Who: Committee of Advertising Practice, Broadcast Committee of Advertising Practice
Where: London, UK
When: August 2013
Law stated as at: 4 September 2013
What happened:
The bodies that set the codes enforced by the Advertising Standards Authority (ASA) have issued proposals to amend provisions dealing with “Medicines, medical devices, treatments and health”.
The Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP) published consultation papers outlining proposed changes to the non-broadcast and broadcast codes respectively.
The non-broadcast proposals (amendments to Section 12 of the CAP Code) primarily reflect legislative changes in light of the Human Medicines Regulations 2012, which came into force in August 2012.
The broadcast consultation (on Section 11 of the BCAP Code) additionally considers proposals to amend:
– the rule prohibiting ads for remote treatment services, so as to allow adequately regulated services to advertise; and
– the rule on smoking deterrents, e.g. nicotine replacement therapy, so as to permit harm reduction claims.
Why this matters:
The separate consultations are a good reminder that the broadcast and non-broadcast advertising regimes in the UK operate under separate, slightly different, codes and within different frameworks.
While CAP is a truly “self-regulatory” body with no statutory basis, BCAP exercises a statutory function under the Communications Act 2003, pursuant to powers contracted out by Ofcom.
The consultations show the UK advertising regulators working hard to keep an appropriate balance between freedom of commercial speech and consumer protection – and doing a pretty good job of both keeping up with fast-moving legislation and engaging with key stakeholders.
One worrying note in the CAP consultation is at section 5.1(b), where CAP seems to be taking the line that any information presented in connection with an online sale must necessarily be a “marketing communication”. This is a logical flaw that can be traced right back to CAP’s initial guidance on the March 2011 CAP Code online remit extension – and which is totally at odds with the offline position, where point-of-sale displays and packaging/labelling fall outside the Code’s remit. If CAP and the ASA were to apply this approach in practice, it would mean that whole categories of products that can lawfully be sold both offline and online would not be able to be offered for sale online without breaching the CAP Code. Doesn’t the regulator need to revisit its definition of “marketing communication” to address this issue and avoid absurd consequences?
The consultations are due to close at 5pm UK time on 25 October 2013. The consultation papers can be found here.
