Stephen Groom offers a summary.
Legal Framework
Advertisers in the United Kingdom pride themselves on having fought and won the battle against excessive legal controls. They see the system of voluntary codes set up over the last thirty years as their most potent weapon in that battle. It is true to say that the UK has fewer laws which directly impinge on marketing than many countries and the present framework is one of patchy legal controls alongside and in some cases overlapping with various regulations and Codes emanating from a wide range of statutory, quasi- statutory and self regulatory bodies.
Sources of Law
a. Statute law and common law. Legal controls on advertising in the United Kingdom come from two principal sources. First, there are laws passed by Parliament taking the form of Acts of Parliament ( Statutes) and regulations created by Ministerial order and passed under the auspices of a particular Act (Statutory Instruments). Secondly, there is the common law, the system of laws developed by the courts in its decisions in particular cases over the years. For those who run foul of them, some controls lead to civil remedies, perhaps the award of damages or the grant of an immediate banning in- junction. Others can lead to criminal convictions and fines.
b. Civil law.. If an advertisement infringes a private right of an individual, that individual normally has a civil remedy: he or she can sue the advertiser (and perhaps other people involved, such as the printer or media owner). The remedies which the infringer may have to suffer are described in more detail below. Generally speaking, however, the infringer may be ordered to cease the infringing act (if that is relevant) or by making a money payment of damages and costs, or by a combination of all of these. Most civil claims in an advertising context are likely to be framed in tort, for example defamation or passing off. Other civil claims flow from the infringement of rights created by statute, such as copy right or registered trade marks.
c. Public law. Offences against the Trade Descriptions Act 1968 or the Consumer Protection Act 1987 may result in prosecution, normally initiated by trading standards officials before the Magistrates Court or (less frequently, unless the offence is very serious) the Crown Court. Public law proceedings, potentially resulting in what amount to criminal convictions, may be less expensive than a civil law suit in terms of direct cost, but are usually far more damaging to the reputation of the advertiser and its client. It is also far more difficult (or even impossible) to settle a public law prosecution action out of court, so the bad publicity flowing from a conviction and a fine is hard to avoid. Wise advertisers, therefore, keep well within the laws which involve criminal liability.
d. Self-regulation. Self-regulatory bodies can be divided broadly into two types: those which were established and given their powers by statute, principally for the broadcast media, and those that are purely voluntary organisations having no statutory authority, for instance the Advertising Standards Authority and the Committee of Advertising Practice.
i. The Committee of Advertising Practice (CAP). This is a committee composed of representatives from a wide range of bodies involved in advertising, including bodies representing media owners (such as the Newspaper Society), advertisers (such as the Advertising Association) and advertising agencies (such as the Institute of Practitioners in Advertising). It publishes the British Codes of Advertising and Sales Promotion (the BCASP) which governs most advertising in Britain ( except television and radio advertising which are governed by the ITC and Radio Authority Codes). The CAP is a self-regulatory body without statutory powers, but its media members agree not to accept any advertising which contravenes the BCASP. Nevertheless, many advertisements and sales promotion schemes do get through the net and complaints are received by the CAP (or the ASA, see below). The consequences of a complaint of breach of the Codes are described below.
ii. The Advertising Standards Authority (ASA). The ASA was set up in 1962 to oversee the workings of the CAP. Unlike the CAP, it is independent of the advertising industry and it therefore gives the self- regulatory system an element of outside control. It carries out independent research into the effects of advertising, publicises the BCASP and the complaints procedures and deals with complaints. It also monitors advertisements on its own account and will, in appropriate circumstances, intervene to stop an advertisement which it considers contravenes the Code, even though no complaint has been received.
Constitutional Protections
The United Kingdom has not historically had a Bill of Rights enshrining and protecting specified individual rights and freedoms. From 2nd October 2000, however, this will change with the incorporation into the law of England and Wales of the European Convention on Human Rights by way of the Human Rights Act 1998. Article 10, dealing with freedom of speech, and Article 8 dealing with the right to privacy, are likely to be most relevant in an advertising context. For instance, all decisions of public authorities, such as the courts and the Advertising Standards Authority, will be subject to review on the basis that they did not conform with these Articles, and the first decisions on these points are awaited with interest..
