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The Advertising Standards Codes

This page contains:


Introduction and overview


The Advertising Codes


ASA decisions


BCAP Code -broadcasting


CAP Code - non broadcast


Enforcement

 

Introduction and overview

The Advertising Standards Authority (“ASA”) is a self-regulatory trade body which enforces the Advertising Codes written by committees of advertising practice. The Advertising Codes lay down rules for advertisers and media owners to follow. The basic principle is that advertising must be responsible, must not mislead, or offend. There are specific rules that cover advertising to children and advertising for alcohol, gambling, motoring, health and financial products.

The UK marketing industry set up the advertising self-regulatory system for non-broadcast advertising in 1961.

The ASA is primarily a complaints-based regulator dealing with around 26,000 complaints a year. However the ASA also takes own initiative actions from time to time and regularly undertakes compliance surveys of advertisements published by sectors about which there is a particular concern or in sectors where compliance may be unsatisfactory.

The system is financed by advertisers through a voluntary levy of 0.1% on display advertising expenditure and airtime and 0.2% of the Royal Mail's Mail sort contract. The ASA receives no public funding from the tax payer.

The Advertising Codes

The ASA is not responsible for writing the rules. The UK rules for advertising are written by the advertising industry through two Committees: the Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP). The members of these committees comprise the main industry bodies representing advertisers, agencies and media owners (including individual broadcasters):

* BCAP is responsible for writing and maintaining The UK Code of Broadcast Advertising

* CAP is responsible for the rule book The UK Code of Non-broadcast Advertising, Sales Promotions and Direct Marketing. “Non-broadcast” means ads in media such as cinema, press, posters and online.

With effect from 1 March 2011, the remit of the ASA was extended significantly to cover marketing communications online, applying to all sectors and all businesses and organisations regardless of size, including:


* Advertisers‟ own marketing communications on their own websites; and


* Marketing communications in other non-paid-for space under their control, such as social networking sites like Facebook and Twitter.

What’s new item on this topic [see What’s new page or archive for full item]:

19/01/2017: ASA reveals 2016’s most complained about ads

The UK’s top 10 most complained about ads for 2016 included ads featuring dancing businessmen in shorts and high heels, blind footballers kicking cats, and Scottish football fans singing about wanting the England team to lose. However, none of the Top 10 ads were ruled by the Advertising Standards Authority (ASA) as having crossed the line between bad taste and offence, and none were banned.

 

02/06/2014: ASA publish report on current state of food advertising to children

The ASA has published its ‘Report: Food advertising and children—Making sure we have a healthy debate’.

21/11/2012: New Online Behavioural Advertising rules to come into force
From 4 February 2013, the Advertising Standards Authority (ASA) will require advertising networks and other ‘third parties’ to notify web users of ads delivered using Online Behavioural Advertising (OBA) and to give web users the choice to opt out of receiving such ads. The Committee of Advertising Practice (CAP) has made the new rules after thorough consideration by bodies representing the online advertising industry.

Content of the Codes

The Advertising Codes contain wide-ranging rules designed to ensure that advertising does not mislead, harm or offend. Advertisements must also be socially responsible and prepared in line with the principles of fair competition. These broad principles apply regardless of the product being advertised.

The Advertising Codes contain specific rules for certain products and marketing techniques. These include rules for alcoholic drinks, health and beauty claims, children, medicines, financial products, environmental claims, gambling, direct marketing and prize promotions.

The ASA claims to administer the rules in the spirit as well as the letter, in order to prevent advertisers to escape sanctions due to a technical reading of the Codes.

Substantiation

An important rule of the Advertising Codes is that all claims must be substantiated before being published or aired. Before distributing or submitting a marketing communications for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.

What’s new item on this topic [see What’s new page or archive for full item]:

08/01/2014: AASA Adjudication on The French Van Man
Claims on www.thefrenchvanman.com, a UK to France van service, featured a list of testimonials in the "references" section. One testimonial was credited to Phillipa and Mark Taylor.
Comment: the ruling in the French Van Man case highlights the CAP Code rule about testimonials with which many websites and other communications fail to comply. Rule 3.45 states: ‘ Marketers must hold documentary evidence that a testimonial or endorsement used in a marketing communication is genuine, unless it is obviously fictitious, and hold contact details for the person who, or organisation that, gives it.’

