The Committee of Advertising Practice, which writes the ASA-administered advertising codes, is currently consulting on extensive code changes after a root and branch review. Stephen Groom focuses on the brand new rules suggested for the non-broadcast Code.
Who: The Committee of Advertising Practice
When: 26 March-19 June 2009
Where: High Holborn, London
Law stated as at: May 2009
The UK has probably the world's most sophisticated, respected and well-policed independent system for the regulation of advertising.
At the heart of the system are the codes drawn up by the Committee of Advertising Practice ("CAP") and administered by the Advertising Standards Authority ("ASA").
It all started in 1962, when the first CAP Code was published ("Code"). It is now called "The UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing". The review of the Code that was kick-started in March 2009 with the launch of a review Consultation expiring 19 June 2009 is certainly not the first review that has happened over the last 47 years, but it is probably the most comprehensive.
And that's just the Code covering non-broadcast advertising. The "Broadcast Advertising Standards Code", although a good deal younger, is undergoing similar root and branch treatment over the same timeframe.
In this report we will focus on the proposed changes to the non-broadcast Code that CAP says will introduce "entirely new" rules. From now on references to "the Review" mean the Code Review consultation document.
Good ad law learning points in consultation document
Before we do this, it is worth commenting that the Review is to be applauded for its clear and thorough approach and format. Each section starts with a helpful "Background". This summarises the relevant laws and regulations and identifies any other regulatory bodies operating in the sector. For any student looking to get quickly to grips with UK advertising regulation and control, it probably doesn't get much clearer and more instantly informative than this.
Then for easy reference, each section identifies suggested entirely new rules, rule revisions and rule deletions under the heading "Proposed Substantive Changes", with consultation questions then posed. So much for the format, now for those proposed "new rules."
New rule #1 – Clarity of qualifications
The Review proposes the first explicit reference in the Code to claim qualifications. It notes that in a world of online, mobile and digital outdoor ad displays, marketing communications very often appear only briefly. Despite recognised time and space limits imposed by media channels such as mobile, the Review feels that this should not relieve marketers of responsibility to ensure that qualifications on claims are clearly communicated. The proposed brand new rule is therefore:
"Qualifications must be clear to consumers who see or hear the marketing communication only once."
Cue cries of "Won’t caveats at a website url do?" These are probably doomed to be ignored, but purists might detect a scintilla of inconsistency with Regulation 6 of the Consumer Protection from Unfair Trading Regulations 2008 ("CPRs"). This states that when determining whether advertising omits material information, account must be taken of
"the limitations of the medium used…(including limitations of space or time); and where the medium used …imposes limitations of space or time, any measures taken to make the information available ..by other means."
Could this possible discrepancy lead to dilemmas for time/space strapped advertisers as to whether to follow the law or the code? Perhaps this is the sort of point the consultation process was designed to draw out.
New rule #2 – Geographical restrictions
Numerous upheld claims over omitted lack of network coverage in Northern Ireland and similar issues persuade the Review to propose another first, viz:
"marketing communications must state restrictions on the availability of products, for example geographical restrictions or age limits."
New rule #3-Direct response sales and children
The CAP Code already tracks the law in the form of the CPRs by prohibiting direct exhortations to children to buy products.
The Review proposes going one notch further by including a new rule which prohibits any marketing communication that is targeted directly at children and contains a direct exhortation to buy via a direct response mechanism that does not allow face to face contact with the marketer.
New rule #4-withholding prizes
In previous marketinglaws we have reported on how the CPRs apparently criminalise any failure, for good reason or bad, to award a prize in a prize promotion. (CPRs Schedule 1 #19).
"Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes or a reasonable equivalent."
This has been criticised as it does not allow for cases where it is simply not practicable to award a prize, for instance where entries into a skill competition are universally of poor quality or winners cannot be traced despite all reasonable efforts or the winning pack is not bought, and this is clearly stated in the promotion rubric to remove any risk of punters being misled.
The Review does have a new rule to suggest in this context, and depending on how it might be interpreted, it may just help ease this predicament.
The new rule reads:
"Withholding prizes is justified only if participants have not met criteria set out clearly in the rules for the promotion."
At this point, Code sads will quickly point out that this is not a genuine new rule, but merely a reinstatement of a rule that used to be in the Code but disappeared during the last, CPR-driven round of revisions in June 2008.
Some may have seen the dropping of the rule as underlining the strict CPR requirement. What the Review now tells us is that the deletion was simply a mistake and that its return "usefully makes clear when it is acceptable to withhold a prize."
This certainly might help, provided prize promotion rules clearly spell out what is required of participants, for instance that they must provide contact details so that they are contactable in stipulated circumstances.
Where the new rule is more worrying is in its apparent divergence from the CPRs' absolute requirement that prizes are always awarded.
It is also slightly discomfiting that a previous rule was deleted "in error." Perhaps we will start to see advertisers defending their complained-about ads on the basis that the absence or presence of a relevant rule was just an error.