Scotland and Northern Ireland
The substantive laws and regulations that apply in Scotland and Northern Ireland are largely the same as those that apply in England and Wales. The most important differences are in the area of legal remedies and procedures, where the Scottish approach differs in some respects. By and large, however, there are no fundamental differences in the laws and practices.
THE SUBSTANTIVE LAW REGULATING ADVERTISING
Controls on Methods of Advertising
Identification of Advertising
a. Editorial advertising. The British Code of Advertising {print advertising) and the ITC and Radio Authority Codes of Advertising Standards and Practice {broadcast advertising) all require that advertisements be clearly distinguishable as such and recognisably separate from programmes or editorial material.
b. Product placement. The ITC and Radio Authority Codes prohibit product placement and an independent television company was recently fined by the ITC for infringing this provision. Though there is no such restriction on films shown in UK cinemas, there is a question as to whether the broadcasting of films on UK television might, insofar as they contain placed products, infringe the ITC Code. No case is known of, however, where enforcement action has been taken against a UK TV station in this regard
c. Subliminal advertising. This is prohibited by law as well as by the codes covering broadcast advertising.
Direct Marketing
a. Street solicitation. There is no restriction as such on the direct solicitation of members of the public in the street. However, if such an activity results in a gathering of such a number of people as to, say, inhibit public access to buildings in the vicinity, there may be a public nuisance or an obstruction.
Both are criminal offences for which the normal sanction will be a fine, but any business that is particularly harmed by the activity may be able to establish a private nuisance and thus recover damages from those responsible or obtain an injunction preventing further such activity. Separately, since many shopping precincts are now on privately owned land, the entry onto that land for the purposes of making promotional or sales approaches to members of the public may amount to a trespass if it is without the permission of the development owners. It is also unlawful to operate a loudspeaker in the street for advertising purposes, although there is an exception allowing the initiation of non verbal messages from a vehicle selling perishable commodities. Ice cream van jingles are an example.
b. Telemarketing. Telephone canvassing has not been historically been illegal per se, but under the Telecommunications (Data protection and privacy) Regulations 1999, unsolicited telephone calls for marketing purposes are not allowed to telephone service subscribers who have previously indicated that they do not wish to receive such calls (ie "opt-out"). Separately, repeated telephone calls could in extreme cases be an actionable private nuisance, while a single telephone call could amount to a criminal offence under the Telecommunications Act 1984 if it could be shown to be capable of causing "annoyance, inconvenience or needless anxiety". Under these regulations, a statutory telephone preference service has been set up to act as a central repositary for the details of those who wish to opt out of receiving such communications.
c. Marketing by fax.The Telecommunications (Data Protection and privacy) Regulations 1999 forbid use of automated calling systems for the purposes of direct marketing by fax unless the subscriber has consented in advance (ie "opt-in"). Opt-out applies to non automated fax marketing and a statutory fax marketing preference service has been set up, operated in the same way as the telephone preference service.
d. Direct mail advertising. Currently a voluntary mailing preference service is operated for those who wish to opt out of receiving direct marketing communications by post. Once the EU Distance Selling Directive has been implemented in the UK, however, there will be a statutory right to opt out of receiving such material and an appropriate statutory preference service will be set up. Implementation is likely before the end of 2000. Separately the Mail Order Transaction (Information) Order 1976 requires that all mail order advertisements inviting consumers to make a prepayment for goods should state the seller's name and trading ad- dress. In addition, the Companies Act 1985 obliges a limited company to carry its place of registration, registered number and the address of its registered office on, amongst other things, any order form which it prints, for example in an advertisement. In some cases, the law requires that certain facts be made available to the customer before buying. These requirements apply to advertisements inviting orders off the page as well as to the display of goods in retail premises.
