apply. The FSG Regulation also excludes some food groups, originally qualified as 'Parnuts', from its scope on the basis that they can be regulated under the EU framework applicable to ‘normal’ food. The foods concerned are here.

 

Advertising

 

  • Advertising of foods for specific groups shall provide information for the appropriate use of such food, and shall not mislead, or attribute to such food the property of preventing, treating or curing a human disease, or imply such properties (Art. 9 (5) FSG Reg). Article 10 contains advertising requirements for infant formulae and follow-on formulae; see below
  • Specific advertising rules from Delegated Acts adopted by the EU Commission under Article 11(1) FSG:

 

  • For Foods for infants and young children: infant formulae and follow-on formulae: Delegated Regulation (EU) 2016/127; see Arts 6.6, 8, 9, 10 for advertising related provisions extracted here. Notably, the FSG Regulation extends the existing restriction (see Art. 13(5) Dir. 2006/141/EC below) on the use of pictures or text which may idealise the use of formulae to the labelling of follow-on formulae (previously only applicable to infant formulae), and prohibits nutrition and health claims for infant formula. Adopted on 25 September 2015 and applicable as of 22 February 2020, or 22 Feb 2021 for protein hydrolysate based formulae. Until the application dates, the requirements established in Directive 2006/141/EC will remain in force; see later entry
  • For food for special medical purposes (FSMP): Delegated Regulation 2016/128; Article 7 prohibits the use of nutrition and health claims for FSMP. It was adopted on 25 September 2015 and applies from 22 February 2019. Until that date, the rules of Directive 1999/21/EC remain applicable
  • FoFoods intended for total diet replacement for weight control: Delegated Regulation 2017/1798 applies from October 2022. Regulation 609/2013 covers claims for this product group under article 9 and Regulation 1924/2006 on nutrition and health claims made on foods also applies (see s. 12 (b) and Art. 13 (1c))
  • For Foods for infants and young children: processed cereal-based foods and other baby foods: Delegated Act still awaited. Until its finalisation, the rules of Directive ​2006/125/EC remain applicable (no provisions specific to advertising; the directive includes labelling requirements)

 

The Regulation 609/2013 is here (consolidated text):

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02013R0609-20210428

 

 

infant formulae and follow-on formulae

 

Commission Directive 2006/141/EC of 22 December 2006 on infant formulae and follow-on formulae.  Applicable until 22 February 2020; for formulae manufactured from protein hydrolysates, until 22 February 2021. Lays down the compositional and information requirements of infant formulae and follow-on formulae, adopted under Framework Directive 2009/39/EC. Article 13 (clauses abbreviated): advertising of infant formulae and follow-on formulae should provide necessary information about the appropriate use of the products so as not to discourage breast feeding. The use of the terms ‘humanised’, ‘maternalised’, ‘adapted’, or similar terms is prohibited; advertising of infant formulae must include, preceded by the words ‘Important Notice’ or their equivalent: (a) a statement concerning the superiority of breast feeding (b) a statement recommending that the product be used only on the advice of independent persons having qualifications in medicine, nutrition or pharmacy, or other professionals; advertising of infant formulae shall not include pictures of infants, nor other pictures or text which may idealise the use of the product. It may, however, have graphic representations for easy identification of the product and methods of preparation (Art. 13.5); advertising of infant formulae may include nutrition and health claims only in the cases and conditions set out in Annex IV; Infant formulae and follow-on formulae shall be advertised so that it enables consumers to make a clear distinction between the products. Under Article 14, advertising of infant formulae is restricted to publications specialising in baby care and scientific publications, is subject to the conditions laid down in Article 13, and may contain only information of a scientific and factual nature. Point-of-sale advertising, sampling or any other promotional device to induce sales of infant formula directly to the consumer at the retail level is prohibited.

http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32006L0141

 

 

Foods intended for energy-restricted diets for weight reduction

 

