Who: The Advertising Standards Authority (ASA), the Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP)
Where: United Kingdom
When: 8 April 2025
Law stated as at: 17 April 2025
What happened:
CAP and BCAP have published the outcome of their consultation on amendments to the advertising codes to align them with the unfair commercial practices (UCPs) provisions in the Digital Markets, Competition and Consumers Act 2024 (DMCCA) that came into force on 6 April. The amendments to the codes came into force on 7 April.
The UCPs provisions in the DMCCA are mainly the same as set out in the Consumer Protection from Unfair Trading Regulations (now revoked), but with some changes to wording, definitions and structure and the addition of a new category of prohibited practices (commercial practices that are in all circumstances considered unfair). The legal framework around misleading advertising is therefore also mainly the same, but now incorporates the changes brought about by the DMCCA, hence the need to update the codes.
The main amendments to the codes reflect requirements in the DMCCA around:
- Marketing communications not omitting material information and ensuring that this information is provided in a clear and timely manner and in a way that the consumer is likely to see or hear it.
- Marketing communications not containing fake consumer reviews and making it clear where consumer reviews have been incentivised.
- The likelihood of a marketing communication causing a consumer to take a transactional decision which they would not have taken otherwise. Under the new amendments, a transactional decision is a wider concept and is no longer limited to purchasing a product.
CAP and BCAP want to avoid any unintended consequences from amending the codes and want to ensure that any changes are effective. Therefore, the amendments will be subject to review after 12 months.
CAP has confirmed that the ASA will have regard to the UCPs guidance published by the Consumer Marketing Authority (CMA) when considering enforcement action. More specifically, the ASA will only take enforcement action, in relation to drip pricing issues, against ads that clearly breach the rules and it will wait until the CMA publishes its final guidance on drip pricing, expected in the autumn before it fully enforces this aspect of the new legislation. Additionally, the ASA will follow the CMA’s approach to the new rules on fake reviews, and for the first three months from 6 April, the ASA will focus on supporting businesses with their compliance efforts, where appropriate, rather than enforcement.
It is worth noting that in the process of reviewing the misleading advertising rules, CAP and BCAP also identified certain areas not connected to the DMCCA where the rules could benefit from further clarification.
Why this matters:
The DMCCA changes to the UCPs provisions and the corresponding amendments to the CAP and BCAP codes will impact all advertisers and adverts going forward. CAP recommends advertisers refer to the CMA’s guidance and take legal advice where appropriate to aid their understanding of the new legislation. It is clear that the ASA will be enforcing these new requirements in line with the CMA’s guidance.