e. Data protection. As a Member State of the European Union the United Kingdom has put in place legislation implementing the EU Data Protection Directive 97/66. This takes the form of the 1998 Data Protection Act. Broadly, it applies to data controllers collecting or doing anything with personal data in the United Kingdom, whether or not the data controller is established here. All data controllers must notify the UK Data Protection Commission that they process such data and indicate inter alia the purposes for which they do so. There is an express right for individuals to prevent processing of their personal data for the purposes of direct marketing. For other information about the data protection regime in the UK refer to the "Data Protection" subsection of the "Intellectual Property Rights" part of this Report.
f. Distance Contracts. The EU Directive on the protection of consumers in respect of distance contracts (97/7/EC) provides consumer protection in respect of consumer sales made on a telesales, mail order or on-line basis and any other basis which does not involve any face to face contract between buyer and seller up to the time the contract is concluded. These include rights of withdrawal and rights to particular types of information. Implementation is expected by the end of 2000.
g. Internet advertising. There is as yet no UK legislation that specifically governs advertising on the Internet. Judicial and administrative decisions have held that ordinary principles apply but have yet to clarify fully the difficult issues of jurisdiction. The self-regulatory advertising control system administered by the Committee of Advertising Practice and the Advertising Standards Authority is applied to advertising on the Internet placed by UK-based advertisers who have by and large accepted ASA findings. Use of the Internet by users in the UK as regards any processing of personal data falls under the Data Protection Act 1998 and the ju – risdiction of the Data Protection Commission. See the separate Data Protection section in this Report. The Direct Marketing Association has issued Codes for its members covering marketing in an E commerce context.
h. Mailing unordered merchandise. The Unsolicited Goods Act 1971 makes it a criminal offence to demand payment for goods sent to a consumer without that consumer's prior consent. It also entitles the consumer to treat the goods as if they were his or her own if specified conditions are fulfilled. The Act also lays down preconditions before payment can be legitimately demanded of a person or company in respect of an unsolicited entry for that person or business in a directory. The ITC Code requires television broadcasters not to accept advertising from those who indulge in this practice.
i. Door to door advertising and selling. The 1987 Consumer Protection ( Can – cellation of Contracts Concluded away from Business Premises) Regulations require that a consumer's agreement at home to make a cash purchase of products costing £35 or more will, if it is the result of a cold call, be unenforceable unless written notice of a right to cancel within seven days of receipt of the notice is given. Although different time limits apply, similar cancellation rights are given to those who in similar circumstances enter into credit-assisted purchase agreements and agreements for the purchase of approved life assurance policies or unit trusts. The door step canvassing of cash loans is prohibited, whilst the Financial Services (Unsolicited Calls) Regulations 1987 heavily restrict the circumstances in which a binding and enforceable agreement for the purchase of investments can be entered into in the course or in consequence of an unsolicited call.
Prize Competitions
This is a complex area and each individual case should be closely examined on its own merits. Broadly speaking, however, there are two principal ways in which the promoter of a prize event run in connection with a sales pro- motion can be confident of staying within the law. First, the event can.be a free entry event, with the selection of the winner{s) being completely by chance. In this case, there will be no illegal lottery and no competition caught by the Lotteries and Amusements Act 1976.
Secondly, the event can be a competition in which winning a prize depends to a substantial degree on the exercise of skill. In this case, it does not matter whether contestants have to pay to enter {for example by buying the product) or entry is free. Any other combination of skill and payment elements { e.g. , pay to enter but success depends only to a limited extent on the exercise of skill) may be illegal. The British Code of Sales Promotion gives detailed guidelines as to the information to be given to customers about the prize promotion.
The ITC and Radio Authority Codes prohibit the advertising on television and radio of betting tips and all forms of betting and gaming, apart from the National Lottery and certain legal local lotteries. It is illegal under s2 of the Lotteries and Amusements Act 1976 to advertise in the United Kingdom tickets for any lottery established outside the UK, including other countries of the European Union, although it is probably not contrary to law to import into the UK tickets for other European Union national lotteries.
Under s16 of the National Lottery Act 1993) it is a criminal offence falsely to suggest a connection with the National Lottery when advertising another lottery or competition.
