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Global Advertising Lawyers Alliance. GALA is an alliance of lawyers located throughout the world with expertise and experience in advertising, marketing and promotion law. GALA provides a worldwide resource to individuals and corporations interested in answers to questions and solutions to problems involving the complex legal issues affecting advertisers and marketers. GALA, a network of independent law firms, is neither licensed nor authorized to render legal services. While GALA can coordinate the consultation an Associate Member or third party may receive from GALA members, each individual GALA member, and not GALA, is solely responsible for the advice they provide.

A. Television and Radio

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1.1 How is advertising regulated in the United Kingdom?

There are four principal areas of law and regulation that regulate advertising in the UK. First, there are consumer protection laws, particularly the Consumer Protection Regulations 2008 (CPR’s), and other statutes, such as the Data Protection Act 1998. Second, there are intellectual property laws, particularly copyright and trade mark law, which impact upon creative treatments and the use of third party trade marks in comparative advertising. Thirdly, there are sector specific laws that impinge upon advertising for particular goods or services, such as financial services, gambling, tobacco and alcohol. Finally, there is a particularly significant role in the UK system for self-regulation. The main regulator is the Advertising Standards Authority (ASA); but there also other bodies, such as the Portman Group, which governs naming, packaging and promotion of products, event sponsorship and point of sale materials in the alcohol sector; and Phonepay Plus, which governs premium rate telephony services.

1.2 What types of communications are considered to be “advertising”?  How is this determined?

There are few definitions of “advertising”, but the EU Comparative Advertising Directive defines an advertisement as “the making of a representation in any form in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations”. When ASA extended its remit to cover claims on brand’s own websites, they distinguished between “editorial” and “advertising” as “editorial” is specifically excluded from ASA’s remit.

1.3 What is the basic regulatory framework for advertising regulation?

There two main advertising codes. The Broadcast Committee of Advertising Practice (BCAP), writes the BCAP Code for television and radio advertising. Committee of Advertising Practice (CAP) writes the CAP Code for other forms of advertising, including press; posters or Out-of-Home; online advertising and social media; brand owners’ websites; and sales promotions, including competitions and free prize draws. The Committees are comprised of organizations representing advertisers, agencies, media owners and the clearance bodies. The Codes are enforced by the ASA.

1.4 Are there certain types of advertising practices that are specifically regulated (e.g., text message advertising)?

PhonepayPlus (PPP) is a co-regulatory authority, authorized by Ofcom (the statutory regulator) to regulate premium rate services (PRS). PRS are goods and services that consumers can buy by charging the cost to their phone bill or pre-pay contract (e.g., via telephone or text messages).

Nearly all PRS providers must first register with PPP before carrying out any PRS. Exceptions to registration are customer service lines, direct enquiries and classified advertisement services which capture data. 

PPP has published a code for PRS which all registered providers of PRS must follow. The basis of the PPP Code is that pricing information is clear and accurate, advertising and service content is honest, and promotions are appropriate and targeted.

The PPP Code sets out the outcomes expected by PPP and the rules with which providers must comply. To assist PRS providers, PPP also publish non-binding Guidance to accompany the PPP Code, divided into service types. 

The BCAP Code also includes specific rules governing advertisements that include a PRS. These principally mirror the rules set out in the PPP Code, but they specifically state that if a PRS service costs 50 pence or more per minute, it is important that clear pricing information is given to consumers.

The BCAP Code also requires the identity of the service provider to be included in the advertisement.  

For PRS advertisements via radio and television, the broadcaster must retain and make available a non-premium rate telephone number for customer care purposes (except where PPP has exempted the service provider from doing this).

Advertisements for PRS are required to alert their audience when a call of at least 5 minutes is normally involved.
Advertisements for live PRS must not appeal to people under 18, unless PPP has given express consent to do so.

1.5 Are there certain industries whose advertising practices are specifically regulated (e.g., drug advertising)? 

Several industries are subject to specific laws governing their advertising, and/or have specific provisions in the CAP and BCAP Codes. These are the main ones, but the list is not exhaustive.

Alcohol:  Both the CAP and BCAP Codes contain detailed provisions, including requirements for the age of people appearing in alcohol adverts; prohibiting a link between alcohol and sexual or social success; or the success of a social event; or linking alcohol with particular activities such as the work place, operating machinery, driving or water sports.

Tobacco: All forms of tobacco advertising are prohibited.

Medicines: Prescription Only Medicines (POM) are heavily regulated, and can only be advertised directly to medical professionals. Over The Counter (OTC) medicines can be advertised to consumers, subject to certain controls. Advertising for cosmetics, food supplements and medical devices that allege to prevent, treat or diagnose a disease, illness or adverse condition risk being caught by the definition of a medicine because of their claims, rather than their ingredients.
Food and Drink: Concern about obesity, particularly in children, has driven scheduling restrictions in the BCAP Code for foods which are high in Fat, Sugar and Salt (HFSS). The European Regulation concerning Nutrition and Health Claims Made on Foods prohibits nutrition and health claims in foods unless these appear on a list approved by the European Food Safety Authority.

