A revamped, re-titled “British code of advertising, sales promotion and direct marketing” will soon be at the heart of the UK’s self regulatory system for non-broadcast advertising.
Topic: Self regulation
Who: The Committee of Advertising Practice
When: March 2003
The Committee of Advertising Practice, the body which draws up Britain's leading self regulatory code for all non broadcast advertising, launched the eleventh edition of the "CAP Code". The new rules are in force now, but to give advertisers time to get used to the new code, complaints received up to 4 June 2003 will still be considered under the old code.
To reflect its new and much wider ambit through the line, the CAP Code's new full title is "The British Code of Advertising, Sales Promotion and Direct Marketing". However, marketers continue to be reminded that if they are members of the Direct Marketing Association, for example, they will still have to comply with the DMA's own code, which overlaps with the CAP Code in many respects.
In a separate piece on marketinglaw.co.uk, we have focused on the new provisions in the CAP Code dealing with digital marketing. Here we will look at some of the other key changes to the code.
To reflect its wider applicability to above and below the line marketing messages, the word "advertising" has throughout been changed to "marketing communications".
Direct marketing/distance selling
Here this is a considerably expanded section which reflects the legal position since the introduction in 2000 of the Consumer Protection (Distance Selling) Regulations 2000. For instance, clearer instructions are given as to notification of the right to cancel orders made on-line or by mail order.
In the light of the introduction in 2000 of the Control of Misleading Advertisements (Amendment) Regulations, much more information is given as to the conditions that need to be met for comparative marketing communications to be acceptable.
The recent introduction as of August 2002 of the Electronic Commerce (EC Directive) Regulations 2002 is reflected in various provisions, including those requiring that unsolicited e-mail marketing communications must be clearly identifiable as such without the need for recipients to open them.
Sales promotion rules overhaul
The Sales Promotion Rules have been clarified and the layout simplified. More help is given as to when the word "free" can compliantly be used. For instance, marketers should not describe an individual element of a package as "free" if the cost of that element is included in the package price.
Separately, there appears to be perhaps a slight slackening in the rules as to the use of the word "free". This comes by way of an indication that marketers can call an offer "free" so long as they charge no more than the minimum, unavoidable cost of responding to the promotion. Presumably this means a first or second class stamp, a short, ordinary rate telephone call or a modest period of time on-line.
In the area of prize promotions, the code underlines the importance of taking legal advice before running them. New clauses also prevent prize promoters from claiming either that they are luckier than they actually are or that consumers must respond by a specified date if they do not in fact need to. Outside of prize promotions, closing dates for promotions generally should normally be included prominently if they are applicable. There is also more help in the code as to when a closing date may not be required. This will apply where promotional products are stated to be "subject to availability", to promotions limited only by the availability of promotional packs and loyalty schemes run on an open-ended basis.
The cigarette code has gone following the introduction of the tobacco advertising ban from 14 February 2003.
The rules on motoring marketing communications are strengthened to state that as well as not encouraging anti social or irresponsible driving, neither should marketing communications condone them.
A further restriction introduced here is that relevant marketing communications should not suggest that drinking can overcome boredom, loneliness or other problems or that alcohol has therapeutic qualities.
The new code confirms the position it has now taken for some years in the interactive marketing sphere. This is that the CAP Code does not apply to marketing communications contained within the marketer's own website and advertising the website owner's products.
The code clarifies that most fly posting is illegal, reflecting increasing local authority concerns at the prevalence of this practice.
An amendment here states that references to tests, trials, professional endorsements, research facilities and professional journals may be used without the permission of those concerned, if they are genuine statements taken from a published source.
Clause 15.2 is amended to state that prices quoted in marketing communications and addressed to the public should always include VAT and other non optional taxes and duties imposed on all buyers. It is also stated that RRPs used as a basis of quoted price comparisons should be genuine and should not differ significantly from the price at which the product is generally sold.
Marketing communications in foreign media
The CAP Code now makes it plain that direct marketing originating outside the UK but targeted at UK consumers will be subject to the jurisdiction of the relevant authority in the country where it originates, so long as that authority operates a suitable cross border complaint system. If it does not, then the ASA will take what action it can.
The CAP Code goes into more detail as to the circumstances in which marketing communications should include the full name and geographic address/contact details of marketers and suppliers. These are listed as distance selling communications with written response mechanisms (e.g. postal, fax or e-mail), sales promotions and marketing communications for one day sales, homework schemes, business opportunities and the like. Other unsolicited e-mail marketing communications and distance selling communications with telephone response mechanisms only should contain the full name and contact details of the marketers also. Marketers should also remember here that there are various legal requirements to provide information about marketers contained in instruments such as the Consumer Protection (Distance Selling) Regulations 2000 and the Electronic Commerce (EC Directive) Regulations 2002.
The continuing requirement here that marketing communications should not offer specific advice on, diagnosis of or treatment for serious or prolonged conditions unless conducted under supervision of a doctor or other suitably qualified health professional appears to be leavened by new wording which states that "accurate and responsible general information about such conditions may, however, be offered".
For the first time the CAP Code indicates the exact age under which a person will be regarded as a "child" for marketing communications control purposes. This is under 16, thus bringing the code into line with TV and radio rules.
How the system works
This section has been substantially updated. For instance, there is a new separately titled "Independent review procedure" section which describes this in much more detail. This includes a not insignificant change to the timetable for review requests. The previous 14 days has changed to a 21 day time limit and there is also new wording indicating that this may not be immutable by stating that the independent reviewer may waive this 21 day time limit if he judges it fair and reasonable to do so.
Why this matters:
It is clear than an enormous amount of work has gone into the CAP Code updating and revision process. It was also certainly high time that this occurred in the light of significant changes to a raft of relevant laws since the last version was produced, particularly in the areas of distance selling, e-commerce and comparative advertising. For marketers not yet familiar with the new code, a read-through on the train going home tonight is strongly recommended.