1 October 2012 saw the coming into force of Equality Act provisions outlawing discrimination in the supply of goods or services on grounds of age. Heidi Bernard focuses on the implications for advertisers according to official guidance.
Who: The UK Government
When: 1 October 2012
Where: England and Wales
Law stated as at: 5 October 2012
The Government has now brought into force the provisions within the Equality Act 2010 ("EA 2010") which prohibit age discrimination against adults in the field of goods and services by virtue of the Equality Act 2010 (Commencement No 9) Order 2012.
The relevant provisions of the EA 2010 are sections 13, 19, 26, 27 and 29. Service-providers are defined as "A person…concerned with the provision of a service to the public or a section of the public (for payment or not)" (section 29(1)). This includes the provision of goods and facilities (section 31(2)) and applies regardless of whether the relevant persons are exercising a public function (section 31(3)).
Under the EA 2010, there are a number of exceptions:
• general exceptions allowed under the Act;
• positive action measures; and
• the ability to justify age discrimination by showing a good reason for 'objective justification' (section 13 and 19 EA 2010).
Furthermore, there are specific exceptions to the ban in the draft statutory instrument, Equality Act 2010 (Age Exceptions) Order 2012 ("Age Exceptions Order"), which is expected to be laid before parliament shortly:
• age-based concessions
• age related holidays
• age verification
• clubs and associations concessions
• financial services
• residential park homes
Businesses can rely on the exceptions when age is a key element of the service sold and this is appropriately advertised. The guidance gives an example under the 'Sport' exception to demonstrate that the exception would not apply if a sporting event was advertised as open to all, but revealed age restrictions only when prospective participants applied to take part.
In addition, the Home Office guidance for small business states that if a business provides age-based services, it can still "advertise, market and sell products and services to younger or older people as niche marketing, providing…[it doesn't] refuse the service to anyone outside…[the] target group".
Why this matters:
The Age Exceptions Order will clarify the exceptions under the EA 2010. Therefore UK businesses providing a service which falls into an exception will be in a good position to develop properly targeted advertising and marketing. This includes making extensive use of social media to reach younger target groups. However, as a caveat to this, advertising and marketing must be clear if it is promoting an age restricted service in order to take full advantage of any relevant exceptions.
On the flip side, it may be that care has to be taken to ensure that marketing and advertising for services which do not fall under an exception and are not age based do not mislead the consumer. For example, showing only teenagers in an advertisement for a soft drink may be seen as age discrimination, as it could be taken to suggest that the drink is restricted to the younger generation. It is not clear whether the provisions on misleading advertising in the CAP Code will be applied in such a context.