ASA decisions

The ASA publishes its decisions on complaints about advertisements and marketing communications on its website on weekly basis:

Legaleze comment: these decisions provide a form of “case law” for the application of the Codes. They are well worth reading in order to get an idea of the issues which arise. Note that the ASA may and often does rule on a complaint made by just one person and apply sanctions for breach of the Codes.
In addition, the Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP) provide guidance on the interpretation of the Advertising Codes. It would be helpful if the Codes were annotated with relevant rulings and guidance but absent this businesses will need to search the site.

The UK Code of Broadcast Advertising ('BCAP Code')

Information about the BCAP Code may be found here

This first edition of the BCAP Code came into force on 1 September 2010. It replaced the four previous separate BCAP Codes for broadcast advertising.

The Code applies to all advertisements (including teleshopping, content on self-promotional television channels, television text and interactive television advertisements) and programme sponsorship credits on radio and television services licensed by Ofcom.

Advertisers, agencies and media owners are encouraged to sign up to CAP Services to receive news, advice and practical guidance on the new Advertising Codes.

The overarching principles of the Code are that advertisements should not mislead or cause serious or widespread offence or harm, especially to children or the vulnerable

BCAP Code Sections

The BCAP Code contains detailed rules on the following categories:


Introduction
Contains definitions of key terms used in the Code e.g. ‘broadcasters’, ‘audience’ etc. Also contains background information on the legal framework for broadcast advertising regulation.

01 Compliance
Information about pre-clearance. Rules relating to social responsibility and legality. It also spells out that the ASA applies the Code in the spirit, as well as the letter.

02 Recognition of advertising
Separation rules and content rules to ensure that ads are not mistaken for editorial.

03 Misleading advertising
A key and extensive section of the Code, containing rules such as substantiation (evidence to prove claims); pricing; the use of the word ‘free’; availability of products, comparisons, testimonials and more.

04 Harm and offence
Rules to ensure that ads do not cause harm or serious or widespread offence. Includes rules relating to loudness of TV ads; shock tactics, unsafe practices and photosensitive epilepsy.

05 Children
Rules that must be followed if directing ads at children or featuring them. Includes rules about unsafe practices and unfair pressure; pester power and sales promotions for children.

06 Privacy
Rules about permissions for depicting – or referring to - living persons in ads, including members of the public and those with a public profile.

07 Political and controversial matters
Ban on political advertising, including definitions on what is considered political.

08 Distance selling
Rules governing marketing communications that allow readers to place orders without face-to-face contact with the seller. Covers cancellation and refunds.

09 Environmental claims
Rules about making ‘green’ claims for products or services. Rules cover evidence, the clarity of claims and ‘life cycle’ of products.

10 Prohibited categories
Lists products and services that are not permitted to be advertised on TV or radio at all.

11 Medicines, medical devices, treatments and health
Use of health professionals; rules on evidence (very high level needed for medicinal claims); suitable qualifications for those claiming to treat or offer advice; medicines rules; herbal and homeopathic product rules.

12 Weight control and slimming
Rules for ads for weight control, slimming foodstuffs and aids, including exercise; diets, clinics and medicines.

13 Food, food supplements and associated health or nutrition claims
Rules relating to health and nutrition claims in foodstuffs; claims for vitamins and minerals; infant and follow on formula and food and soft drink advertising to children.

14 Financial products, services and investments
Rules for all financial advertisements, includes provisions on interest rates and, lending and credit.

15 Faith, religion and equivalent systems of belief
Rules for advertising by, or on behalf of bodies that are wholly or mainly concerned with religion, faith and other belief systems. The rules also apply to ads by anybody for related products and services.

16 Charities
Includes rules around donation, including refunds.

17 Gambling
Social responsibility rules for gambling and spread betting. The rules cover content and targeting and are designed to protect under 18s and the vulnerable.

18 Lotteries
Social responsibility rules that apply to lotteries (including The National Lottery; Gambling Commission licensed lotteries and locally registered lotteries).