Automotive: As well as the specific provisions of the CAP and BCAP Codes, car manufacturers need to be mindful of the provisions concerning environmental claims, particularly for ‘tail pipe’ emissions, as well as the provisions of the Passenger Car (Fuel Consumption and CO2 Emissions Information) Regulations 2001.
Gambling: As well as complying with specific provisions of the CAP and BCAP Codes, gambling operators must be mindful of their license obligations, failing which their operating licenses could be revoked by the Gambling Commission and they would have to cease operating, or face criminal sanctions.

1.6 Are any government pre-approvals required?

There are no government pre-approvals required for individual advertisements, but there are legal requirements laid down in various statutes and regulations that specific types of advertising must contain certain pre-approved warnings or disclaimers in order to be lawful, particularly in the financial services sector. Advertisements for consumer credit and for mortgages, for example, must contain specified warnings and information. These deals with issues such as typical interest rates; warnings that investments can go down as well as up; and that consumers may be at risk of losing their homes if mortgage repayments are not maintained. In addition, there are provisions in the CAP and BCAP Codes that must be observed.

1.7 Does the media pre-clear advertising?

All television commercials are pre-cleared by a central body called ‘Clearcast’, which is owned and funded by the television stations. The broadcasters have an obligation under their government granted broadcasting licenses to ensure that all advertising is compliant with the BCAP Code and the applicable legislation. The television stations will therefore not accept a commercial for broadcast without Clearcast’s approval. This approval will normally be obtained at script stage, and then again once the Final-Cut is ready for broadcast. Clearcast approval does not affect the ability of the ASA to uphold any subsequent complaint, but the ASA will consult Clearcast to obtain their explanation for approving the commercial.

The Radio Advertising Clearance Centre operates a similar system for radio commercials.

1.8 How does the government enforce advertising laws?  What are the potential remedies?

Generally speaking, government agencies will only enforce advertising laws if the self-regulatory system has failed to work, if there is a lacuna in the self-regulatory system, or if there is a serious issue of consumer detriment.

The Office of Communications (Ofcom) will intervene if a broadcaster is in breach of the sponsorship or programming codes, for example by allowing an HFSS food advertiser to sponsor a program of appeal to the under 16s. Ofcom has imposed large fines for breaches of the codes around premium rate phone line competitions. 
The Medicines Healthcare Regulatory Agency (MHRA) can intervene if medicinal claims are made for products which are not licensed medicines. 

The Competition and Markets Authority (CMA) (which replaced the Office of Fair Trading (OFT) in April 2014) may intervene when advertisers make unsubstantiated claims despite adverse adjudications by the ASA, or make misleading price or savings claims to consumers. The CMA will usually seek to negotiate undertakings from advertisers in the first instance, so that court action is not required. If, however, no such undertakings can be obtained, the CMA may bring criminal proceedings and if successful, these will result in fines and occasionally even imprisonment for the individuals responsible. In 2013, the OFT prosecuted the major supermarket, Tesco, in relation to misleading savings claims, resulting in a fine of £300,000.

Local government Trading Standards Departments also play an important role in the enforcement of advertising laws, particularly in relation to price advertising to consumers. They will bring criminal proceedings in the Magistrates Court, who have the power to impose prison sentences of up to 2 years, and/or fines of up to £5,000 per offence.

With the demise of the OFT, which was previously the ‘back stop’ regulator for the ASA, Trading Standards will have a more important role in fulfilling that function.

1.9 When does a competitor have a right of action?  What are the potential remedies?

Generally speaking, competitors in the UK have tended to rely on complaints to the ASA as their main means of redress. When the Unfair Commercial Practices Directive was implemented in the UK as the Consumer Protection Regulations 2008 (CPRs), this was done without a specific right of action for competitors. 

If the competitor is named in an advertisement, it may be able to bring proceedings for trade mark infringement. In addition, or sometimes as an alternative, a competitor may be able to bring an action under the tort of ‘malicious falsehood’. The claimant will need to be able to show that it was identified by the relevant statement or claim; that the claim was not merely misleading, but actually false; and that the respondent knew the claim was false or was reckless about its falsity. The claimant will also need to show that this has caused him damage. 

If a claim succeeds in trade mark infringement or malicious falsehood, the claimant may be entitled to damages (or an account of profits) and an order for the respondent to cease and desist from the relevant advertising. Orders for corrective advertising are also now becoming a more common feature of the English legal system, although still relatively unusual. 

Competitors may also bring a ‘private prosecution’ if it believes that its competitor is in breach of the criminal law. If successful, the defendant will face a fine and a costs award. Again, these are relatively unusual, but may become more common as companies try to achieve a level playing field at a time when the statutory regulatory and the ASA are relatively short of funds, and have to prioritize what they see as the most important cases.

1.10 When do consumers have a right of action?  What are the potential remedies?

In addition to the right to complain to the various regulators and ombudsmen, consumers may have direct rights of action against traders.
As from 1st October 2014, consumers now have a direct right of redress against traders who have engaged in misleading or aggressive practices, contrary to the CPRs. Remedies include the right to unwind the contract; the right to a discount; and the right to damages. Consumers will need to show that the trader engaged in a prohibited practice which caused the consumer to take a decision he would not have otherwise taken, e.g., to buy a product or pay a certain amount.

Consumers can also enforce rights under Data Protection Act 1998, including a right to compensation for damage caused by any breaches. However, only the courts can award compensations, so claims are rare. Consumers can also make “subject access requests”, requiring data controllers to provide information about the data held about them. Consumers and can also complain to the regulator, the Information Commissioner, who can then bring enforcement action against a Data Controller.