Directive 96/8/EC of 26 February 1996 on foods intended for use in energy-restricted diets for weight reduction. Adopted under the old legislative framework of Directive 2009/39/EC, the Directive lays down compositional and labelling requirements for foods intended to be used in energy-restricted diets for weight reduction. These foods are divided into two categories: total diet replacement products for weight control (between 3,360 kJ (800 kcal) and 5,040 kJ (1,200 kcal)) and meal replacement products for weight control (between 840 kJ (200 kcal) and 1,680 kJ (400 kcal). The labelling, advertising and presentation of the products concerned shall not make any reference to the rate or amount of weight loss which may result from their use (Art. 5 (3)). This restriction is repeated in Article 12 (b) of the Nutrition and Health Claims Regulation 1924/2006/EC. Under Recitals 1- 5, Directive 2007/29/EC, which amended Directive  96/8/EC, Regulation 1924/2006/EC will apply to foods intended for use in energy-restricted diets for weight reduction. For such foods, it is permitted to make health claims describing or referring to slimming or weight control or a reduction in the sense of hunger or an increase in the sense of satiety or to the reduction of the available energy from the diet, provided the claims comply with the conditions laid down in Article 13 (1) of Regulation 1924/2006/EC. For meal replacement products for weight control, Directive 96/8/EC has not applied since 20 July 2016; these products are now regulated by the EU food framework applicable to 'normal' food, such as the Fortified Foods Regulation and Regulation 1924/2006 on Nutrition and Health Claims; see Art. 20.3 FSG Reg. Directive 96/8/EC is here (consolidated text):

http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:01996L0008-20070620

 

 

Food Supplements

 

Directive 2002/46/EC of the European Parliament and of the Council of 10th June 2002 on the approximation of the laws of the Member States relating to food supplements. The Food Supplements Directive (FSD) defines these foods as concentrated sources of nutrients or other substances with a nutritional or physiological effect, alone or in combination, whose purpose is to supplement the normal diet. They are marketed in dose form, i.e., as pills, tablets, capsules, sachets, and liquids, among others (Art. 2 FSD). They are also defined as 'foodstuffs', so regulated as foods within the meaning of Article 2 Regulation 178/2002 (General Food Regulation), which will apply along with Claims Regulation 1924/2006. The Directive encompasses all Food Supplements; however, only the rules applicable to the use of vitamins and minerals in their manufacture are set down in the text; the use of natural ingredients in food supplements, fibre and various plants and herbal extracts, are not covered, so will remain subject to national laws. Regarding provisions for marcoms, articles 6 and 7 respectively require that labelling, presentation and advertising must not attribute to food supplements the property of preventing, treating or curing a human disease, or refer to such properties, and must not include any mention stating or implying that a balanced and varied diet cannot provide appropriate quantities of nutrients in general. 

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32002L0046

Consolidated version:

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02002L0046-20210320

 

 

 

NATIONAL LEGISLATION 

 

Food Information

 

The Food Information Regulations 2014. From Defra’s explanatory memorandum: The main purpose of the Food Information Regulations (‘FIR’) is to put enforcement provisions in place to enable certain provisions of Regulation (EU) No. 1169/2011 of the European Parliament and of the Council on the provision of food information to consumers ('EU FIC'). The EU FIC is a wide-ranging piece of EU legislation regulating food information and requires mandatory particulars on food labels such as: name of food, ingredients list, quantitative indication of ingredients, allergen information, nutrition information, country of origin, date marks, storage conditions. The overall aims of FIC are: to allow consumers to have the information they need to make informed and healthy food choices, and to ensure they are not being misled; and to protect consumers with food allergies and intolerances by providing them with sufficient and clear information to make safe food choices.

http://www.legislation.gov.uk/uksi/2014/1855/regulation/10/made

 

 

Nutrition and health claims

 

The Nutrition and Health Claims (England) Regulations 2007:

http://www.legislation.gov.uk/uksi/2007/2080/note/made

 

Great Britain nutrition and health claims (NHC) register. Register of nutrition and health claims that may be made in commercial communications in Great Britain:

https://www.gov.uk/government/publications/great-britain-nutrition-and-health-claims-nhc-register

 

Department of Health Nutrition and Health claims: Guidance to compliance with Regulation (EC) 1924/2006 on nutrition and health claims made on foods. Updated January 2021. This document is practically essential in this context.

 

 

Addition of Vitamins, Minerals

 

Addition of Vitamins, Minerals, and Other Substances (England) Regulations 2007 recording the establishment of Regulation 1925/2006 (as a Regulation, directly applicable in member states). Article 7 of the EU Regulation references Labelling, Presentation and Advertising, core requirements of which are: “1. The labelling, presentation and advertising of foods to which vitamins and minerals have been added shall not include any mention stating or implying that a balanced and varied diet cannot provide appropriate quantities of nutrients.  2. The labelling, presentation and advertising of foods to which vitamins and minerals have been added shall not mislead or deceive the consumer as to the nutritional merit of a food that may result from the addition of these nutrients”: Article 4 of the national law implements.

http://www.legislation.gov.uk/uksi/2007/1631/contents/made

 

 

Infant Formula and Follow-on Formula

 

