Prohibited and controlled advertising in United Kingdom

Prohibited and controlled advertising

What products and services may not be advertised?

Advertising the following products or services to the public is prohibited in both broadcast and non-broadcast advertising: prescription medicines or medical treatments; infant formula; high fat, salt or sugar (HFSS) food products in children’s media; tobacco products and e-cigarettes that contain nicotine and are not licensed as medicines.

In relation to broadcasting and radio, the BCAP Code states that the following is also prohibited:

• political broadcasts, except for certain party political or referendum broadcasts;
• breath-testing devices;
• betting systems or products that are intended to facilitate winning games of chance;
• guns, gun clubs and offensive weapons;
• prostitution, sexual massage services and escort agencies (television only);
• obscene material;
• products (though not services) for the treatment of alcohol and illegal-substance dependence;
• pyramid promotional schemes; and
• the acquisition or disposal of units in collective investment schemes not authorised by the FCA.

Are certain advertising methods prohibited?

Under the BCAP Code, radio advertising should not include sounds that are likely to be a safety hazard and television advertising should not be excessively noisy. Television advertising should not include visual effects or techniques likely to adversely affect viewers with photosensitive epilepsy. The Ofcom Broadcasting Code also prohibits subliminal messaging and surreptitious advertising. Unsolicited marketing is generally prohibited in the UK.

What are the rules for advertising as regards minors and their protection?

Children are defined as being under 16. The principal rules set out in the advertising codes are as follows:

• advertising must not condone, encourage or unreasonably feature behaviour that could be dangerous for children to emulate. Children should not appear unsupervised or going off with strangers;
• advertising must not condone or encourage practices that are detrimental to children’s health;
• advertising must not include a direct exhortation to children to buy or to their parents or guardians; and
• advertising should not present children in a sexual way.

Advertisers should also ensure that they do not take advantage of children’s inexperience, credulity or vulnerability (eg, by exaggerating features of a product) nor imply that children are likely to be ridiculed, inferior to others, less popular, etc, if they do not use a product or service.

There are also scheduling restrictions for broadcast advertising and advertising for alcohol, gambling, HFSS food or medicines should also not be placed in children’s media or target children.

Rules have also been introduced to prohibit the portrayal of under-18s in a sexual way unless the principal function of the advertising is to promote the welfare of under-18s or to prevent harm to them.

Are there special rules for advertising credit or financial products?

The advertising of credit and financial products is regulated by the FCA and, under section 21 of the Financial Services and Markets Act, advertisers of such products must be authorised by the FCA. There are also provisions in the CAP Code regarding financial products.

Consumer credit advertising is subject to the FCA’s rules in section 3 of the consumer credit sourcebook and the key rule is for such advertising to be clear, fair and not misleading.

The advertising of high-cost short-term credit (HCSTC) has recently attracted concern, chiefly about targeting vulnerable people who do not always have a full understanding of the terms associated with the loan. Following some high-profile adverse rulings by the ASA, the ASA issued a public consultation in late 2015; but in June 2016, it announced that it had decided not to introduce scheduling restrictions on the advertising of HCSTC.

Are there special rules for claims made about therapeutic goods and services?

Rule 12 of the CAP Code and Rule 11 of the BCAP Code deal with the advertising of medicines, medical devices and health. This area is also heavily regulated by statute (Human Medicines Regulations 2012) and enforced by various regulatory bodies such as the Medicines and Healthcare Products Regulatory Agency (MHRA), the Proprietary Association of Great Britain (over-the-counter medicines) and the Association of British Healthcare Industries (medical devices) who also have their own advertising codes.

Medicinal or therapeutic claims can only be made on a medicinal product that is authorised by the MHRA. A medicinal claim is defined as a claim that a product can be used to make a medical diagnosis or treat or prevent disease, injury or an illness.

Are there special rules for claims about foodstuffs regarding health and nutrition, and weight control?

Health and nutrition claims are regulated by EU Regulation (EC) No. 1924/2006 on nutrition and health claims made on foods. Under the Regulation, nutrition or health claims can only be made if a claim is specifically authorised and listed on the EU Register of authorised health claims. In addition, any general health claims (eg, X gives you energy) must be supported in the advertising by a specific authorised health claim. Further, there are rules on when nutrition claims can be made (eg, reduced or low claims). For example, reduced sugar claims can only be made if the sugar is reduced by 30 per cent on the previous product.

Regarding weight control products, any claim to the effect that a product is an aid to slimming must be accompanied by a statement making it clear that this will only be the case if it is consumed as part of a proper calorie-controlled diet (Schedule 6 of the Food Labelling Regulations 1996 (SI 1996/1499)). The advertising codes also contain regulations on the advertising of slimming or diet products. Rule 13 of the CAP Code sets out how and to whom weight control products may or may not be marketed.

What are the rules for advertising alcoholic beverages?

The advertising codes require that advertising should be socially responsible and should neither encourage excessive drinking or daring behaviour nor suggest that drinking can overcome boredom, loneliness or other problems. The ASA has issued guidance that advises that advertisers should consider not only the amount of alcohol shown but also the way that drinking is portrayed. Care should be taken not to exploit the young, the immature or those who are mentally or socially vulnerable.