Promotional Gifts
There is no particular legal restriction on the distribution of free gifts as part of a promotion unless they are given in exchange for coupons or trading stamps as part of a scheme covered by the Trading Stamps Act 1964. If the scheme is so covered, and most will be unless the coupons or stamps are given away free, then the consumer has the right to recover damages for any defects in the gifts and the right to redeem the coupons or stamps for cash so long as the cash value shown on the stamps aggregates to 25p or more. The stamps must also carry a cash value, which will normally be something like 0.001 p to avoid having to redeem for cash under the "25p or more" rule. The UK government has announced that it intends to scrap this legislation, though at the time of writing it is still law in the UK.
The British Code of Sales Promotion requires that when unsolicited samples are distributed by way of a sales promotion it should be made clear that the consumer is not required to pay, is under no obligation to the promoter to accept and is not required to return them.
Television and Radio Advertising
a. General. The United Kingdom, as a European Union Member State, is subject to the European Union Broadcasting Directives, which have been implemented largely by the Broadcasting Act 1990.
b. Independent Television Commission (ITC). The ITC was set up under the Broadcasting Act 1990. It is given the power by Government to control the content of all broadcasting on the licensed or independent television channels (i.e., those which carry advertising including cable and satellite) and its power extends to controls over the content of advertising. It has published a Code of Advertising Standards and Practice which all independent television companies must follow when accepting television commercials for broadcast. In practice, the Code is administered by the Broadcast Advertising Clearance Centre (BACC), which pre-vets all UK broadcast advertising on behalf of the commercial television networks.. The ITC also publishes and enforces, a Code of Programme Sponsorship, which "sets standards and practice in the sponsoring of programmes and identifies the methods of sponsorship to be prohibited or to be prohibited in particular circumstances': All independent television companies are required to comply as a condition of their licence.
c. The Radio Authority. The Radio Authority was, like the ITC, set up under the auspices of the Broadcasting Act 1990, and it has exactly parallel powers. It also publishes a Code of Advertising Standards and Practice and Programme Sponsorship with which all radio advertising must comply. The Radio Code is different in some details from the ITC Code and is administered by the Radio Advertising Clearance Centre in the same way as the BACC, but in a radio advertising context.
d. The Broadcasting Standards Commission (BSC) The BSC receives complaints from the public concerning: "unjust or unfair treatment. ..or unwarranted infringement of privacy. .." on all UK TV networks including the BBC and is also concerned with: "practices to be followed in connection with the portrayal of violence …practices to be followed in connection with the portrayal of sexual conduct. and.standards of taste and decency" While the BSC is not given specific authority to control advertising content on television or radio, its power is wide enough to apply to advertising. In principle this could bring them into conflict with the ITC and the Radio Authority, although to date this does not appear to have occurred.
Outdoor Advertising
a. Billboards, etc. Planning restrictions prevent the display of print advertising without the permission of the local authority responsible for town and country planning in the area in question. There is no planning restriction, however, on the display of print advertising in an enclosed place such as a football ground or railway station, nor is there any planning control on the use of print advertising on vehicles such as buses and taxis and inside public buildings.
Apart from planning law restrictions, the law of trespass prevents the display of advertising on the walls of buildings or on fences without the consent of the owner. There will be a trespass also if the advertisement over- hangs the property of another, or is distributed in a way which interferes with the property of another, for example by lifting a car windscreen wiper to put a hand-bill under it. Trespass is a tort {civil wrong) for which the property owner may recover damages from the trespasser or obtain a court order or injunction preventing further trespass. Affixing posters to property without the owner's consent can also amount to the criminal offence of criminal damage.