19 Alcohol
Social responsibility rules for alcoholic drinks. The rules are designed to protect under 18s and the wider population.

20 Motoring
Social responsibility rules for motor vehicles, covering safety, speed and irresponsible or anti-social driving behaviours.

21 Betting tipsters
Social responsibility rules for gambling and spread betting. The rules cover content and targeting and are designed to protect under 18s and the vulnerable.

22 Premium-rate telephone services
Rules covering pricing and content of ads that promote premium-rate telephone services.

23 Telecommunications-based sexual entertainment services
Rules restricting where and when such advertisements can appear.

24 Homeworking schemes
Rules restricting the nature of advertisements for homeworking schemes and to ensure they do not mislead.

25 Instructional courses
Rules restricting those who can advertise such courses and ensuring they don’t mislead.

26 Services offering individual advice on consumer or personal problems
Requirements for suitable credentials for advertising.

27 Introduction and dating services
Rules to prevent advertisements from causing harm, including to under 18s.

28 Competitions
Rule about fair and clear administration of competitions.

29 Private investigation agencies
Requirements for suitable credentials for advertising.

30 Pornography
Rules restricting the advertisement of R18-rated material.

31 Other categories of radio advertisements that require central copy clearance
Ads for adult products and services that require central copy clearance, including adult shops, stripograms 18+ media.

33 Electronic cigarettes
Rules around electronic cigarettes.

32 Scheduling

Pre-clearance

The majority of TV and radio advertisements are pre-cleared before they are broadcast. Under their licences broadcasters must take reasonable steps to ensure that the advertisements they broadcast are compliant with the TV and Radio Advertising Codes. To help them do this, the broadcasters have established and funded two pre-clearance centres:

* Clearcast for television commercials


* The Radio Advertising Clearance Centre (RACC) for radio advertisements.

The UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code)

Information about the CAP Code may be found here

The main principle for all marketing communications is that they should be legal, decent, honest and truthful. All marketing communications should be prepared with a sense of responsibility to consumers and society and should reflect the spirit, not merely the letter, of the Code

This twelfth edition of the Code came into force on 1 September 2010. A very important extension of the remit of the CAP Code came into effect on 1 March 2011 when the Code began to apply to firms’ marketing claims on their own websites and in other non-paid for space they control.

The Code applies to:

a. advertisements in newspapers, magazines, brochures, leaflets, circulars, mailings, e-mails, text transmissions (including SMS and MMS), fax transmissions, catalogues, follow-up literature and other electronic or printed material;

b. posters and other promotional media in public places, including moving images;

c. cinema, video, DVD and Blu-ray advertisements;

d. advertisements in non-broadcast electronic media, including but not limited to: online advertisements in paid-for space (including banner or pop-up advertisements and online video advertisements); paid-for search listings; preferential listings on price comparison sites; viral advertisements; in-game advertisements; commercial classified advertisements; advergames that feature in display advertisements; advertisements transmitted by Bluetooth; advertisements distributed through web widgets and online sales promotions and prize promotions;

e. marketing databases containing consumers’ personal information;

f. sales promotions in non-broadcast media;

g. advertorials;

h. advertisements and other marketing communications by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that are directly connected with the supply or transfer of goods, services, opportunities and gifts, or which consist of direct solicitations of donations as part of their own fund-raising activities.

The Code does not apply to:

a. broadcast advertisements (The BCAP Code applies);

b. the contents of premium-rate services, which are the responsibility of PhonepayPlus;

c. marketing communications in foreign media. [Note: the European Advertising Standards Alliance (EASA). EASA co-ordinates the cross-border complaints system for its members (which include the ASA);

d. claims in media addressed only to medical, dental, veterinary or allied practitioners;

e. classified private advertisements, including those appearing online;

f. statutory, public, police and other official notices or information;

g. works of art exhibited in public or private;

h. private correspondence;

i. live oral communications, including telephone calls and announcements or direct approaches from street marketers;

j. press releases and other public relations material not covered by part I above;

k. editorial content; e.g.of the media or of books and regular competitions such as crosswords;

l. flyposting (most of which is illegal);

m. packages, wrappers, labels, tickets, timetables and price lists unless they advertise another product or a sales promotion or are visible in a marketing communication;

n. point-of-sale displays, except those covered by the sales promotion rules or the rolling paper and filter rules;

o. political advertisements as defined;

p. website content not covered by I d and I h, including (but not limited to) editorial content, news or public relations material, corporate reports and natural listings on a search engine or a price comparison site;

q. sponsorship; marketing communications that refer to sponsorship are covered by the Code;

r. customer charters and codes of practice;

s. investor relations;

t. ‘heritage advertising’ by or from companies, organisations or sole traders on their own websites, or in other non-paid for space online under their control, where that advertising.