In certain regulated industries, such as the legal and financial industries, consumers have a right to complain to various ombudsmen, e.g., the Financial Ombudsman Service. This includes cases where insufficient or misleading information is given in advertising materials. Many of these ombudsmen have powers to award compensation to consumers.


B. Cinema, Print, Outdoor

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2.1 Does the United Kingdom have a primary advertising self-regulation system?

The ASA is the UK’s independent self-regulatory body. It was set up by the advertising industry in 1962 to police the rules set out in the Code written by the Committee of Advertising Practice. Until relatively recently, broadcast advertising was regulated by a separate regime. Compliance with the CAP and BCAP Codes is binding on all advertisers, agencies and media owners pursuant to the membership obligations of their respective trade associations, but also implies to any organization that is not a member of one of those bodies.

The ASA is responsible for handling complaints about broadcast and non-broadcast advertising. These complaints may come from any source, including consumers, competitors, charities, trading standards officers or non-governmental organizations. The ASA also has the right to initiate its own investigations based on its own activity and research. The ASA has no legal statutory powers, but does have a legal backstop provided by the National Trading Standards Board and Ofcom (for broadcast advertising only) in the event that an advertiser repeatedly disregards its rulings.

Ofcom is the regulator for all UK broadcast media. Although it has delegated a large proportion of its responsibilities for broadcast advertising regulation to the ASA, Ofcom retains statutory authority and operates in a co-regulatory relationship with the ASA.

2.2 Is there a self-regulatory advertising code?  What are the key principles?

The CAP and BCAP Codes stress that all marketing communications be legal, decent, honest and truthful. They should also be prepared with a sense of responsibility to consumers and society as a whole, respecting the principles of fair competition.

The Codes should be applied in spirit, as well as by the letter. Advertisers have a responsibility not bring advertising into disrepute. For example, the online gambling company, Paddy Power, was censured for an advertisement that coincided with both the Oscars’ award ceremony and the start of the trial of Oscar Pistorious for the murder of his girlfriend, which featured his face superimposed on an Oscar statuette, and the headline “It’s Oscar time. Money back if he walks.”

The Codes require advertisers to deal fairly with consumers and not mislead them by exaggerating the performance, value and capability of a product, or by omitting material information.

The Codes urge advertisers to have the written permission of members of the public before they portray them in non-broadcast advertising, and require them to do so for broadcast advertising.  The Royal Family should not be shown or mentioned in marketing communications without express permission. 

Advertisements must not cause harm or widespread offence against generally accepted social, moral or culture standards. They should not contain material that is likely to encourage behavior that prejudices health and safety or encourages violence, crime, anti-social behavior or disrespect to the environment. Advertisements must not cause the audience unjustifiable distress, especially with regard to those under the age of 18, containing nothing that could cause them social, mental, physical or moral harm.

Both the CAP and BCAP Codes reflect the principle that advertising and editorial must generally be kept separate and that advertising should be readily recognizable as such, whether by visual or aural representations, or through the use of the appropriate disclosures.

2.3 Does the system have an enforcement or dispute resolution mechanism?  How does it work?

The ASA considers complaints from all sources. Just a single complaint can trigger an investigation. The ASA can start an investigation itself thanks to its monitoring and review system.

Some investigations are informally resolved, if the advertiser immediately accepts the concern raised by the ASA and agrees to amend its advertising. Otherwise, the ASA Executive will conduct an investigation, sometimes with expert assistance, and produce a Draft Recommendation for complaints that are formally investigated, with a final adjudication being made by the ASA Council. 

Advertisers can request an Independent Review of the adjudication if the adjudication itself was significantly flawed or if there was a substantial flaw in the process, but the decision whether to accept the recommendation of the Independent Reviewer ultimately remains with the Council. 

The ASA’s main sanction is negative publicity, which it achieves by publishing its adjudications on its website every Wednesday. It cannot impose fines, but its other sanctions include the imposition of pre-vetting requirements; referral to the Trading Standards authorities or Ofcom; issuing “ad alerts” to media owners to them not publish certain advertisements breach of the Code. In the context of online advertising, the ASA can remove a marketer’s paid-for search advertisements when those advertisements directly link to a page on the marketer’s own website that hosts marketing communications that are in breach of the CAP Code. The ASA can also conduct its own paid search campaign drawing attention to non-compliant advertisers. 

Clearcast and the RACC will withdraw clearance for a broadcast advertisement if a complaint is upheld by the ASA. The ASA can also refer a broadcaster to Ofcom if there is a serious failure to comply with the BCAP Code or if they persistently continue to do so. Ofcom can sanction, reprimand and ultimately revoke a broadcaster’s license.

2.4 Is the self-regulation system effective?  Is it widely used and followed?

Broadcasters’ licenses hold the condition that they must comply with the BCAP Code. Therefore, the ASA and Ofcom between them have significant powers over broadcasting advertisements.

While the ASA does have legal backstop and can refer misleading non-broadcast advertisers to Trading Standards, in practice, based on the sanctions available, this is very rarely necessary.

In the overwhelming majority of cases, advertisers willingly comply with the self-regulatory system and remove offending advertisements. 
Increasingly, the ASA will seek to engage positively with advertisers in order to resolve complaints informally where possible, to avoid a formal investigation.