Controls on Content of Advertising
Price Advertising
a. General. Price advertising in the UK is regulated primarily by the Consumer Protection Act. 1987 .This makes it a criminal offence for any person in the course of a business to give any indication which is misleading as to the price at which goods or services, accommodation or facilities are avail- able to consumers, defined as any person who might wish to be supplied with the goods for his own private use or consumption. Under the auspices of the Act a Code of Practice for Traders on Price Indications ( CPAC) has been introduced. Compliance with the CPAC will not automatically lead to an acquittal, nor will non-compliance necessarily mean a conviction. But whether or not the advertiser has complied with the CPAC will normally be of crucial relevance to the court's decision.
b. Price display regulation. Price displays that are accurate and state the total charge being made for the product in question will be unlikely to cause a problem under the CPAC. The Price Marking Order 1999 also contains provisions regarding how unit prices of products are displayed and in some cases advertised. Under the price control regime there could be an offence if for example value added tax is not included in a price displayed to private consumers or if a price quoted applies only to certain sizes or colours and this is not stated. In the case of mail order, any failure to quote any additional charge for postage, packing or delivery in the order form could give rise to an offence.
f. Recommended prices. Except in a very limited number of cases it is illegal for manufacturers to fix the retail prices of their products. They may, however, recommend prices, but not in relation to a wide range of electrical goods see the Monopolies and Mergers Restrictions on Agreements and Conduct (Specified Electrical Goods) Order 1998 No 1271.
g. Advertising price reductions. Generally these are permissible provided the higher price and the circumstances in which it has been or will be charged are clearly given. The CP AC advises against non specific references to worth or value. The charging of different prices to different groups of people e.g. pensioners or established customers) is quite acceptable though the CPAC recommends that words such as "our regular" or "normal' prices should not be used in relation to the higher price unless it applies to at least half the traders normal customers
h. Sales There are no significant restrictions on sales events by reference to the type of event and hence no equivalent advertising restrictions. It will, however, be an offence under the Consumer Protection Act 1987 for a trader to suggest that a sale will last, say, one week when, at the time, the intention was to hold the event for longer. However, the Code does allow for extensions of sale events by advising traders to announce any such extensions clearly. Pre-sale prices must be quoted if any price is described as a sale price. The previous price must have applied to the product in the same shop for at least 28 days during the 6 months prior to the beginning of the sale offer. If this is not the case, then an offence will be committed unless the retailer gives a clear positive and accurate explanation of the period and circumstances in which the previous price did apply.
Prohibition of Misleading Advertising
Subject to due diligence- type defences, the Trade Descriptions Act 1968 makes it a criminal offence to give certain false descriptions concerning goods, for instance as to their geographic origin, composition or age. Also prohibited are false statements concerning the provision of accommodation, services or facilities. In areas not covered by the 1968 Act, the Control of Misleading Advertisements Regulations 1988 give the commercial broadcasting authorities ( the ITC and the Radio Authority) and the Director General of the Office of Fair Trading the authority to take action to prevent further dissemination of advertising that is misleading as defined by the Regulations.
Comparative Advertising
Comparative advertising is now illegal in the UK unless it conforms to certain requirements. This follows the introduction into UK law of an EU Directive which amends the Control of Misleading Advertisements Regulations 1988 so as to extend their ambit to comparative advertising. Comparative advertising is for these purposes defined as any advertisement which in any way, either explicitly or by implication, identifies a competitor or goods and services offered by a competitor. Amongst the requirements before such advertising can be legal are that only products meeting the same needs or intended for the same purpose are compared, and that one or more material, relevant, verifiable and representative features are objectively compared. As with the original 1988 Misleading Advertisement Regulations enforcement is mainly by existing broadcast and print regulatory systems not by civil actions for damages by unhappy competitors.
Separately, comparative advertisers could be at risk of criminal proceedings under the Trade Descriptions Act 1968 if the comparison involves a false claim concerning their own or their competitor's products or under the Consumer Protection Act 1987 if misleading price comparisons are given.
Problems could also arise under the civil law, with all the attendant risks of rapid court orders banning further use of the material in question and damages awards. For example, the material may make untrue and malicious statements about a competitor's product and thus constitute a malicious falsehood or trade libel; it may make non-malicious but untrue and prejudicial allegations about the competitor itself and amount to a libel. If a registered trade mark of the competitor is shown there may be a trade mark infringement If the advertiser shows the whole or a substantial or significant part of the competitor's product or its packag- ing, there could be a trade mark or copyright infringement
Special Legislation for Particular Goods and Services
a. Alcoholic beverages. There is no legislation which specifically governs the advertising of alcoholic drinks in the UK, but the British Code of Advertising, and the ITC and Radio Authority Codes lay down detailed guidelines for print, television and radio advertising of such products.