CAP Code Sections

The CAP Code contains the following sections:


Preface

Information about the industry committee (CAP) that writes the Code and why they’re committed to high standards in marketing communications. 

Scope of the Code

What the Code does – and does not – apply to. How the ASA assesses ads, including targeting and audience. 

01 Compliance

Rules relating to social responsibility; legality and fair competition. It also spells out that the ASA applies the Code in the spirit, as well as the letter. 

02 Recognition of marketing communications

Rules about making sure material is clearly identifiable as marketing communications / advertisements / advertorials.

03 Misleading advertising

A key and extensive section of the Code, containing rules such as substantiation (evidence to prove claims); pricing; the use of the word ‘free’; availability of products, comparisons, testimonials and more. 

04 Harm and offence

Rules to ensure that ads do not cause harm or serious or widespread offence. Includes rules relating to shock tactics, unsafe practices and photosensitive epilepsy. 

05 Children

Rules that must be followed if directing ads at children or featuring them. Includes rules about unsafe practices and unfair pressure; pester power and sales promotions for children. 

06 Privacy

Rules about depicting members of the public; referring to people with a public profile; implying endorsement and the Royal Family. 

07 Political advertisements

Clarification of when the Code applies to political advertisements. 

08 Promotional marketing

An important section about promotions (e.g. competitions, prize draws, instant wins, front page flashes, charity promotions etc) and incentive schemes. The rules cover the administration of the promotion, as well as the publicity. 

09 Distance selling

Rules governing marketing communications that allow readers to place orders without face-to-face contact with the seller. Covers cancellation; fulfilment of orders and refunds. 

10 Database practice

A crucial section for anyone doing direct marketing and collecting or using customer information. Covers consent (opt in and opt out), retention of information and suppression requests. 

11 Environmental claims

Rules about making ‘green’ claims for products or services. Rules cover evidence, the clarity of claims and ‘life cycle’ of products. 

12 Medicines, medical devices, health-related products and beauty products

A high level of scrutiny is applied to marketing communications for such products or treatments. These rules cover evidence levels (very high levels needed for medicinal claims); suitable qualifications for those claiming to treat; medicines rules; herbal and homeopathic product rules; cosmetics and hair growth / loss. 

13 Weight control and slimming

Rules for ads for weight control, slimming foodstuffs and aids, including exercise; diets, clinics and medicines. Rules cover the targeting of ads as well as the content. 

14 Financial products

Rules for financial marketing communications that are not regulated by the FCA or Trading Standards. 

15 Food, food supplements and associated health or nutrition claims

Rules relating to health and nutrition claims in foodstuffs; claims for vitamins and minerals; infant and follow on formula and food and soft drinks marketing to children. 

16 Gambling

Social responsibility rules for gambling and spread betting. The rules cover content and targeting are designed to protect under 18s and the vulnerable. 

17 Lotteries

Social responsibility rules that apply to lotteries (including The National Lottery; Gambling Commission licensed lotteries and locally registered lotteries). 

18 Alcohol

Social responsibility rules for alcoholic drinks. The rules cover content and targeting are designed to protect under 18s and the wider population. 

19 Motoring

Social responsibility rules for motor vehicles, covering safety, speed and irresponsible or anti-social driving behaviours. 

20 Employment, homework schemes and business opportunities

Rules that require clarity of the nature of employment and business opportunities, including display of earnings and any commitments required from consumers. Section covers employment agencies, homework schemes, business opportunities, vocational training and instruction courses. 

21 Tobacco, rolling papers and filters

Rules to prevent promotion of smoking via ads for non-tobacco products. 