2.5 Are the self-regulatory system’s decisions reported?

The ASA publishes its adjudications on a weekly basis on its website publicly. They remain online for five years, and may be searched easily by the public. The stories are often picked up and reported in the media, providing further adverse publicity for offending marketing communicators.
The ASA also maintains a list of advertisers who continue to make non-compliant claims on line, usually on their own websites, despite repeated requests for changes to their communications.

2.6 Are there any key areas of focus, or key principles, that companies should be aware of?

The key principle of advertising regulation across all media is that advertising must not be misleading. The burden of proof is on advertisers to be able to substantiate all claims at the moment of their broadcast or publication. The ability of consumers to identify advertising messages is also critical.

Since March 2011, the CAP Code has also applied to marketing communications by companies and organizations on their own websites and in other non-paid-for online space, such as Facebook and Twitter. To come within this remit, such marketing communications must be directly connected with the supply or transfer of goods, services, opportunities and gifts, or consist of direct solicitations of donations by charities etc. as part of their own fund-raising activities.

Those parts of a company’s own website or social media that are not marketing communications remain outside the ASA’s remit, such as editorial content, news or public relations material, corporate reports, investor reports and heritage advertising.

2.7 Are there any other self-regulatory systems that govern advertising practices in the United Kingdom?

Certain industries/sectors have regulatory bodies and codes applying to advertising practices, including codes for the mobile phone industry (Mobile Marketing Association), premium rate telephone lines (PhonepayPlus), alcohol (Portman Group) and direct marketing (Direct Marketing Association). Other organizations are also involved in the application of the CAP Code, such as the Cinema Advertising Association.


C. Online Commercial Communications (paid)

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What are the basic laws governing advertising claims in the United Kingdom (e.g., consumer protection laws; IP laws; unfair competition laws)?

The primary piece of consumer protection legislation in the UK is the Consumer Protection from Unfair Trading Regulations 2008 (CPUT). From 1 October 2014, consumers have new private rights of direct redress against traders who commit aggressive or misleading practices pursuant to the Consumer Protection (Amendments) Regulations 2014 (2014 Regulations). Now, if a trader carries out a misleading (or aggressive) practice, a consumer will be able to unwind the contract (as if it had never existed) and get his or her money back, or receive a discount on sums paid.

Consumers will have recourse under the 2014 Regulations against the trader with whom they contract, but not others such as manufacturers or advertisers. Nonetheless, if a producer engages in a misleading (or aggressive) commercial practice of which the trader could reasonably have been expected to be aware, a consumer may be able to take action against the trader.  For example, if a clothing manufacturer undertakes a high profile advertising campaign claiming its products are “pure cashmere” and the retailer knows this to be untrue but continues to sell the clothing, the retailer may be liable to the consumer.  The retailer might equally be subject to a consumer claim if it conducts its own campaign based on manufacturer claims that it knows or suspects may be false.

To bring an action against a trader, a consumer has to demonstrate that the misleading act or aggressive practice was a significant factor in his or her decision, as an “average” consumer, to enter into the contract or to pay the trader.

As well as consumer protection laws, data protection laws are very important in relation to advertisers dealing with consumers. Trade mark law and the law of “passing off” (similar to continental unfair competition law) is very important comparative advertising; and copyright law will often be important in the context of the creation of advertising, particularly for parodies.  

3.2 Is substantiation required for advertising claims?

Advertisers must ensure that they hold documentary evidence to prove all claims that are capable of objective substantiation, whether direct or implied, before submitting marketing communications for publication.

In the absence of adequate substantiation, the ASA may regard a claim as being misleading and therefore in breach of the CAP/BCAP Code.
If a comparison or comparative claim is made (e.g., “best selling”), the advertisers must hold evidence that relates to both its’ own product and that of its’ competitor.
The ASA is not very clear about the general “standard of proof” required for substantiation. There are detailed rules for claims for health, beauty and slimming claims. For example, the level of substantiation required for a ‘break through’ claim for a cosmetics product will be very high, requiring a body of evidence of specific types.

3.3 Are there certain types of advertising messages that do not require substantiation (i.e., puffery)?

Both the Consumer Protection Regulations 2008 and the CAP and BCAP Codes state that obvious exaggerations (i.e., puffery) are allowed. These are claims that the average consumer who sees the claim is unlikely to take literally. These claims do not require substantiation, but must not materially mislead and must not make any implied claims that are capable of objective substantiation.

For example, in 2012, the ASA decided that consumers would consider an offer of “unlimited free texts forever” to be mere puffery, rather than a claim that free texts would be available literally forever (Everything Everywhere Ltd t/a T-Mobile, 24 October 2012). 

But in another adjudication that year, the ASA held that consumers would consider the claim “best tasting chips, without the oil” to be an objective comparative taste claim against the other traditional methods of home-cooking chips, and not mere “puffery” argued by the advertiser (Philips Electronics UK Ltd, 1 August 2012).

3.4 What are the rules governing the use of disclosures in advertising?

Advertisements must state significant limitations and qualifications. The way this should be done will vary according to the context.  
Any qualification, such as a disclaimer or ‘small print’, can clarify or expand upon the main claim, but must not contradict it. 

