This business briefing explains why it is important to get advertising right and highlights some of the most common issues to consider when planning an advertising campaign. What can happen if a business gets its advertising wrong?

  • Bad publicity, loss of publicity and brand damage
  • Censure from regulatory bodies (for example, the Advertising Standards Authority (ASA))
  • Action by Trading Standards, possible court action and criminal prosecution
  • Legal action by competitors or consumers
  • Inability to acquire advertising space
  • Costly recall of advertising material and reprinting of advertising
  • Wasted media space
  • Product recalls

How is advertising regulated in the UK? Advertising in the UK must comply with a range of laws, including those on consumer protection, comparative advertising, data protection, e-commerce and distance selling. These laws are primarily enforced by Trading Standards. The Committee of Advertising Practice (CAP) Code governs non-broadcast advertising, which is enforced by the ASA. The BCAP Code contains similar rules governing broadcast advertising. There are also other specific industry codes, including those relating to direct marketing and advertising online.

Advertising may give rise to claims from other companies or individuals, for example because the advertising:

  • Infringes their copyright or trade marks
  • Trades on their reputation (known as passing off), or
  • Is defamatory

What counts as advertising? What counts as advertising for regulatory purposes ranges from television and radio adverts to direct marketing via mailshots or e-mails, to promotional materials on a company’s own website, to sponsored tweets or other social media comments made by celebrities and others.

Legal, decent, honest, truthful: The core requirement of CAP’s Codes is that advertising must be legal, decent, honest and truthful.  CAP provides a number of resources to help businesses avoid breaking its Codes:

  • Its website sets out both the Codes and help notes on specific aspects of the Codes
  • It runs a free Copy Advice Service, online and over the phone, which will review and comment on adverts. However, be aware that the ASA is not bound by Copy Advice guidance
  • Businesses can sign up for e-mail updates on the Code, any new guidance and details of ASA adjudications

Misleading advertising: 61% of the complaints the ASA received in 2011 were about misleading advertising. Advertising will be misleading if it gives false information which is likely to deceive the average consumer and cause him to take a transactional decision that he would not otherwise have taken. For example, consumers may be misled by:

  • An inaccurate or exaggerated claim about what a product does
  • A failure to mention delivery or payment processing charges that will be applied in addition to the headline price
  • An incorrect statement about a reduction in price or the period of availability of an offer
  • A claim that a product is “free”, when charges are made for packing, packaging, handling or administration
  • Failure to provide specified material information (for example, the all-inclusive price and the identity and address of the marketer) where a price is quoted for a product
  • A suggestion (for example, by use of a logo) that a business is a signatory to a code of conduct when it is not

Tips to reduce the risk of complaints that advertising is misleading

  • Make sure that any claims in the advertising can be objectively substantiated – they may need to be qualified
  • Obtain documentary evidence to substantiate all claims (for example as to pre-offer pricing or product performance) before publishing the advert
  • Take care that qualifying statements (for example, smaller print which states the restrictions on a particular offer) do not contradict anything stated elsewhere in the advertising, they can only be used to clarify
  • Ensure that the information the consumer needs to make informed decisions about the product (for example, its characteristics, pricing and the terms of any offer) is presented in a clear, intelligible, unambiguous and timely manner

Harm and offence: The second most common ground for complaint to the ASA is that advertising causes harm or offence. Businesses should ensure that their advertising does not:

  • Contain anything that is likely to cause serious or widespread offence, in particular on the grounds of race, religion, gender, sexual orientation, disability or age
  • Cause fear or distress without justifiable reason (for example, a shocking claim or image should not be used merely to attract attention)
  • Condone or encourage violence or anti-social behaviour

Marketing communications: It is essential that marketing communications are obviously identifiable as such. Make sure that:

  • Unsolicited e-mail marketing communications are obviously identifiable as marketing communications, without the need to open them
  • Advertorials (advertisements in the form of an editorial) are clearly marked as an advertisement

Sector specific rules:Businesses should be aware that there are also specific rules governing matters including:

  • Advertising to children
  • Depicting members of the public or referring to people with a public profile
  • Promotions (for example, competitions, prize draws and instant wins) and incentive schemes
  • Distance selling (selling where there is no face-to-face contact with the customer)
  • The use of databases in marketing
  • Environmental claims
  • Business sectors including, medicines, medical devices, health and beauty products, slimming products, financial products, food, gambling, lotteries, alcohol, motoring, employment and tobacco

Comparative advertising: Comparative advertising identifies a competitor, or its goods or services. It can only be used where certain conditions are complied with.
Tips for ensuring comparative advertising is lawful:

  • Ensure that the comparative claim is truthful and can be supported by verifiable facts. Check the accuracy of the data that the comparison is based on and provide sources. Consider appointing an independent third party to test and substantiate the claim before running the advertisement
  • Do not select things to compare without giving the whole picture. The claim should accurately compare relevant prices, features, benefits or performance and should not include any adversely selective comparisons
  • Do not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities or circumstances of a competitor. A mere price comparison will not break this rule
  • Ensure that the advertisement does not take unfair advantage of a competitor’s reputation, trade marks or other distinguishing marks. Consumers must not receive a false impression that there is a connection between the two brands compared

The content of this business briefing is for general information only and does not constitute legal advice. It states the law as at April 2015. We recommend that specific professional advice is obtained on any particular matter. We do not accept responsibility for any loss arising as a result of the use of the information contained in this business briefing.