22 Electronic cigarettes

Rules that apply to the marketing communications for electronic cigarettes and related products. 

The self-regulatory system

Details around how the system works. 

History of self-regulation

Details of how advertising self-regulation developed from the 1880s to today. 

Appendix 1 The CPRs and BPRs

This section explains the law on misleading and unfair marketing communications. This law is reflected within the Code and the ASA has regard to the law when considering misleading, aggressive or unfair marketing communications. 

Appendix 2 Advertising rules for on-demand services regulated by statute

Rules relevant to advertising carried on video on-demand services regulated by Ofcom. 

Appendix 3 Online behavioural advertising

Rules relevant to Online Behavioural

CAP guidance and advice

The Committee on Advertising Practice offers general and bespoke advice and training on the CAP Code. There are 'Help Notes' and an 'Adviceonline Database. Examples of guidance arexce'See CAP travel marketing guidance on Travel promotions, Availability and Pricing and “free flights”

Pricing

When reviewing price statements, the ASA and CAP will take the Department for Business Innovation & Skills (BIS) Pricing Practices Guide into account:

* A price used as a basis for a comparison should have been the most recent price available for 28 consecutive days or more. If the previous higher (or “was”) price was charged for only 14 days for example, the ad should make this clear.

* In general, the period of time for which the new (lower) price will be available should not be more than that for which the old (higher) price was available.

* Comparisons made with prices last offered more than six months ago may be unacceptable.

CAP Copy Advice.

The CAP Copy Advice team provides free pre-publication advice to advertisers, agencies and media to help them create advertisements; promotions and direct marketing that meets the CAP Code. For more information, see the above link.

Requests for advice may be made online. There is a free service and also “premium”, paid for services.

Following the extension of the ASA’s digital remit to cover marketing communications on companies’ own websites the Copy Advice team has introduced a new premium bespoke website audit service for advertisers. The service claims to offer a “tailored and expert assessment” of companies’ websites against the CAP Code with a view to giving their marketing communications a clean bill of health and providing compliance guidance.


Legaleze comment:


(i) The website premium service is quite expensive at a basic charge of £800 plus VAT [as at December 2011] (and larger websites may require more time and accordingly attract a higher fee). It is not entirely clear whether free advice may be obtained for a website.


(ii) Businesses which use direct selling and marketing methods (see the page on Direct selling and marketing by telephone, email, fax and post) need to have systems which support compliance with the Advertising Codes and the Privacy and Electronic  Communications Regulations (see the page on Direct selling and marketing by telephone, email, fax and post).

Enforcement of the Codes

Complaints: the ASA normally act on a complaint by a third party. However in some cases the ASA may take its own initiative to enforce the Codes. In the case of a complaint by a competitor, the ASA will normally require the complainant to provide evidence that it has tried to resolve its complaint with its competitor, before the ASA will accept the complaint.

The Codes are administered on a self-regulatory basis and the ASA has no power to fine or impose other direct legal sanctions for infringement of the Codes or non-compliance with decisions of the ASA. In practice it seems that most advertisers comply with the ASA’s rulings. The 'extra-legal' sanctions applied by the ASA include:

* Publication of adjudications (stored online for 5 years or more in some cases)
* Request to media owners to refuse to feature infringing advertisements
* Other sanctions exist to prevent distribution of infringing direct mail
* “Name and shame” section on the ASA’s website for offending websites

.

The ASA may refer non-broadcast advertisers who persistently break the Codes to Trading Standards for legal action under the Consumer Protection from Unfair Trading Regulations 2008 and Business Protection from Misleading Marketing Regulations 2008 (see separate articles).

Broadcasters who continually air advertisements which break the Codes may be referred to Ofcom, which has the power to fine them or even revoke their licence.

Legal challenge to o ASA decisions

The ASA may be subject to judicial review; see:


R (on the application of Sainsbury's Supermarkets Ltd) v Independent Reviewer of Advertising Standards Authority
Adjudications [2014] EWHC 3680 (Admin) Hearing Date: 10 November 2014 Queen's Bench Division, Administrative Court (London)

Sainsbury's sought judicial review of the decision of the decision by the Independent Reviewer of Advertising Standards Authority Adjudications that there had been no substantial flaw in a decision of the Advertising Standards Authority (the ASA) with respect to Tesco's price comparison scheme. The High Court ruled that the Independent Reviewer had not been wrong in law or unreasonable (in the sense of the leading Wednesbury case) in concluding that the ASA's decision had not been substantially flawed

.

