They’ve been nearly three years coming, but now, at a price, the brand new CAP/BCAP advertising codes have landed. Stephen Groom notes key changes and messages but queries the charge for the privilege of reading them off screen.
Topic: Regulatory
Who: Committee of Advertising Practice ("CAP") and Broadcast Committee of Advertising Practice ("BCAP")
When: March 2010
Where: London
Law stated as at: 26 March 2010
What happened:
After a more than elephantine gestation of three years, the new and radically revised BCAP (broadcast advertising) and BCAP (non broadcast advertising) Advertising Codes have been published. They will come into force on Sunday 1 September 2010.
These can be viewed on-line, but they cannot currently be downloaded and printed. Hard copies are available, but at a price of, wait for it, £44.95 a pop. Is this an early result of the recent ASA "systems review"? Its remit did include new ways of generating revenue for an increasingly cash-strapped regulator. But never fear, 10% discounts are available. With orders for 10 or more copies.
No wonder veteran marketer and review project Chair Andrew Marsden has been quoted as saying "Every single marketing person and every agency in the UK has got to get a copy of this." Nice little earner.
So what are some of the key messages for advertisers?
• The radio and TV codes have been merged into a single UK Code of Non-Broadcast Advertising and in a long overdue rationalisation, two other codes, the BCAP Rules on the Scheduling of Television Advertisements and the BCAP Advertising Standards Code for Text Services, have also been rolled in. The big one, however, combining the broadcast and non broadcast codes, is a job for another day.
• No extension yet of the ASA system to cover more on-line marketing content. It must have been the original plan to synchronise this and the code updates after strong Government pressure and three years of discussions, but CAP tells us that this is still a work in progress with launch of the extended digital remit due "later in 2010" or during "the second half of 2010" depending on which official pronouncement you read.
• Format and lay-out wise, CAP tells us ungrammatically that the new codes are "simpler, better laid out and easier to follow, more user-friendly in lots of ways." Each key section contains an overarching principle while guidance is either incorporated into rules or available in separate documents a click away. Worries on the "principle" approach are that it might enable the regulator to find an ad in breach because it offends the "spirit" of the principle, even though it does not breach any specific rule contained in the relevant section. Perhaps a development of concern to agencies and advertisers seeking crystal clarity as to what's in and what's out before they commit to costly TV and radio ads.
• Of concern for similar reasons is that the broadcast Code has now been aligned with the non broadcast Code by the addition of a general "social responsibility" clause. Another potential challenge, perhaps, for edgy broadcast ads that don't necessarily break any other specific rule.
• Some reports have suggested that the car ad rules have been significantly tightened, but there has been no massive change. The non broadcast code currently forbids ads condoning or encouraging "irresponsible driving," whilst the new provisions have been brought more into line with the broadcast code by extending the verboten things to "dangerous", "competitive" and "inconsiderate" driving. No major surprises here.
• Condom ad scheduling rules will change so that for the first time they can be aired before 9 pm. A change not unrelated to the UK having the highest teenage pregnancy rate in Europe. But thankfully for parents they still won't be allowed during programmes aimed at children under 10.
• Staying with children, there has been much song and dance about a new rule forbidding the collection of data from children under 12 without parent or guardian consent. However this is nothing more than a re-statement of the accepted position under data protection law and in fact arguably falls considerably short of it. The Information Commission has long made it clear that parent or guardian consent is needed to collect personal data from under 12s but it has also stated that this consent must be "explicit and verifiable." No such requirement is imposed by the new Code.
• Still with so called "screenagers", there are changes to video game ad rules. The new broadcast code responds to concerns expressed in the Byron report of two years ago. Tight controls are imposed on the scheduling of TV and radio ads to prevent ads for age-restricted video games from being aired around programmes made for or likely to appeal to under 16s. This aligns these rules with those for movie ads.
• For charities there's a new freedom to compare themselves with other good cause bodies in broadcast ads. Scant enthusiasm has been expressed by charities since the change was announced but according to review Chair Marsden, the sector was apparently calling for this. Stand by for unseemly ads comparing the percentages of donations that go in admin costs?
• More new freedoms include broadcast ads for adult material, but only on coded access adult entertainment channels, which hardly seems revolutionary, and for betting tipsters subject to new rules.
• Advertisers of prize promotions should note the new requirement that advertisers are clear as to which prizes are guaranteed to be won and which are only available to win. Promo advertisers must also bear in mind "always unfair" commercial practice # 19 in the Consumer Protection from Unfair Trading Regulations 2008 which is a criminal offence and involves:
"Claiming …to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent.
Why this matters:
This is the first time that the broadcast and non-broadcast codes have been reviewed and updated in parallel. The exercise has been huge, with 30,000 responses to the consultation having to be evaluated and three years in all spent.
In the "Regulatory Statement" which CAP published with the new Codes, reference was made to concerns expressed by many consultation respondents about the new Codes re-stating and thereby duplicating detailed legal provisions which already impact for example on nutrition and health claims and types of advertising and marketing that fall foul of "unfair commercial practices" laws.
CAP is unapologetic about this. If the ASA is to be the "established means" of consumer protection in advertising, it says, it cannot do this without a Code that takes legal provisions as its minimum standard. Furthermore, CAP regards it as its duty to operate Codes which act as a "plain English quick reference guide" to the main provisions of the law in important sectors like food advertising. CAP gamely admits that this has sometimes not been easy when faced with "opaque wording" in recent European regulations, but it firmly believes it must face this challenge "head-on."
Time will tell whether this massive exercise has met its objective of ensuring that the Codes provide "the best, most robust and evidence-based approach to consumer protection and industry integrity to take marketers into the new decade", but one thing that is clear is that UK advertisers and marketers need to ensure that the next five months are profitably spent in getting outside these new rulebooks.
Stephen Groom
Head of Marketing and Privacy Law
Osborne Clarke, London
stephen.groom:osborneclarke.com