New rule #5-False environmental benefits
The Review says it is concerned to ensure that in an area where the politics and technology are rapidly changing, overly prescriptive rules should be avoided in favour of general principles. In that spirit, just one new "Environmental Claims" rule is suggested as follows:
"Marketing communications 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 obligation."
The intention here is that this will apply to all advertisements making environmental claims, not just those referring to a competitor's product. In this way, it is hoped that this new addition will ensure the continued effectiveness of the separate "Environmental Claims" section first introduced into the Code in 1995.
New rule #6-Advertising legal lotteries
For consistency it is suggested that a new, dedicated Lottery Advertising section is created. This will for the first time apply not just to society and local authority ("SLA") lotteries, but also to advertising for the National Lottery.
SLA lottery advertising was already covered by a separate sub section of the Code whereas National Lottery advertising was only covered by its general principles.
The proposed change would ensure that the same principles would apply to all advertising for legal lotteries.
New Rule #7-Food, dietary supplements and associated health and nutrition claims
By far the most extensive new rules are proposed for this section of the Code. These are driven largely by EC Regulation 1924/2006 on Nutrition and Health Claims made on Foods ("NCHR").
Although the NCHR came into force in the UK in July 2007, the Review now feels, nearly two years on, that it might be an idea to "reflect in the Code some of the general and specific provisions of the NCHR that are directly relevant to marketing communications."
Amongst the areas covered by the proposed new rules are:
- the need to hold documentary evidence for any claim that a food product benefits health;
- allowing only nutrition claims that are listed in the NCHR and health claims that are authorised and on the Community Register kept for this purpose;
- confirming the criteria to which listed nutrition claims must conform;
- a provision prohibiting claims to a nutrition or health benefit that give rise to doubt about the safety or nutritional adequacy of another food;
- comparisons of the quantity of nutrient or energy value in foods must state the difference and relate to the same quantity of food;
- a prohibition on claims stating or implying that health could be affected by not consuming a food;
- a prohibition on health claims that refer to a rate or amount of weight loss; and
- a prohibition on health claims referring to the recommendation of an individual health professional.
Another significant new proposed food ad rule is again driven by recent legislation. The Infant Formula and Follow-on Formula Regulations 2007 as amended implemented EC Directive 2006/141/EC. The measures prohibit the B2C advertising of infant formula and control the presentation, packaging and advertising of follow-on formula baby food.
Reflecting this, the proposed new rule states:
"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 (sic), marketing communications for infant formula are prohibited.
Marketing communications must not confuse between infant formula and follow-on formula."
New rule #8-Traditional herbal medicine products
The EC Directive on Traditional Herbal Medicine Products (2004/24/EC) requires that registered traditional herbal medicines meet specific standards of safety and quality. Licensed herbal medicines are also required to meet standards of safety and quality and demonstrate efficacy through clinical trials. To reflect these regulatory differences the following new rule is proposed:
"Marketers of traditional herbal medicines may advertise for the indications listed in the product's summary of product characteristics. Marketing communications for products that hold a Traditional Herbal Medicines Registration must not imply that registration is based upon clinical trails."
New rule #9-Collection of data from children
Hitherto the Code has been perhaps surprisingly silent on any specific age at which a young person can be asked to provide data about individuals. Now, to reflect not any specific legal requirement but rather published guidance from the Information Commissioner's Office, the Review proposes the following new rules:
"Marketers must not knowingly collect personal information for marketing purposes from children under 12 about themselves without first obtaining the consent of their parent or guardian.
Marketers must not knowingly collect personal information about other people from children under 16."
The latter rule goes one step beyond ICO Guidance as ICO only talks about collecting information about adults from under 16s rather than any individuals including other children.
All this seems fair enough, but it leaves the current Direct Marketing Association Code of Practice somewhat out on a limb. This states that DMA members must obtain parental/guardian consent before collecting data of any kind, not just data about themselves or other individuals, from children of the following ages:
- in an online environment, under 16s
- in an offline environment under 14s
Having said this, the DMA is reviewing its own code and one suspects may be under pressure from its members to toe the less restrictive ICO/CAP line.
Where all these bodies come adrift is on the question of enforcement. Reported cases to date where ICO, the ASA or the DMA have taken concerted action to enforce these rules are few and far between. Hardly surprising, then, that current child/data laws and codes are ignored by UK marketers on an industrial scale. If any more restrictive rules are to have any credibility whatsoever, this aspect must be addressed and examples made.
Why this matters:
This, then, is the gist or near enough of the "entirely new" rules the Review proposes for the Code.
All in all, evolutionary rather than revolutionary it might be said. But the same may not be said for the far more extensive "Revised Rules". Looking at some of these, it is a fine judgment as to whether many of the "revised rules" are in fact "new rules" in disguise, but more will be revealed in our next report in this series, focusing on the key "revised rules" being proposed.