The Nutrition (Amendment) and Food for Specific Groups (Food for Special Medical Purposes for Infants, Infant Formula and Follow-on Formula) (Information and Compositional Requirements) (Amendment) Regulations 2021. 'This instrument amends the date of application of the provisions relating to infant formula and follow-on formula made from protein hydrolysates under Commission Delegated Regulation 2016/127 from 22 February 2021 to 22 February 2022. This date change would be for England, Scotland and Wales. It also amends the date of enforcement of the same provisions in England. (Scotland, Wales and Northern Ireland (NI) will similarly amend their enforcing SIs to reflect this new date).' From the explanatory memorandum.

https://www.legislation.gov.uk/uksi/2021/168/introduction/made

 

The Infant Formula and Follow-on Formula (England) Regulations 2007, implementing EC Directive 2006/141/EC. The main purpose of the act is to revoke and remake domestic provisions regarding the composition, labelling and advertising of infant formula and follow-on formula. The legislation, reflected in CAP and BCAP rules, restricts Infant formula advertising to specialist press, requires that follow-on formula advertising cannot allow confusion with Infant formula (Article19), and Article 21 of the Regulations requires that advertisements for infant formula shall only contain information of a scientific and factual nature and that information in advertisements for infant formula shall not imply or create a belief that bottle-feeding is equivalent or superior to breast feeding. Commission Delegated Regulation (EU) 2016/127 of 25 September 2015, applies from 22 February 2020, except in respect of infant formula and follow-on formula manufactured from protein hydrolysates, to which it applied from 22 February 2021.

http://www.legislation.gov.uk/uksi/2007/3521/contents/made

 

The Infant Formula and Follow-on Formula (England) Regulations 2007 (revoked)

https://www.legislation.gov.uk/uksi/2007/3521/note

Schedule 6 Revocations relating to food for special medical purposes

https://www.legislation.gov.uk/uksi/2020/43/schedule/6

DH Guidance note: 

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/204314/Infant_formula_guidance_2013_-_final_6_March.pdf

 

 

Energy-Restricted Diet Foods

 

The Foods Intended for Use in Energy Restricted Diets for Weight Reduction Regulations 1997. Implements Directive 96/8/EC of 26 February 1996 on foods intended for use in energy-restricted diets for weight reduction, as amended by Directive 2007/29/EC. Article 4 states:  No person shall sell any relevant food the labelling, advertising or presentation of which refers to the rate or amount of weight loss which may result from its use or to a reduction in the sense of hunger or an increase in the sense of satiety. This italicised section may have been amended but we can’t trace the amendment. Article 1 of Directive 2007/29/EC amended Directive 96/8/EC, allowing claims related to a reduction in the sense of hunger or an increase in the sense of satiety, provided the claims comply with the conditions laid down in Article 13 (1) of Regulation 1924/2006/EC. The Regulation 609/2013 establishes that Meal Replacement products will be regulated under 1924/2006, and that Total Diet Replacement products will be subject to specific compositional and labelling rules from Commission Delegated Regulation 2017/1798, applicable from October 2022. Meanwhile, Regulation 609/2013 article 9 sets general compositional and information rules for these products.

http://www.legislation.gov.uk/uksi/1997/2182/contents/made

 

Food supplements

 

Food Supplements (England) Regulations 2003 entered into force 1st August 2005. Implemented Directive 2002/46/EC of the European Parliament and of the Council on the approximation of the laws of the Member States relating to food supplements. Relevant article from Chapter 6 (4) “No person shall sell any food supplement which is ready for delivery to the ultimate consumer or to a catering establishment if the labelling, presentation or advertising of that food supplement includes any mention, express or implied, that a balanced and varied diet cannot provide appropriate quantities of nutrients in general“:

http://www.legislation.gov.uk/uksi/2003/1387/contents/made

 

 

Promotion and placement HFSS 

 

The Food (Promotion and Placement) (England) Regulations 2021 coming into force 1st October 2022. The purpose  is to restrict the promotion of HFSS products by location and volume price in medium and large businesses that sell food or drink in England (50 or more employees). Explanatory memorandum here. These restrictions of promotional and presence activity both in-store and online is part of the government's strategy to reduce the incidence of obesity, combining with the advertising restrictions separately announced. 

www.legislation.gov.uk/uksi/2021/1368/contents/made

 

Other national regulations 

 

Mineral waters

 

Directive 2009/54/EC of the European parliament and of the council of 18 June 2009 on the exploitation and marketing of natural mineral waters:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:164:0045:0058:EN:PDF