Any disclaimer or other qualification or clarification must be expressed clearly and legibly. The exact requirements will depend on a number of factors, such as the medium in which the main claim appears. There are also timing requirements for on-screen disclaimers during television commercials (i.e., minimum timeframes during which the text must be shown on screen).

Footnotes should be clearly visible to a normal-sighted person reading the advertisement once, from a reasonable distance and at reasonable speed.

3.5 What are the rules governing the use of endorsements and testimonials in advertising?

Testimonials and endorsements must relate to the advertised product or service.

Advertisers must hold documentary evidence that a testimonial or endorsement is genuine (unless obviously fictitious), and hold contact details for the person who gave it.  Factual claims within testimonials must not mislead.  Advertisements generally should not feature a testimonial without permission, but exceptions may be made for accurate statements taken from published sources.

Marketing communications must not falsely claim that the advertiser, or other entity referred to in the marketing communication, is a signatory to a code of conduct, and must not claim (or imply) that they are endorsed by the ASA or CAP.

Advertisements must not use the Royal Arms, Emblems or Royal Warrants without prior permission from the Lord Chamberlain’s office. 
Testimonials and endorsements by celebrities using social media must make clear whether they are paid for or part of an overall commercial arrangement with an advertiser.

3.6 What are the rules governing the use of product demonstrations in advertising?

The usual principles about misleading acts and omissions will apply to product demonstrations. Products must normally work as shown and as described.
Advertisements must not mislead consumers by exaggerating the capability or performance of a product, for example by showing it doing things it cannot actually do.
If additional purchases or equipment will be required in order to make the product work, or to appear as they are shown in the demonstration, this must be made clear (for example, ‘batteries not included’).

During a demonstration, it is important to ensure that the advertisement does not present rights given to consumers in law as a distinctive feature of the marketer’s offer.  Also, advertisers must not suggest that their claims are universally accepted if a significant division of informed (or scientific opinion) exists.

3.7 Is comparative advertising permitted?  If so, are there any special rules that apply?

As in the rest of the EU, the rules on comparative advertising in the UK are derived from the Comparative Advertising Directive (EU Directive 2006/114/EC). Comparative advertising is therefore permissible in the UK, provided it complies with certain conditions.
In particular, comparisons must not mislead, and must compare products meeting the same need or which are intended for the same purpose, but they must not give the advertiser an artificial advantage. 

The advertisement must objectively compare one or more material, relevant, verifiable and representative features of those goods and services, which may include the price.
Advertisements must not discredit or denigrate or take unfair advantage of the trade marks, goods, services, activities or circumstances etc. of the competitor; and must not take unfair advantage of the designation of origin of competing product(s).  

Unqualified superlative claims may be treated as comparative claims against all competing products.

3.8 Are there any special copyright or trade mark rules that may impact comparative advertising (e.g., whether the use of a competitor’s trade mark or products may be used)?

If an advertiser uses a third party trade mark in a comparative advertisement, other than as is permissible in order to fairly and legitimately compare two or more goods or services, the third party may have a claim for trade mark infringement against the advertiser. Furthermore, depending on the circumstances, the third party may be able to bring a claim for defamation, trade libel, malicious falsehood, copyright infringement and/or passing off. If any of these claims are made out successfully, this could result in an injunction and/or claim for damages. 

The requirements for the legitimate use of a third party trade mark in comparative advertising are derived from the Comparative Advertising Directive and also reflected in the CAP and BCAP Codes. The key consideration is that the advertisement objectively compares one or more material, relevant, verifiable and representative features of the products. In practice, most disputes center on whether the advertiser can substantiate their claimed advantage.


D. Data Processing and Cookies

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4.1 What are the United Kingdom’s rules regarding price advertising?

The CPRs apply to all displays of pricing in communications giving pricing information. They prohibit traders from making misleading acts or omissions that cause or are likely to cause the average consumer to take a “transactional decision” they would not otherwise have taken.  For example, giving misleading information (or misleadingly omitting to give information) about the price or calculation of the price – even if they cannot be calculated in advance).

There are also “blacklisted practices” (i.e., automatically unfair even without out affecting a transactional decision):

  • “Bait” or “bait and switch” advertising;
  • Falsely stating that a product will only be available for a very limited time;
  • Giving materially inaccurate information about market conditions.

Other legislation in specific industry areas include:  distance selling, consumer credit, estate agents, and package holidays and flights – and specialist advice should be taken on an individual basis.  There is also the Price Marking Order 2004.

4.2 What are the United Kingdom’s rules regarding advertising “free” products?

It is a blacklisted practice under the CPRs to describe a product as “free” if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.  

The CAP and BCAP Codes broadly mirror this rule and also provide that where receipt of the free product is conditional on purchasing another product, the price of that product may not be increased above its normal cost (and its quality must not be lower than normal). 

If traders offer packages of products, they must not describe any elements of that package as free if the consumer has no choice about the elements included in the package.  In limited circumstances, if a feature has recently been added to a package and is not intrinsic to the package, it may be described as free.  In all cases, specific legal advice is recommended.

