The Committee of Advertising Practice ("CAP") and the Broadcast Committee of Advertising Practice ("BCAP") (the organisations which monitor advertising in the UK) have introduced new codes for non-broadcast and broadcast advertising. The new codes came into force on 1 September 2010 to ensure greater consistency between the non-broadcast (CAP) and broadcasting (BCAP) advertising codes.

The Codes clearly state that:

  • Advertising should be legal, decent, honest and truthful. It is particularly important to avoid causing offence on the grounds of race, religion, sex, sexual orientation and disability.
  • Advertising copy must be prepared with a sense of responsibility to consumers and society and must respect the principles of fair competition generally accepted in business.
  • Advertisements should not mislead by inaccuracy, ambiguity, exaggeration or in any other way.
  • Advertisers should hold documentary evidence to prove that they can objectively substantiate any claims they make before submitting an advertisement for publication.

Some of the key provisions that have been introduced include:

Misleading Claims

The new rules set out to prevent misleading claims made by advertisers. Where statements are to include the price, the guidance from the Department of Business, Innovation and Skills, in its Pricing Practices Guide, should be followed. The Pricing Practices Guide is clear in relation to detailing the trader's previous prices, comparison with another trader's prices as well as other methods traders may use to make their price seem the best value for money. Price comparisons should be justifiable, accurate and valid.

Similarly, marketing communications must not describe a product as "free" (or use of a similar word) if the consumer has to pay anything other than the cost of responding or delivering or paying for delivery of an item. Marketers must make clear to the customer the extent of their commitment in order to take advantage of the "free" offer.

When a prize promotion is being offered, marketers must make clear the number and nature of those prizes, including those that are available to win and those that are guaranteed to be won. Marketers must also ensure that recipients of "instant wins" are able to claim their prizes quickly and easily.

Distance selling

The rules on distance selling under the BCAP Code have been updated and place conditions on broadcasters to ensure that consumers are protected. Under the old Code, consumers could only cancel an order where they could show reasonable dissatisfaction with the product or service or delay in delivery. The new Code obliges the advertiser to fulfil orders within 30 days and gives the consumer 7 days to cancel for any reason.

Broadcasters are under a duty to ensure that advertisers have arrangements in place to protect consumer's money and tell consumers if they intend to supply substitute products or services if the advertised product or service becomes unavailable.

Database Practice

Advertising via e-mail must contain the marketer's full name and a valid address, or where it is an SMS message, the receiver must be able to reply with an opt-out request. The only exception to the rule that the receiver must have an address or code to reply to is in the case of Bluetooth advertising.

There are guidelines to ensure marketers do not make persistent or unwanted advertising attempts and that the advertising is targeted as appropriate. Where a receiver has opted-out, the marketer must ensure that they are removed from any database held by the marketer.

Recognisable advertising

The new rules state that an audience should quickly recognise that the message is advertising.

Advertisements must be obviously distinguishable from editorial content and an audience should not be able to confuse an advert with editorial content (e.g. a television programme or news item). The use of a title, logo, set or music associated with a programme that is broadcast should be treated with special care. If the message is not quickly recognisable as an advert, it could be subject to scrutiny.

The rules on scheduling of advertising have been relaxed in relation to adults (but not when it comes to children's television programmes and advertising). The rules state that broadcasters must exercise responsible judgement on the scheduling of advertising.

Unsolicited e-mail marketing communications must be obviously identifiable as marketing communications without the need for the receiver to open the email.

Sanctions

The Advertising Standards Agency will hear complaints made about potential breaches of the CAP and BCAP Codes and impose sanctions where necessary.

The first step where an advertising communication is in breach of the Advertising Codes is for the marketer to willingly undertake to amend or withdraw the marketing communication. This is nothing new and where the marketer refuses, the present sanctions are generally effective at gaining compliance. However, new sanctions, including the ability to name an advertiser who has not complied, will be included on the Advertising Standards Agency website. It is hoped that the new code will ensure greater compliance at an earlier stage without the need for the Advertising Standards Agency to step in and sanction.

Future changes

The new codes do not yet cover marketers' own marketing communications on their own websites. From 1 March 2011, marketing communications on an organisation's own website and in other non-paid-for-online space under a company's control, such as social networking sites, will be covered by the CAP Code. Advertisements in paid for space such as banner and pop-up advertisements or keyword advertising on search engines are already covered by the CAP Code as are sales promotions. However, the increased use of marketer's own websites and social networking sites requires greater regulation in this area.

This six month grace period is to allow CAP to educate organisations about the new rules and give them time to ensure compliance.