 

Natural Mineral Water, Spring Water and Bottled Drinking Water (Wales) Regulations 2007:

http://www.legislation.gov.uk/wsi/2007/3165/regulation/15/made

 

Natural Mineral Water, Spring Water and Bottled Drinking Water (England) Regulations 2007

http://www.legislation.gov.uk/uksi/2007/2785/contents/made

Amended by the Food Information Regulations 2014 so that in regulation 2 (1) (interpretation), for the definition of “advertisement” and “advertise” substitute: “advertisement” means a representation in any form in connection with a trade or business in order to promote the supply of goods and “advertise” is to be construed accordingly

 

 

Baby and infant Foods

 

The Processed Cereal-based Foods and Baby Foods for Infants and Young Children (England) Regulations 2003. These Regulations provide for the continued implementation in England of Commission Directive 96/5/EC on processed cereal-based foods and baby foods for infants and young children, as amended by Commission Directives 1998/36/EC and 1999/39/EC and as further amended by Commission Directive 2003/13/EC. These Regulations revoke and replace in  England the Processed Cereal-based Foods and Baby Foods for Infants and Young Children Regulations 1997, as amended. Regulations came into force on 6th March 2005:

http://www.legislation.gov.uk/uksi/2003/3207/introduction/made

 

 

INDUSTRY CODES

 

2010 CAP Code. (The UK Code of Non-broadcast Advertising, Sales Promotion & Direct Marketing) rules on food, food supplements and associated health or nutritional claims. This mandatory Code applies to non-broadcast ads in media including print, posters, cinema, video and DVDs, mobile phones (SMS and MMS), VOD, Internet including brand websites, e-mails, and sales promotions. The Code implements certain provisions of EU law and national legislation derived from these; for example, Regulation EC 1924/2006 on nutrition and health claims made on foods. The prohibition of HFSS Foods advertising to children established in broadcast (see below) was extended to all children’s media from July 2017: 

http://www.cap.org.uk/Advertising-Codes/Non-broadcast-HTML/Section-15-Food,-food-supplements-and-associated-health-or-nutritional-claims.aspx

 

2010 BCAP Code. (The UK code of Broadcast Advertising) rules on food, food supplements and associated health or nutritional claims. This mandatory Code applies to broadcast (TV and Radio) commercials, and teleshopping, and includes a specific prohibition of food or drink products that are assessed as high in fat, salt or sugar (HFSS)* in or adjacent to programmes commissioned for, principally directed at or likely to appeal particularly to audiences below the age of 16:

http://www.cap.org.uk/Advertising-Codes/Broadcast-HTML/Section-13-Food,-food-supplements-and-associated-health-or-nutritional-claims.aspx

 

* Per the nutrient profiling scheme published by the Food Standards Agency (FSA) on 6 December 2005. The DH Nutrient Profiling Model (NPM) was under review as at November 2017 by Public Health England. See p15-18 of CAP’s regulatory statement for details of CAP’s position. The new NPM is expected to be consulted upon by PHE during 2018; the review of the existing model is here. Following the consultation, CAP and BCAP will consider whether they will adopt the new model.

 

 

Guidance and advice notes

 

As these are plentiful, and anyway shown in our Content Section B, we have assembled them into a separate file available here: 

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

To which we add this:

Children and HFSS Ads – Three Lessons from 2019 CAP News Dec 2019 and this:

Getting your weight loss food ads in shape CAP News Jan 2020

And this:

CAP News 22 July 2021. Food for thought: three top tips to make sure your food claims comply with the Ad Codes

 

 

INTERNATIONAL CODES 

 

ICC

 

 

ICC framework for responsible Food and Beverage communication:

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

ICC Advertising and Marketing Communications Code 2018

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

 

 

ASSOCIATIONS AND CODES

 

FDF

 

The Food and Drink Federation (FDF), a trade association representing the UK Food and Drink industry, issues relevant position statements including its Policy Position on "Responsible marketing and Advertising to Children":

http://www.fdf.org.uk/keyissues.aspx?issue=644

 

EU PLEDGE

 

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

 

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

 

UNESDA

http://www.unesda.eu/

 

Soft drink trade association for Europe, Unesda’s commitments include

  • No advertising to children under 12 in print, cinema or broadcast
  • No online advertising to U12s including social media and company-owned websites
  • Responsible behaviour in schools, including no sales in primary schools

 

UNESDA members are soft drinks producers, bottlers and distributors operating across more than five EU markets

 

 

FOODDRINKEUROPE

 

From their website: “FoodDrinkEurope's mission is to facilitate the development of an environment in which all European food and drink companies, whatever their size, can meet the needs of consumers and society, while competing effectively for sustainable growth. FoodDrinkEurope’s contribution is based on sound scientific research, robust data management and effective communication, working within the regulatory framework to ensure that all food and drink issues are dealt with in a holistic manner. The organisation promotes its members’ interests in areas such as food safety and sciencenutrition and health, consumer trust and choice, competitiveness, and environmental sustainability.