4.3 What are the United Kingdom’s rules regarding sales and special offers?

Extensive rules are contained in the CPRs and the Pricing Practices Guide issued by the Department for Business Innovation & Skill (BIS).
When advertising sales prices, there are 3 general principles: (a) the higher, base price basis for comparison should be the most recent price available for 28 consecutive days or more; (b) the period of time for which the new (lower) price will be available should not be so long that the comparison becomes misleading; generally the new (lower) price should not apply for longer than the old (higher) price was available; and (c) comparisons should not be made with prices last offered more than six months ago.
In addition, the BIS guidance states:

  • Where items have been specifically bought in for a sale, this should be made clear to consumers.
  • Statements such as half price sale or X% discount should be used with caution and only where the quotes discount applies to at least 10% of the range of products on offer at the start of the sale.

4.4 What are the United Kingdom’s rules regarding rebates?

In the UK, this is known as “cashback”.  There are no specific rules governing the promotion of products by offering cashback, but it will be considered to be a sales promotion and therefore all the usual rules regarding significant conditions being made known etc. apply (see section 8 CAP Code and related “Help Notes”).  For example, it should be clear what is needed to qualify to receive the cashback and also what form the cashback take (e.g., cash, or merely a voucher that can only be redeemed in particular stores).  All the other usual rules contained in the CPRs and the CAP and BCAP Codes should be followed.

4.5 Are there other key restrictions which advertisers should be aware of regarding retail advertising practices?

The information set out above is a very brief summary of the BIS Pricing Practices Guide, which should be referred to in full, as well as the relevant sections and the Help Notes of the CAP and BCAP Codes.


E. Online Behavioural Advertising (OBA)

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5.1 Are there any products or services that may not be advertised, or may not be advertised in certain media? (e.g., guns, medicines etc.)?

Broadcast advertisements for the following goods/services are completely prohibited:

  • Breath-testing devices;
  • Guns/offensive weapons or gun clubs;
  • Prostitution and sexual massage services;
  • Obscene material (see section 5.3 below);
  • Products for the treatment of alcohol or illegal-substance dependence;
  • Some types of religious and faith based advertising;
  • Some types of home working schemes;
  • Escort agencies (TV only);
  • Political advertising;
  • Prescription Only Medicines;
  • Teleshopping for certain medicinal or veterinary products or medical treatment for humans or animals;

the acquisition or disposal of units in collective investment schemes not authorized or recognized by the Financial Conduct Authority, without the prior approval of BCAP; 
R18-rated materials (as classified by The British Board of Film Classification which are works featuring consenting sex or strong fetish material involving adults) (radio only).

All forms of advertising are prohibited in both broadcast and non-broadcast media for the following: betting systems and products that facilitate winning a game of chance; pyramid selling schemes; infant formula; prescription only medicines; and for tobacco products (and some associated non-tobacco products e.g., rolling papers and filters).

5.2 Are there any types of advertising practices that are specifically prohibited (e.g., telemarketing to mobile phones)?

Subliminal techniques are prohibited in audiovisual commercial communications.

  • Claiming that a product can facilitate winning in a game of chance.
  • Claiming that the advertiser’s job or livelihood is in jeopardy if the consumer does not buy the product.
  • Presentations in advertisements for medical products by doctors, dentists, veterinary surgeons, pharmaceutical chemists, nurses, midwives and the like, if these imply professional advice or recommendation. 

There are many restrictions on advertising to children, for example, encouraging children to use pester power.

Other sectors also contain detailed rules that govern particular practices. For example, alcohol advertising must not link alcohol to sexual success or show actors who appear to be under 25 years old. Gambling advertising must not suggest that gambling can be a solution for financial problems. Automotive advertising must not show cars being driven recklessly or at excessive speed.

5.3 Are there any laws or regulations governing indecency or obscenity that apply?

The Obscene Publications Act 1959 makes it a criminal offence to publish, or possess with the view to publishing for gain, an article which, taken as a whole, has the effect of tending to deprave or corrupt persons who are likely to read, see or hear the matter contained within. Case law has shown that the article must have a morally corrupting effect rather than merely shock or disgust readers. There are two main defenses to the offence: innocent publication/possession; and public interest.
The Indecent Displays (Controls) Act 1981 makes it an offence to display or cause or permit to be displayed any indecent matter in, or so as to be visible from, any public place. The offence does not include matter included in a television program service, in films screened in licensed cinemas or in art galleries or museums visible only from within the gallery or museum.


F. Email (B2C and B2B), SMS, MMS

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6.1 Are there special rules requiring that advertising identify who the advertiser/sponsor of the advertising is?

Broadcasters must adhere to the Ofcom Broadcasting Code (Ofcom Code) when entering sponsorship arrangements. Sponsorship of TV programs must be clearly identified by means of a sponsorship credit that makes clear the identity of the sponsor. 

Broadcasters must also ensure that editorial content is distinct from advertising and surreptitious advertising is prohibited. 

Advertisers must comply with the CAP Code, which states that marketing communications must be obviously identifiable as such. The BCAP Code goes further and states that advertisements must be obviously distinguishable from editorial content and that the audience should be able to quickly recognize the message as an advertisement. 

The CPRs also require advertisers to disclose if an advertiser is paying for editorial content or advertorials, and that advertisers must not mislead the public by any act of omission, so identification of the advertiser may be necessary, depending on the context.


G. Own Websites and own SNS

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7.1 Are there any special rules governing the integration of advertising content and entertainment (or editorial) content?