A volume alcohol content of 1.2% is the cut-off point for the applicability of most of the detailed guidelines of the Codes, although the Radio Authority Code provides that if a broadcaster considers that a significant purpose of an advertisement for a low alcoholic drink is to promote a sister brand of stronger alcoholic content or if the drink's low alcohol content is not stated in the advertisement, then all the detailed guidelines should be applicable regardless of whether the alcohol content is below or above the 1.2% level.
b. Automotive. The fuel consumption of passenger cars sold in the UK has to be determined by officially approved tests. If reference is made in advertising to a car's fuel consumption, the law requires that the results of all those tests be included in the advertisement. The ITC Code contains a Motor Cars and Driving section, whilst a "Motoring" section now features in the new Code of Advertising.
c. Charities. There is no legal regulation covering advertising for charities as such, but the codes have charity sections with detailed guidelines. The television and radio Codes require media owners to accept advertising request- ing charitable donations only if they are satisfied as to the charitable status of that body. Other provisions of the Codes covering broadcast charitable advertising require that advertisers should handle with care and discretion matters likely to arouse strong emotion and they should respect the dignity of the people on whose behalf the appeal is being made.
Separately, regulations introduced pursuant to the Charities Act 1992 govern situations where commercial businesses, in the course of carrying out their normal activities, undertake advertising, promotional or sales campaigns which involve making charitable contributions. These require that the business has a written agreement with the charity concerned covering particular points. They require also that relevant marketing material carries information about, amongst other things, the proportion of the sale price going to charities and the identity of the recipients.
d. Diet products. Misleading statements as to the fitness for purpose or per- formance of a diet product create a risk of prosecution under the Trade De- scriptions Act 1968, while the Food Labelling Regulations 1984 require that 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.
Looking to industry self-regulation, the British Code of Advertising, the ITC Code and the Radio Authority Code carry extensive sections regulating the advertising of slimming or diet products.
e. Financial services/ credit. The Consumer Credit Act 1974 imposes a licensing system on the various kinds of businesses that collectively make up the credit industry. Advertisers need to hold a licence if they lend money, offer credit terms to consumers or arrange for other people to provide customers with credit. Advertisements for any such credit services must comply with § 46 { 1) of the Consumer Credit Act. This renders it an offence to convey information in a credit advertisement which is false or misleading. More detailed requirements as to the content of credit advertising are contained in the Consumer Credit {Advertisements) Regulations 1989. These cover most advertisements which say anything about credit being available. Careful reference should be made to them in each case..
f Food products. The advertising of food is controlled principally by the Trade Descriptions Act 1968, the Food Act 1984 the Food Labelling Regulations of 1984 and the Food Safety Act 1990. The Food Act for example, creates an offence of falsely describing food or giving it a label calculated to mislead as to the nature, substance or quality of the food. The Food Labelling Regulations control the use of particular names, descriptions and claims in rela- tion to food, mainly in packagaing and labelling but in some cases they have relevance to advertising.
g. Investments. Section 47 of the Financial Services Act 1986 makes it a criminal offence, punishable by up to seven years imprisonment, for any person to induce another person deliberately or recklessly to make an in- vestment decision on the basis of a knowingly or recklessly made statement, promise or forecast which is misleading, false or deceptive or made through dishonest concealment of material facts. An advertising agency could also be liable unless the agency proves that it reasonably believed that the material would not create an impression that was false or misleading. There is a separate offence of issuing an investment advertisement which has not been approved by an authorized person. Again, an advertising agency could be liable unless it shows that it believed on reasonable grounds that the advertisement was approved by an authorized person or that the advertisement was permitted by s.58 of the Financial Services Act. This exempts from the regulations certain materials such as annual reports of public companies. In addition, the British Code of Advertising and the ITC, Radio Authority and trade association Codes carry detailed sections ,overing advertising for in- vestments.
h. Pharmaceuticals. It is an offence under 5.93(1.! of the Medicines Act 1968 to issue a false or misleading advertisement for medicinal products. Section s93{2) makes it a separate offence to recommend their use for purposes other than those specified in the product licence. Other parts of the Act require that subject to certain exemptions all medicinal products receive a product licence before they can be marketed in the UK. Products may be regarded as medicinal and thus requiring a licence if their advertising or packaging in any way suggests they are wholly or mainly for the purpose of treating, preventing or diagnosing disease or for contraception or inducing anaesthesia or otherwise preventing or interfering with the normal opera- tion of physiological functions. ('Disease" here includes any adverse condition of the body or mind.