 

This is their Guidance on the Provision of Food Information to Consumers:

http://www.fooddrinkeurope.eu/uploads/publications_documents/FDE_Guidance_WEB.pdf

Here are their company members:

http://www.fooddrinkeurope.eu/about-us/members/ - tab3

 

 

 

SEE THE GENERAL TAB BELOW FOR THE LEGISLATION AND CODES THAT AFFECT ALL PRODUCT SECTORS, FOOD AND SOFT DRINKS INCLUDED

 

 

Read more

General

SECTION E SOURCES/ LINKS

 

 

EUROPEAN LEGISLATION
We have kept the listings for this legislation as much of it is retained and it is also for those who may wish to 'export' advertising 

 

GDPR

 

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

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

 

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

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

 

European Data Protection Authority

Article 29 Working Party/ EDPB





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

https://edpb.europa.eu/.

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

Article 29 Working Party archives from 1997 to November 2016: 

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

Four more recent and significant documents:

 

 

 

Commercial practices: UCPD


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

 

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

 

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

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

 

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

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

 

Pricing

 

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

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

 

Comparative advertising

 

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

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

 

Audiovisual media

 

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

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

 

AVMSD amendment

 

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

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

 

E-privacy

 

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

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

 

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

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

 

E-privacy Regulation draft (4 November 2020)

 

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

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

 

E-privacy Regulation draft (10 February 2021)

 

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

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

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

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

 

E-commerce

 

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

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

 

The Digital Services Act

 

Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services and amending Directive 2000/31/EC (Digital Services Act). European Commission pages on the DSA are here. Wikipedia entry is here. Helpful legal commentary, which also addresses the Digital Markets Act, is from DLA Piper/ Lex February 2023: Online advertising: A regulatory patchwork under construction. Key marcoms issues for advertisers/ platforms are the identification of advertising material and parameters used for its targeting and the prohibition of advertising based on profiling that uses using special data categories such as religious belief, health data sexual orientation etc. (art.26), or if the platform has reason to believe the recipient is a minor (art. 28). The Regulation applies from February 2024. 

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32022R2065

 

The Digital Markets Act

 

Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act). European Commission pages are here; from those: 'Some large online platforms act as "gatekeepers" in digital markets. The Digital Markets Act aims to ensure that these platforms behave in a fair way online. Together with the Digital Services Act, the Digital Markets Act is one of the centrepieces of the European digital strategy.' Wikipedia entry is here.  Article 2a prohibits the processing, for the purpose of providing online advertising services, personal data of end users using services of third parties that make use of core platform services of the gatekeeper, unless the end user has been presented with the specific choice and has given consent within the meaning of Article 4, point (11), and Article 7 of Regulation (EU) 2016/679. The Regulation entered into force on 1st November 2022 and applied on 2nd May, 2023. Gatekeepers will be identified and they will have to comply by 6th March 2024 at the latest.

https://eur-lex.europa.eu/eli/reg/2022/1925

 

 

NATIONAL LEGISLATION

 

Consumer protection 

 

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

 

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

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

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

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

Guidance on the 2014 CPRs:

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

 

Business protection

 

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

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

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

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

 

Pricing

 

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

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

 

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

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

 

 

Channel legislation

 

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

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

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

 

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

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

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

 

Ofcom

 

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

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

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

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

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

 

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

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

 

 

VOD

 

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

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

 

 

Data protection and privacy

 

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

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

 

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

 

Regulatory authority the ICO

Information Commissioner’s Office

http://ico.org.uk/

 

Introduction to the Data Protection Act 2018:

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

Guide to the GDPR:

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

Guide to Privacy and Electronic Communications Regulations

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

Direct Marketing Guidance

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

Video guides

On July 5, 2023, the ICO issued video guides for small organisations; includes soft opt-in for email and text marketing, data protection, and data protection and direct marketing

 

PECR

 

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

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

Amendments:

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

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

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

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

 

e-Commerce

 

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

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

 

Distance selling

 

The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134). Entry into force: 13/06/2014. These Regulations supersede and replace the Consumer Prote