The Ofcom Code covers ‘linear’ broadcast television, while the Authority for Television on Demand (ATVOD) and distinct but similar ATVOD Rules cover on-demand program services (ODPS). 
The Ofcom Code states that in general, products, services and trade marks must not be promoted in programming and that no undue prominence may be given in programming to such things.
The Ofcom Code also deals with product placement and sponsorship, ensuring that editorial content remains distinct from advertising, preserving the broadcasters’ editorial independence and control over programming. 

Product placement (including a reference to a product, service or trade mark in a program for a commercial purpose and in return for consideration) is prohibited in the UK, except in specific genres, such as films, sports programs and light entertainment programs. Product placement is prohibited in news, religious, current affairs and children’s programs.

Product placement is prohibited for cigarettes and other tobacco products; prescription only medicines; alcoholic drinks; HFSS food or drinks; gambling; infant formula; all medicinal products; electronic or smokeless cigarettes; and any product or service prohibited from television advertising. 

Programs that contain product placement and which were produced or commissioned by the provider or the program services, must clearly signal such product placement by means of a universal neutral logo (the product placement “P” in the UK). 

To the extent that a “blogger” or “vlogger” is paid to produce content for an advertiser, and that advertiser has any form of editorial control over such content, then the Codes will apply to such content.  The ATVOD Rules may also apply if such video content is placed on a channel falling with ATVOD’s remit.

7.2 Are there any special disclosure or other obligations when integrating advertising content with other content?

Unsolicited e-mail marketing communications must be obviously identifiable as such without the need to open them, e.g., from the subject line. 

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. This is a requirement of the CAP Code, but also one of the banned practices under the CPRs that is always unfair.

Both advertisers and publishers must make clear that advertorials are marketing communications; for example, by heading them "advertisement feature". However, ‘advertorial’ is quite narrowly defined, with two additional elements: an advertorial is an advertisement feature, announcement or promotion, the content of which is controlled by the marketer, not the publisher; and that is disseminated in exchange for a payment or other reciprocal arrangement.


H. Contextual / Native

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8.1 Are there any special rules governing the use of social media for advertising purposes?

There are no special legal rules governing advertising via social media.  However, it is important to note that the ASA has jurisdiction over marketing communications made in online non-paid for space, including both advertisers’ own websites and social media platforms, such as Twitter and Facebook etc.  It will also cover situations where advertisers use consumers or celebrities to promote their products via those consumers’/celebrities’ personal social media accounts.

The most pertinent of the “usual” rules that have particular importance in the social media arena is the requirement that adverts must be clearly identifiable as such.  

Advertisers also need to ensure that they do not inadvertently breach the CPR black listed practice of “falsely claiming or creating the impression that they are not acting for purposes related to their business” or “falsely representing oneself as a consumer”. This applies both to the advertiser’s own personnel (e.g., their social media manager or copywriter) as well as where an advertiser has paid a celebrity, blogger or other person to promote their product via their own personal social media accounts.   In these situations there must be a clear disclosure of the commercial relationship between the brand being advertised and the person making the Tweet / Facebook post etc.   Currently, the safest way to achieve such disclosure is through a hashtag, such as #ad #paid or #spon, although in certain circumstances, where the commercial intent of a tweet has been obvious from the overall presentation, including images similar to those used in by the brand in its’ advertising, the ASA has not upheld a complaint about the absence of a hashtag. In space-limited platforms such as Twitter, stating the name of the advertised product company via their @handle has also been accepted by the ASA as a fair disclosure.

8.2 Is an advertiser responsible for advertising claims made in user generated content (e.g., statements that a consumer makes on an advertiser’s Facebook page)?

If an advertiser “adopts and incorporates” UGC on its website or into its social media space, then the advertiser will become responsible for that UGC and all the usual advertising rules will apply. The key issues for advertisers to think about if they want to make use of UGC are therefore as follows:

Is the advertiser soliciting UGC? If so, is the advertiser encouraging promotional-type UGC to be made, such as unqualified praise of a product?  

Is the advertiser moderating UGC? If posts are pre-moderated before being posted, then the UGC will certainly be the advertiser’s responsibility. Post-moderation is more of a grey area.
Is the advertiser editing or making UGC more prominent than it would otherwise be? If so, the UGC will more likely be the advertiser’s responsibility.

8.3 Are there any key court or self-regulatory decisions that advertisers should be aware of regarding the use of social media and user generated content?

Although there have not been any prosecutions concerning social media advertising, there has been enforcement activity of a legal nature. In December 2010, the OFT took action against a blogging company, Handpicked Media, under the CPRs.   The network did not make it clear in blog posts in social network sites and website blogs that companies were paying bloggers to write promotional content about products.  The OFT considered this to be a failure to disclose material information or to make it clear that editorial content had been paid for. The OFT took the view that payments for editorial content include payments in kind, such as providing bloggers with free products.  

In 2012, the OFT took action against Groupon, who were found to have run promotions on an unfair basis and to have engaged in ‘astroturfing’, allowing the posting comments from an employee posing as a consumer.

In June 2012, the ASA upheld a complaint made against two tweets made by two professional football players that referred to a Nike campaign and linked to the campaign’s web page.  There was no disclosure that the tweets were advertisements or had been paid for by Nike.  But then in September 2013 (and as stated above), a similar Tweet by one of the footballers found not be in breach because the Tweet contained the @NikeFootball handle and included an image that contained the Nike swoosh and looked like one of its poster ads.