What’s new items on this topic [see What’s new page or archive for full item]:

01/04/2018

ASA welcomes Criminal Behaviour Order on Errol Denton

Subject: Marketing and advertising regulation/Advertising codes

Source: Advertising Standards Authority (ASA)

The ASA has welcomed the Criminal Behaviour Order and fine of a total of £2,250 handed to the operator of a website promoting unsupported medical claims about ‘dozens of safe natural alternatives’ to chemotherapy, surgery or radiotherapy for people suffering from.

Errol Denton was behind the business Live Blood Test and livebloodtest.com website and was convicted for two breaches of the Consumer Protection from Unfair Trading Regulations 2008 and one breach of the Food Safety Act 1990.  Mr Denton was also ordered by the Judge to pay £15,000 in costs.

In 2013, the ASA ruled that misleading and irresponsible health claims made on Errol Denton’s website breached the Advertising Codes. No evidence was provided by Denton to support the claims being made. Denton failed to respond to the complaints made against him or to comply with the ASA rulings. The ASA referred the case to National Trading Standards.

07/03/2018 ASA rules StubHub UK, Viagogo, Seatwave and Get Me In! misled consumers

Source: Advertising Standards Authority (ASA)

Complaints against four of the biggest operators in the secondary ticketing sector have been upheld by the Advertising Standards Authority (ASA).. The ASA warned that secondary ticketing companies must ensure their pricing is transparent by including clear and relevant information about additional fees at the start of the buying process, so a potential buyer can make an informed decision about a purchase.

05/03/2018 Cityfibre challenges lawfulness of ASA’s ruling over the term 'fibre'

Source: Cityfibre

In November 2017, the Advertising Standards Authority (ASA) announced the conclusion of its review of ‘fibre’ broadband. In addition to new standards on broadband pricing and new guidance on broadband speed claims, the ASA commented on the current use of the term ‘fibre’ in advertising to describe both part-fibre and full-fibre broadband services.

The ASA’s announcement referred to the Government’s Digital Strategy which made clear its view that the term ‘fibre’ should only be used to describe full-fibre broadband services, and to MPs’ concerns expressed in the House of Commons about the use of the term ‘fibre’ to describe part-fibre broadband services. The ASA explained that in the light of those concerns, it had set up a review of how it interpreted the Advertising Codes when judging the use of the term ‘fibre’ to describe broadband services.

The ASA consulted ‘key stakeholders’, received a range of responses from providers of part-fibre and full-fibre broadband services, consumer organisations and other regulators and commissioned independent consumer research. In the light of the research and evidence obtained, the ASA concluded that the term “fibre” was not one of the priorities identified by consumers when choosing a broadband package, was not a key differentiator and that once educated about the meaning of fibre, participants did not believe they would change their previous purchasing decision and did not think that the word ‘fibre’ should be changed in part-fibre ads.

CityFibre has now announced that it has filed a judicial review [sic] of the ASA’s decision to allow internet services over copper-based networks to be classified as fibre.Cityfibre states that consumers are being misled into believing copper-based networks are equal to full 'fibre' broadband in terms of speed and reliability and that most broadband services, such as BT Openreach and Virgin, provide all-copper or part-copper-part-fibre networks, which offer slower download speeds, poorer upload speeds and less reliable services

[Page updated: 03/05/2018]

 

More information>
The basics: contract for sale
Legal tender
Limitation and exclusion clauses
Sale of goods
Supply of services
Inertia selling to businesses
E-commerce
Sales to consumers
Unfair terms
Sales to consumers, distance selling
Doorstep selling
Marketing and advertising regulation    introduction
Advertising Codes
Advertising to businesses and    comparative advertising
Advertising to consumer regulations
Approved trader schemes
Direct marketing by telephone, email,    text message, fax and post
Data protection in relation to marketing