Information about regulatory bodies and regulatory codes
Do UK ad restrictions come from the law, from self regulation or both?
Advertising in the UK is governed by a mixture of legislation, common law, regulatory control, and self-regulation. These different sets of rules overlap to some extent and some breaches of the various regulatory codes correspond to infringements of legal rights. However, the various regulatory codes do not generally have legal force and a breach of a regulatory code may not in many cases give rise to a legal claim.
What are the differences between legal restrictions and regulatory restrictions?
Generally speaking, legal restrictions are enforced through court action whereas regulatory restrictions are enforced by the regulatory bodies.
What are the regulatory bodies?
The main regulatory bodies for advertising in the UK are:
for non-broadcast advertising (including press, posters, cinema and the internet) the Committee of Advertising Practice ("CAP") and the Advertising Standards Authority ("ASA");
for television, the Independent Television Commission ("ITC"); and
for radio, the Radio Authority.
What regulatory codes apply?
The main regulatory codes for advertising in the UK are:
the British Codes of Advertising and Sales Promotion, which broadly speaking apply to non-broadcast advertising, including press, poster, cinema and internet advertising – they are drafted by the Committee of Advertising Practice ("CAP") and enforced by the Advertising Standards Authority ("ASA");
the Advertising and Sponsorship Codes of the Independent Television Commission ("ITC"), which apply to advertising and sponsorship on commercial television; and
the Radio Authority's Advertising and Sponsorship Codes.
Where can I get copies of these codes?
Copies of the codes can be found on the websites of the various regulatory bodies. See our links page for details. Alternatively, the regulatory bodies will usually send a hard copy on request.
Do UK ads have to be pre-vetted?
A number of pre-vetting systems operate:
television advertising must be passed by the Broadcast Advertising Clearance Centre (the "BACC") before it can be broadcast. The BACC is the commercial networks' agent, not the agent of the ITC. It publishes Notes of Guidance which flesh out the ITC Code (see the BACC website);
radio advertising must be passed by the Radio Advertising Clearance Centre (the "RACC");
cinema advertising must be passed by the Cinema Advertising Association (the "CAA").
Other types of advertising are generally not subject to pre-vetting although the Proprietary Association of Great Britain pre-vets all OTC drug advertising on behalf of its drug manufacturing members and in certain circumstances the ASA can require poster advertisers who are in breach of the CAP's Codes to become subject to a pre-vetting regime.
As far as legal issues go, are we talking about civil or criminal law?
Some of the UK laws relating to advertising and marketing give rise to criminal offences. For instance a badly drafted scratchcard promotion can give rise to a prosecution for operating an illegal lottery. However, many of the legal issues that you read about on this website are civil issues.
What are the worst case scenarios for problem ads?
Where an advertisement infringes legal rights, that may give rise to a claim for financial compensation against the advertiser, any advertising agency involved and perhaps also the owner of the medium in which the ad was placed. In some circumstances, an aggrieved party may also be able to persuade a court to make an injunction order preventing further publication/broadcasting of the ad in question. In a UK court action, the losing side must usually pay a large portion of the winning side's legal costs.
Some of the UK laws relating to advertising and marketing give rise to criminal offences.
A breach of the ITC's or the Radio Authority's Codes can result in an ad being taken off the air. The station concerned can be fined.
A breach of the Committee of Advertising Practice's Codes may result in publication of an adverse finding in the Advertising Standards Authority's monthly reports. The ASA has no power to levy fines or to prevent further publication of offending ads, although it can issue a "do not carry this advertisement" directive to CAP members. Since these include trade bodies representing the owners of the vast majority of UK media which carry advertising, this can be very effective. With persistent offenders the ASA can (and sometimes does) make recommendations to the Office of Fair Trading that injunction proceedings be brought to prevent misleading advertising. As mentioned above, breaches of the CAP's Codes in poster advertising may in some circumstances result in the advertiser being subjected to a pre-vetting regime for up to 2 years.
What legal issues are relevant?
There are numerous legal issues that can arise in advertising content. These range from the obvious (e.g. copyright infringement where there is blatant copying of a protected work) through to the obscure (e.g. use of an equilateral blue triangle on an orange background is prohibited under the Geneva Conventions Act 1957).
Some of the other legal areas that can rear their heads include, defamation, trade mark infringement, "passing off", malicious falsehood, consumer protection and consumer credit legislation and contract law. Where competitions and prize draws are involved, lottery and gaming law can also come into play(!), as can data protection legislation.
Particular product and advertiser categories are also subject to particular legal constraints. Pharmaceuticals, charities and financial services are each good examples.
See our other FAQ pages for more information on legal issues.