A teaser and reveal campaign on Twitter by Snickers with a number of celebrities was also cleared as being not misleading. This was because the teaser and reveal took place over a short space of time, no more than 1 hour, the teaser tweets had no promotional message, and the “reveal” Tweet contained the advertiser’s handle and #spon.


I. Telemarketing

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What are the rules governing the use of an individual’s name, picture, likeness, voice and identity in advertising?

In the UK, there is no absolute right to protect ‘personality rights’, i.e., the right to commercially exploit an individual’s name, picture, likeness or voice. Celebrities may be able to do so, if they can make out a case under the tort of ‘passing off’, but Both celebrities and private individuals may also be able to make a complaint to the ASA by reference to the CAP or BCAP Code.

In non-broadcast advertising, the CAP Code urges advertisers are urged not to refer living individuals, whether famous or not, subject to the exceptions below. In broadcast advertising, unauthorized depictions of or references to living individuals are prohibited, again subject to the narrow exceptions described below.

The law of passing off was updated in 2002 in case brought by the racing driver, Eddie Irvine, against the talk radio station, TalkSport. He was able to establish the three elements of the tort. First, he showed that he had ‘goodwill’, because he earned money from product endorsements and advertising. Second, he proved that people who saw a piece of marketing that purported to show him listening to TalkSport radio would be understood to be an endorsement by him of that station. Third, he has suffered damage by the lost license fees. This is now the leading case in this area, and will be cited by celebrities who have been referred to in advertising without consent.

Finally, there is also a role for data protection law, even for the private citizen. In one case, the courts required a local authority to pay compensation to a disabled girl. The Council has permission to use a photograph of the girl to promote their services for the disabled in the borough. However, when the photograph was later used to promote services for people with HIV Aids, the processing of her personal data was then unfair.

Are there situations when permission is not required?

Use of members of the public in a crowd scene or in a public place may be acceptable without permission. For celebrities and members of the Royal Family, references that accurately reflect the contents of a book, an article or a film might be acceptable without permission; or references containing nothing inconsistent with the celebrity’s views, provided there is no implied endorsement.


J. Direct Postal Mail

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Are there any specific rules governing the types of materials that must be cleared before they may be used in advertising (e.g., historic places)?

There are a number of potential areas which may be governed by further rules or which may require third party permission. The following is a non-exhaustive list:

  • Identifiable possessions or private dwellings;
  • Uniforms (e.g., police and army uniforms);
  • Coins, bank notes and postage stamps;
  • The Queen’s image generally, and images of other members of the Royal Family, and royal warrants, crests and emblems;
  • Identifiable third parties (including, but not only, celebrities);
  • Third party quotes;
  • Some vehicles or parts of vehicles can be protected as a trade mark, such a radiator grilles, as well as the more obvious badges etc. and therefore should be checked;
  • The scouting logos and symbols; and
  • The red cross/red crescent symbols.

However, it is generally low risk to use the Union Jack flag, provided such use does not mislead e.g., about the origin of the product, and it is not used in a way which is offensive.

Is it permissible to use other companies’ recognizable products in advertising (e.g., an actor wearing branded training shoes)?

It is often permissible to use other companies’ recognizable products in advertising, provided the third party product is mass produced (for example, not one-off couture clothing) and the third party trade mark is merely incidental or referential, rather than as indication of origin, implying an endorsement, or trying to leverage the reputation of the third party mark.  

The risk is likely to be significantly higher if the third party’s product is shown in a way which could create the misleading impression that the third party brand/trademark featured endorses, has authorized or is officially associated with the advertiser, advertised product, advertising campaign, etc.

The risk is also likely to be high if the item is shown in a negative or denigratory way, e.g., showing a third party branded vehicle which has broken down.

It is also important to avoid references to third parties that might give rise to an infringement of their copyright or design rights.


K. Event Sponsorship

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Are there any rules that are particular to the culture of the United Kingdom which affect advertising (e.g. Swedish gender equality law)?

The CAP code states that 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.

Members of the Royal Family should not normally be shown or mentioned in a marketing communication. However, Royal images may be used to advertise material such as a book, article or film about a member of the Royal Family.

As in many other countries, there is increasing concern about the portrayal of women in advertising. Sometimes this is focused upon the depiction of women as sexual objects, and sometimes about sexualisation of young women, often in advertising for lingerie etc. Other concerns are raised about the sexualisation of young women, or about the portrayal of women involving unachievable, idealist images through the use of post-production enhancements.

Are there any other cultural norms that should be considered (e.g. religious concerns)?

The CAP and BCAP Codes have very general principles stating that advertising must not cause widespread harm and offence. These principles have been applied widely by the ASA across a range of issues, reflecting the fact that UK is a modern, liberal, multi-cultural democracy. Non-governmental organizations representing the interests of minority groups will often take the opportunity created by an advertisement to promote their particular aspect of the equality agenda. Their complaints are not always upheld by the ASA, but there will still be a significant amount of negative press coverage.

In recent years, for example, there have been complaints about the portrayal of gypsies in advertising for a television show, “My Big Fat Gypsy Wedding”; about a kiss between a gay couple in a TV commercial for Heinz mayonnaise; and about transgender men in a commercial for Paddy Power.


L. Sales Promotion

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