Expert Advice: Advertising Legalities
September 5, 2011 10:25 AM
The rules on advertising are set down in two codes of practice by the Committee of Advertising Practice and are policed by the Advertising Standards Authority (ASA).
Until recently, the ASA only policed print media, but since March this year it has also had the power to oversee digital media as well, including the internet and social media. It has the power to impose sanctions or refer a trader for possible prosecution.
The 12th edition of the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing deals only with non-broadcast media. It covers the content of an advertisement, the running of sales promotions, distribution of promotional items and the use of personal data collected from an advertisement.
Who and what is covered?
The code covers printed material, including newspapers, magazines, leaflets, catalogues, posters and promotional media in public spaces, marketing material and advertorials.
Since March it also covers online media including email, SMS texts, fax, paid-for web space, banners, paid-for listings, price-comparison sites, classified adverts and adverts sent by Bluetooth.
Advertising must be legal, decent, honest and truthful and should reflect the spirit, not just the letter, of the law. The code also requires that advertising should be identifiable as such and that advertorials must be highlighted as 'advertisement features'.
The ASA also uses the Consumer Protection from Unfair Trading Regulations (CPRs) 2008 when adjudicating on a case. The CPRs ban 31 trading practices on the basis that they are unfair and alter the consumer's buying process.
The rules state that an advert must not mislead, overly exaggerate, omit important information, misdescribe the price or characteristics of a product, or be misleading about the identity or address of the trader.
Any claims that are made, for instance, about a product's usefulness, must be substantiated. Unsubstantiated claims that end up before the ASA for adjudication might be regarded as misleading. Similarly, if there are any limitations to a product, they must also be detailed.
While some exaggeration is allowed, an advert must not detail a consumer's legal right as an attribute of the product.
Although like-for-like comparisons are permitted, they must be objective and misleading comparisons with another product or trader are banned. Likewise, price comparisons must be linked to the price at which an item is generally sold.
By definition, the description of pricing needs to be accurate and take into account the Department for Business Innovation & Skills' Pricing Practices Guide (see www.berr.gov.uk/files/file46254.pdf).
Pricing must not mislead by omission and must include anything that consumers have to pay. VAT-exclusive prices can only be used if the consumer can recover VAT. And if a price depends on the purchase of another product, the advert needs to give details of the purchases that are also required.
The rules state that an advert cannot describe something as 'free' or 'without charge' if the consumer has to pay anything other than the cost of delivery.
'Free trial' cannot be used on money-back offers where a non-refundable purchase is required and an advert must state if a 'free' product is of a lesser quality than a charged-for product.
Consumer guarantees are also dealt with by the code. The word 'guarantee' must not be used in a way that will confuse consumers; guarantee limitations must be detailed in the advert; and any advertised money-back guarantee must be honoured promptly.
As with claims made about the features of a product, endorsements or testimonials need to be backed up on paper (unless they're obviously fictitious). Any testimonials used must be with the permission of the person giving it, and the advertiser cannot claim to be endorsed by or be a member of a body to which it doesn't belong.
The code bans anything that is likely to cause harm or offence, especially on the grounds of race, religion, gender, sexual orientation, disability or age. However, just because
an advert doesn't breach this ban doesn't mean that it cannot cause offence. In addition, adverts must not cause fear without good reason.
Sales promotions - money off, two-for-one offers, competitions etc - also need to be seen as fair, prompt and efficient, and must avoid causing unnecessary disappointment.
Anyone can complain to the ASA about an advert and if a complaint is upheld failure to follow a ruling by the ASA can lead to publishers withholding future advertising space; a withdrawal of trading privileges such as Royal Mail bulk mail discount; the pre-vetting of new advertising material; and internet search engines removing links to paid-for online advertisements.
At the extreme, those who refuse to comply with the ASA over an issue that involves unfair or misleading advertising, face referral to the Office of Fair Trading for possible prosecution. Those found guilty of an offence under the Consumer Protection Regulations 2008 could face a fine of up to £5,000 on conviction in a Magistrates' Court; or in the case of a conviction in the Crown Court, a fine or imprisonment up to two years, or both.
A report on the BBC website indicates that more than a quarter of councils are using the Clean Neighbourhoods and Environment Act 2005 to charge for permission to leaflet in public areas or restrict the practice. Sheffield, for example, charges £75 a year for a permit to leaflet, with a £2,500 penalty for leafleting without permission.
Owners of private land - for instance supermarkets and car parks - have their own rules and you'll only be committing trespass if there's a notification stating no leafleting, or if you're asked to leave the land and refuse to do so. Similarly, you can put leaflets through letter boxes - there's an implied right to do so - unless specifically told not to.
Putting leaflets under windscreen wipers might be fine in relation to trespass, but you could end up in hot water should your leaflet be discarded in the street by the vehicle owner.