The Medicine {Labelling and Advertising to the Public) Regulations 1978 impose requirements and restrictions on the advertising direct to the public of medicinal products for administration to human beings. They prohibit the advertising of medicinal products available on prescription only and cover content and form of advertisements.
The Medicines {Advertising) Regulations 1994 implement Council Directive 92/28/EC. They prohibit advertising for the prevention, treatment and diagnosis of certain diseases. They specifically prohibit certain advertising methods such as suggesting that health can be enhanced by taking the medicinal product or referring to a recommendation by scientists, health professionals or persons who are neither of these but who because of their celebrity status could encourage the consumption of medicinal products. They also create a new criminal offence of advertising a medicinal product in respect of which there is no product licence or certificate of registration.
Advertising addressed to the medical and dental professions is covered by separate regulations whilst the Association of the British Pharmaceutical Industry has published a Code of Practice for the pharmaceutical industry covering promotions aimed at those professions.
Advertising for over-the-counter proprietary medicines is governed by the Code of Advertising Standards and Practice of the Proprietary Association of Great Britain, which has been accepted and approved by the Department of Health and is operated by the industry, who have the PAGB pre-vet their advertising. The ITC and Radio Authority codes and the British Code of Advertising all have special sections giving guidelines as to the making of health claims and the advertising of medicines and treatments.
i. Political. There are no legal restrictions on political advertisements in print and the British Code of Advertising (BCA) imposes no restrictions in regard to the expression of opinions in advertising concerned with political, religious, social or aesthetic controversy provided the advertiser's name and address or telephone number is given.
The Broadcasting Act 1990 gives the Independent Television Commission and the Radio Authority the power to require broadcasting licence holders to carry party political advertisements. How often, for how long and by which parties, will be determined by the authorities according to no fixed formulae, although seats in Parliament and recent opinion poll showings are likely to be regarded as relevant. The 1983 Representation of the People Act requires that any bill, placard or poster referring to an election or any printed document distributed for the purpose of promoting or procuring the election of a candidate to Parliament, the European Parliament or a local council must carry the name and address of the printer and publisher.
k. Tobacco products. Print advertising for tobacco products is presently governed by a voluntary agreement between the government and the tobacco industry. Future status will depend on whether the UK instrument implementing the EU Tobacco Advertising Directive survives a current legal challenge to it.
I. Travel. Any false statement as to the facilities to be offered on a holiday may fall foul of s.14 of the Trade Descriptions Act 1968 unless the advertiser can show that the statement was not made knowingly or recklessly. separately, any travel advertiser who wishes to place advertising in a UK news- paper has to satisfy certain conditions unless he or she is a member of the Association of British Travel Agents (ABTA).
Separately, the Package Travel, Package Holidays and Package Tours Regulations 1992 include provisions affecting the advertising of package holidays, defined as any pre-arranged combination of at least two of the following components for sale at an inclusive price covering a period of more than 24 hours or involving overnight accommodation: transport, accommodation, other tourist services (as further defined).
Protection of Children
The advertising codes include detailed requirements in relation to advertising to children and whilst the Data Protection Act 1998 contains no provisions expressly referring to this area, in anon-line context the Direct Marketing Association has published a Code of Practice for Commercial Communications to Children On Line.
Conclusion
There are countless other controls and restrictions affecting commercial communications, but it is hoped that this overview gives helpful information in respect of some of the principal areas of likely concern to those intending to market their goods or services in the UK.
This Report should not be used as a substitute for legal advice on any particular marketing activity, and separate advice should be taken in each case
