This short piece covers key points of the United Kingdom Code of non-broadcast advertising, sales promotion and Direct Marketing. There is an entirely separate code which concerns broadcasted advertising, which is outside the scope of this article.

Relevant Bodies

The Committee of Advertising Practice (CAP) is the self-regulatory body which creates and revises the code:

www.cap.org.uk

Email: equiries@cap.org.uk

Telephone: 020 7492 2200

The Advertising Standards Authority is the independent body that actually enforces the code:

www.asa.org.uk

Email: enquiries@asa.org.uk

Telephone: 020 7492 2222

The code itself is lengthy and detailed and should be considered if the content of an advertisement may infringe it.

The central principle for all marketing communications is that they should be:

“legal, decent, honest and truthful”

There are two aspects to consider when devising marketing material:

  1. The actual media you intend to use;
  2. The content of your material itself;

Where marketing is being done by email, it must be clear from the email that this is an advertisement, and if it is intended to send a series of emails, the recipient must be given an opportunity to unsubscribe.

Where the piece will appear as a passage of text in a newspaper or magazine, it must be clearly described as an “advertisement feature”. This is referred to as “advertorial material” in journalism.

Points to note about content

  1. The identity of the marketer must be clear. There are stricter rules with distance selling.
    Where products are being sold over a geographical distance, the customer must be given the address of the business: the customer has an absolute right of cancellation for the seven working days following placing the order.
    From Friday 13 June 2014, there will be a change in the law which strengthens consumers’ rights: under The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, a consumer will have fourteen days to cancel their contract: the fourteen days runs from their receipt of the product.
  2. A balance should be struck between giving positive information about the product or service, but not infringing the advertising code. This entails:
    • refraining from misleading information or exaggeration about the capability or performance of the product or service;
    • If a consumer already has a right as a matter of law, the marketer may not present the same right as a special feature of their offer eg the right of cancellation
    • Any claims for the product or service must not be overstated or misleading, for example be very careful about the description “universally accepted”.

    If a scientific opinion on a particular issue is divided, then this must be made clear.

    • Any quotation from another publication must not mislead

    Obviously, permission should be sought from the author to quote their work if they are living, or if less than 70 years has passed after their death, permission from their publisher should be obtained to prevent any breach of copyright.

    • Any communication submitted for publication containing claims that consumers are likely to regard as objective must be capable of substantiation.
    • The code makes reference to “qualifications” which are really to do with accurate description eg if a particular product has a shelf life

Where slimming products are concerned we often see words to the effect of “can only assist weight loss as part of a calorie controlled diet” this is an example of a “qualification”.

Pricing

Where relevant pricing must include a description as to how the price has been calculated. This will obviously be pertinent where a series of sessions is offered in respect of a service, or a service which combines creative activity with also supplying materials (eg interior design)

It must include where relevant details of non-optional taxes, duties, fees and charges.

VAT exclusive prices may be given to those who pay no VAT or those who are entitled to be exempt. Citizens of the European Union who live in their own countries will be entitled to be VAT exempt.

If VAT is presented as a separate part of the pricing then the rate of VAT must be clear.

Delivery or postage charges must be quoted separately.

If the price of a product depends on a choice that the consumer themselves may make, then the basis of the price must be made clear. eg that a free sample will be available with a particular product.

If a particular marketing offer is available for a limited period of time, then obviously be explicit about the extent of the time.

Sanctions

An unfavourable decision by the Advertising Standard Authority could result in unfavourable publicity as the authority does publish upheld complaints on its website;

Media contractors and service providers could withhold their services;

An act of non compliance could be referred to the Office of Fair Trading;

Delay in responding to the Advertising Standards Authority could constitute a misdemeanour.

In very serious cases where a false statement of fact has been made by the advertiser which is then relied on if the person who has relied upon the false statement of fact suffers a quantifiable loss, then an individual so affected could take legal proceedings for contractual misrepresentation.

It is emphasized that this article does not constitute legal advice, any member of the public should make their own independent legal advice if they believe themselves to be affected by the issues raised in this article.

Bik Wong

Hubbard Pegman and Whitney LLP

12 June 2014


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