What are the regulatory challenges and key themes brands face when advertising in the UK?

In this article, Kristy Coleman focusses on the regulatory challenges and key themes brands face when advertising products and services in the UK, providing a recap on who writes the advertising codes and who regulates them. 

In the UK, advertisements are regulated through a system of self-regulation (through industry funding) and co-regulation (Ofcom has given certain powers to the Advertising Standards Authority).

Who writes the advertising codes?

The Committee of Advertising Practice (CAP) is responsible for writing the advertising codes. The Cap Code (non-broadcast) (“Cap Code”) is a rule book for non-broadcast advertisements, sales promotions and direct marketing communications. It is enforced by the Advertising Standards Authority (ASA). The Broadcast Cap Code (“BCap”) is similar, but covers broadcast advertising, such as TV and radio.

To reduce the risk of breaching the Cap Codes, brands need to be familiar with them and treat all of their marketing, whether traditional marketing or on socials, the same when it comes to ensuring compliance with the codes.

Who regulates the codes?

The ASA is a sister organisation of CAP. It is the UK’s independent advertising regulator. It’s purpose is to ensure compliance with the BCap and Cap Code.

The ASA works mostly on a reactive basis to consumer complaints, but also monitors ads. Competitors are encouraged to resolve issues between directly, rather than through an ASA complaint, although as complaints can be anonymised this often doesn’t happen. Even if only one complaint is received, the ASA will still investigate.

Rulings will often recommend an ad is amended, or removed, and some matters are informally resolved between the ASA and the brand concerned. The ASA cannot issue sanctions against those who refuse to comply, but can refer the matter to Trading Standards (non-broadcast) or Ofcom (broadcast). However, in practice, due to lack of resources, this rarely happens.

Whilst the ASA has no power to enforce the codes, there are planned changes to give the Competition and Markets Authority the power to enforce where the ASA has been unable to do so. This will result in penalties, such as fines based on turnover and other sanctions.

Recent rulings

This February we saw the ASA publish 12 rulings, which carried some important reminders. Here’s a round-up of the key ones:

Environmental claims - not all rulings are upheld and the importance of substantiation:

Greenwashing is gaining increasing ASA interest. The ASA investigates all complaints, but it doesn’t mean an investigation will lead to the amendment or removal of an ad, as seen in Ford Motor Company Ltd t/a Ford – a paid for Google ad making the claim “zero emissions driving” was not misleading, due to the specific context the ad was presented within.

The brand could substantiate and qualify the claim, therefore also showing the importance of having clear substantiations for any claims made. Of particular interest was that, because this was an environment claim, the whole life cycle of the product was considered by the brand in making and substantiating the claim.

However, conversely, the ASA upheld two rulings concerning BMW and a similar claim of “zero emissions cars” and MG Motor UK Ltd with a claim of “zero emissions cars”, as it wasn’t clear that these claims related only to when the car was being driven, or to when being driven only on an electric motor, and were both therefore misleading.

Make sure you can verify and substantiate your claims (including comparative ones) or your competitors might pick you up on it:

In AGA Rangemaster Ltd t/a AGA the ASA upheld a complaint (interestingly one from a competitor) that AGA’s claim it had the “lowest running costs for any heat-storage cast-iron range cooker” was misleading. The claim could not be substantiated by the brand with sufficient evidence and wasn’t verifiable against competitors.

A lesson here is to always make sure consumers can verify such competitor claims, such as including data that the claim was based on, or directing consumers to where they could find such information.

Facebook ads count as ads - don’t make medical claims if you haven’t got a licence from the MHRA or discourage essential treatment for a condition:

In GMRD Apps Ltd t/a Impulse Brain Training and Happyo, the ASA upheld that two separate paid-for-ads on Facebook, one for an ‘ADHD’ test and the second for an ADHD behaviour programme, required MHRA authorisation and therefore could not make the claims presented in the ads. In addition, the ads were found to discourage users from seeking medical advice. It is also worth noting that you should not direct ads at vulnerable groups.

Lessons Learned

• Be wary of greenwashing - If you are making any environmental claims, make sure you consider the whole life cycle of the product and the context the ad appears in. You can also never have enough evidence! 
• Paid for ads on social media count - Just because it is on socials, doesn’t mean the Cap Code doesn’t apply. Consider any ads on social media like you would in traditional advertising.
• Avoid any claims that seek to expressly or impliedly diagnose, treat or cure medical conditions - this includes using terms like “immune boosting”, unless you’ve got the relevant authorisations from the MHRA and can make a valid health claim. Don’t target vulnerable groups.
• Scrutinise comparatives claims - compare like with like, always make sure you can substantiate any claims you make and give the consumer the opportunity to verify the claims you make.

Kristy is a specialist in advertising and regulatory law and advises on advertising and marketing matters, including campaign clearance and dealing with ASA complaints. If you have any queries or would like to know more please contact Kristy.