With rather less than the speed of light, the Advertising Standards Codes for TV and Radio advertising have been updated to take account of the Consumer Protection from Unfair Trading Regulations 2008, which came into force in May 2008. Stephen Groom examines the regulatory entrails.
Who: the Broadcast Committee of Advertising Practice
When: November 2008
Law stated as at: 22 December 2008
Updated versions of the Television and Radio Advertising Standards Codes were published by the Broadcast Committee of Advertising Practice ("BCAP") and came into force with immediate effect.
BCAP is the advertising industry body that writes these codes and works alongside the Advertising Standards Authority ("ASA") as part of the UK's "co-regulatory" system for broadcast advertising control, under contract to Ofcom.
The changes are driven by the coming into force in May 2008 of the Consumer Protection from Unfair Trading Regulations ("CPRs").
The delay in these coming into force was due to the Codes in question being part of a "co-regulatory" system under Ofcom's auspices. This meant that no changes could be implemented without prior public consultation.
Non broadcast code changes appeared much earlier
This contrasts with the changes made to the non broadcast code. These were published and came into force much earlier, on 24 June 2008, although still some time after the law changed.
Because of the focus of the CPRs on unfair commercial practices, including "misleading" commercial practices, most of the changes impact on the sections of the Codes that concentrate on misleading advertising.
For example the "Claims" section of the new TV Code at 5.2 has sprouted three new sub clauses (5.2.8 Pressure to purchase 5.2.9 After sales service and 5.2.10 Exaggeration).
The section dealing with use of the word "free" also undergoes significant changes, although perhaps a little surprisingly we are told by BCAP that the earlier joint guidance on use of the word "free" published by BCAP and CAP in November 2007 is still valid.
"Always unfair" practices introduced
The changes also introduce into the Codes, where appropriate, prohibitions of ad practices within the ambit of the 31 "always unfair" commercial practices listed in Schedule 1 to the CPRs.
For example, tracking the "bait and switch" prohibition contained in unfair commercial practice #6 in Schedule 1, paragraph 5.3.4 (b) of the TV Code states:
"Licensees must be satisfied that the advertisers will not use the technique of switch selling, where their sales staff refuse to show the advertised product, refuse to take orders for it or to deliver it within a reasonable time, or demonstrate a defective sample of it, in order to promote a different product."
Unprecedented features of new Code?
This is perhaps an unprecedented extension of the Code into post advertising conduct and as such imposes significant new burdens on broadcasters. Is it practicable or fair to expect commercial stations to investigate how advertisers might conduct themselves after the ad is aired?
Another unprecedented feature in the context of the coming into force of new laws impacting the Code is the inclusion in an Appendix to the Code of a summary of the CPRs' key provisions.
Furthermore, the Appendix states that all rules in the Code itself should be read in conjunction with the summary and that the ASA will take factors identified in the CPRs into account when it considers whether advertisements breach the Code.
Why this matters:
As previously reported on marketinglaw, the CPRs have brought about the most important and far-reaching changes to UK advertising regulation for 40 years.
It was not surprising that these changes would impact considerably on the UK's self regulatory and co-regulatory ad codes.
What was surprising was the time it took for both broadcast and non broadcast codes to be changed and the lack of warning as to the in-force dates for the amendments. After all, the Directive behind the CPRs was signed off in 2005 and the UK implementing regulations were all but finalised by very early in 2008. Surely there was time enough to have these changes in force closer to May 2008?
"Human Rights Act" approach
Another striking aspect of the changes is the "Human Rights Act" approach indicated in the appendix to both codes (and the non broadcast CAP Code as well) , whereby all rules in the Codes are required to be interpreted and applied in a manner consistent with the CPRs.
This makes it clear that even if an advertisement appears on its face to comply with a particular provision of the Code, it may still face censure and a ban on further airings if the wide-ranging prohibitions of the CPRs are not circumvented. Interesting times indeed for those facing the task of reviewing ads for compliance before publication.