Advertising Law: a quick guide to avoiding your advert being banned like Ryanair.

As you may have seen, Ryanair’s Jab and Go Advert was recently banned by the ASA.

The watchdog held that the advert was inaccurate and misleading.

I thought I’d therefore put together a short blog on the laws and regulations on advertising and why it is important to comply with them and the pitfalls to avoid.

Don’t like reading? The watch my video instead!

Why should your small business care about getting its advertising right and compliant?

Advertising in the UK is regulated by a combination of legislation and self-regulation (although the latter is enforced by the Advertising Standards Agency).

If you get your advertising wrong, then negative results are likely to be seen, including for example:

  • disappointed consumers and loss of consumer confidence in your brand or organisation
  • negative publicity, loss of reputation
  • decisions from the Advertising Standards Authority
  • referral to Trading Standards
  • legal action from competitors
  • cost of wasted advertising spend, recall of adverts etc.

It’s important to get your advertising right.

What are the legal requirements for advertising?

The primary legislation which governs claims made in advertising is the Consumer Protection from Unfair Trading Regulations 2008.

These regulations prohibit unfair commercial practices and contain a list of 31 unfair practices which are always unfair and prohibited and therefore there is no defence or excuse. These include things like displaying a trust mark or quality mark without having one, falsely stating that a product is only available for a very limited time in order to elicit an immediate decision and describing something as free if there is something to pay.

They also prohibit:

  • aggressive practices – using harassment or coercion to induce the sale, eg exploiting a specific misfortune or circumstance in order to influence the decision to buy.
  • misleading actions – providing false or misleading information about things like price or features.
  • misleading omissions – hiding or providing unclear information about the product, or failing to identify the advert as such (as in the case of influencer marketing)
  • general unfair practices – a catch all for unfair practices not covered above.

The regulations are primarily Business to Consumer, but can also catch out business to business practices which affect consumers.

Breach of the regulations can be a criminal office, it gives consumers certain rights such as a right of refund, but breach is more likely to damage ones business.

There’s a few other laws which are relevant to advertising content, such as:

  • The Business Protection from Misleading Marketing Regulations contains a prohibition on advertising that misleads trades and regulations comparative advertising by businesses.
  • Sector specific legislation, such as tobacco and gambling.
  • Intellectual Property Law – obviously you can’t use trademarks, images, music etc without being licenced.
  • Defamation Law
  • Privacy Law
  • Passing Off

Self-Regulation – CAP Code and ASA

The two main self-regulation codes are the BCAP code for TV and Radio advertising and the CAP Code for non-broadcast advertising (which includes online).

The CAP code is enforced by the Advertising Standards Agency (ASA).

The ASA can require that adverts be amended or withdrawn – which is typically what happens when you read that an advert has been “banned”. The ASA publicises its decisions, as we saw recently with Ryanair.

Key principles of the CAP Code are that advertising must be:

  • legal, decent, honest and truthful. It is particularly important to avoid causing offence on the grounds of race, religion, sex, sexual orientation and disability.
  • responsible – with a sense of responsibility to consumers and society
  • not misleading, by inaccuracy, ambiguity or exaggeration;
  • able to evidence and prove objectively and claims made.

How best to ensure you comply and avoid common pitfalls?

Ensure that your advertising is based on what your product actually offers.

Ensure that if you’re doing direct marketing that you are compliant with data protection and privacy rules as well as rules on direct marketing.

If you’re conducting a price or prize promotion, check the appropriate rules.

Avoid misleading the consumer

Don’t disparage competitors without a very good reason.

Don’t infringe other parties Intellectual Property rights.

Don’t make an advert that would make your Mum or Gran uncomfortable (keep it decent).

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