People shown drinking should neither be nor look under 25 years of age and should not be shown behaving in an adolescent or juvenile way, nor should advertising be associated with those under 18 years or reflect their culture. Younger people may be shown in some contexts but should never be shown drinking. Advertising should not suggest that drinking alcohol is a reason for the success of any personal relationship or social event. Links must not be made between alcohol and seduction, sexual activity or success.

The Portman Group Code of Practice (an industry code) also covers the promotion of alcoholic drinks. Although it is a voluntary code, when a complaint is made under the Code to the Portman Group’s Independent Complaints Panel, the panel will try to enforce the decision, in particular through retailer alert bulletins asking retailers not to stock products in breach of the Code.

What are the rules for advertising tobacco products?

The UK has implemented a ban on almost all forms of advertising and promotion for cigarettes and other tobacco products imposed by the EU Tobacco Directive (Directive 98/43/EC). In May 2016, the Standardised Packaging of Tobacco Products Regulations 2015 came into force, introducing plain packaging for tobacco products, e-cigarettes and herbal cigarettes. The regulations stipulate that only minimal branding and advertising is permitted on tobacco products.

Regarding e-cigarettes, the advertising of unlicensed, nicotine-containing electronic cigarettes and e-liquids is prohibited in broadcast media and some non-broadcast media.

Are there special rules for advertising gambling?

The Gambling Act 2005 permits gambling advertising but this law does not apply to Northern Ireland. Section 16 of the CAP Code and section 17 of the BCAP Code contain rules on gambling advertising and spread betting. They focus on ensuring that advertising is socially responsible and does not appeal to or exploit young people (those under 18 years). In 2018, CAP introduced new guidance on responsibility and problem gambling that imposes tougher standards for advertisers to follow when creating gambling advertisements. The new standards restrict adverts that create an ‘inappropriate sense of urgency’ such as those that include phrases like ‘Bet Now!’ to drive offers during live events. They also regulate free bets and bonuses, requiring advertisers to display terms and conditions and significant conditions prominently in any advertised offer. ‘Significant condition’ is defined as conditions that are mostly likely to affect consumers’ understanding of a promotion (including requirements for a consumer to deposit their own funds, wagering requirements, etc). In addition, gambling companies are required to obtain a licence from the UK Gambling Commission, which imposes further controls on advertising.

What are the rules for advertising lotteries?

Lotteries can only be advertised if they are licensed by the Gambling Commission or a local authority. Section 17 of the CAP Code and section 18 of the BCAP Code contain rules on lotteries, and as with gambling, the rules are designed to prevent socially irresponsible advertising or to ensure such advertising does not appeal to young people. Further, advertising must not suggest that participating in a lottery can be a solution to financial concerns or provide financial security. The UK National Lottery must also comply with the advertising controls stipulated in the National Lottery Advertising and Sales Promotion Code of Practice.

What are the requirements for advertising and offering promotional contests?

Promotional contests can be either skills-based competitions or prize draws (games of chance). Advertisers should be careful to ensure that prize draws have a free entry route, otherwise they may be deemed an illegal lottery. The advertising of promotions should communicate all applicable significant conditions or information including how to participate, free entry route information, start and closing dates, prize details, material restrictions (eg, geographical or age) and the promoter’s name and address.

Advertisers should not exaggerate consumers’ chances of winning a promotional contest or imply that they are lucky or have progressed to a further stage in a promotion if they have not. Contests should also be administered fairly (use of an independent panel in skills-based competitions or supervision in prize draws). Further rules are set out in section 8 of the CAP Code and section 28 of the BCAP Code.

Are there any restrictions on indirect marketing, such as commercial sponsorship of programmes and product placement?

Commercial sponsorship is generally permitted in both broadcast and non-broadcast advertising, except for on the state broadcaster, the BBC’s, television channels. Both commercial sponsorship and product placement is regulated by Ofcom’s Broadcasting Code. Programming (including a channel) may not be sponsored by any sponsor that is prohibited from advertising on television and a sponsor must not influence the content or scheduling of programming in such a way as to impair the editorial independence of the broadcaster. Sponsorship must also be clearly identified by sponsorship credits.

Product placement is permitted in films, television series, sports programmes and light entertainment programmes. It must not:

• affect a broadcaster’s editorial independence;
• be surreptitious;
• directly encourage purchase;
• be unduly prominent; or
• advertise any prohibited products.

Further, product placement should clearly be signalled with the PP symbol at the beginning and end of the programme and after any commercial breaks. The Broadcasting Code also regulates virtual advertising and prop placement and prohibits surreptitious advertising.

Briefly give details of any other notable special advertising regimes.

The advertising codes have general rules on ensuring advertising does not cause serious or widespread offence. Care must be taken to avoid causing offence on the grounds of race, religion, gender, sexual orientation, disability or age.

It is also worth noting that, although certain political advertising is prohibited in broadcasting, political advertising is generally outside the ASA’s remit.