Advertising update – the new CAP and BCAP Codes - Farrer & Co

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Advertising update – the new CAP and BCAP Codes
August 2010
1. Who are CAP and BCAP
The Committee of Advertising Practice (“CAP”) is the self-regulatory body that created and maintains the UK Code
of Non-broadcast Advertising, Sales Promotion and Direct Marketing communications (“CAP Code”) which regulates
non-broadcast marketing communications in the UK. The Broadcast Committee of Advertising Practice (“BCAP”) is
the equivalent body for broadcast marketing communications.
2. What are the Codes
CAP and BCAP launched a 12 week consultation in March 2009 to review in their entirety the CAP Code and to create
a new UK Code of Broadcast Advertising (“the BCAP Code”) as well as to ensure they were both up to date, relevant
and fit for purpose.
Over 30,000 responses were received from consumers, industry, Government, charities, parents and children’s
groups, consumer protection bodies, regulators and religious organisations which were then considered by CAP and
BCAP resulting in the new versions of the Codes which can be accessed here.
The revised CAP Code is primarily concerned with the content of marketing communications and not the terms of
business or the products themselves. The new BCAP Code applies to all adverts (including teleshopping, content on
self-promotional TV channels, TV text and interactive TV adverts) and also programme sponsorship credits on radio
and TV services licensed by OFCOM. It replaces 4 previous BCAP Codes for broadcast advertising.
Both Codes will be enforced by the Advertising Standards Authority (“ASA”) on behalf of OFCOM. The Codes do not
have legal force but supplement the law and self-regulation often ensures legislation is not needed. The ASA can
impose a range of sanctions for non-compliance and ASA rulings can generate negative publicity.
3. When will the Codes take effect
They take effect on 1 September 2010.
4. What are the key changes
The two Codes now share many of the same rules in key areas and are designed to be clearer and more userfriendly.
They also take into account relevant recent legislation including the Consumer Protection from Unfair Trading
Regulations 2008 (SI 2008/1277), the European Regulation on Health and Nutritional Claims (1924/2006/EC) and
the Gambling Act 2005 (for further information please refer to our Prize Competitions and Free Prize Draws: The
Gambling Commission’s New Guidance on the Gambling Act 2005 briefing).
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We set out some of the most important changes below:
Enhanced protection for children
• Database Practice – marketers are not allowed to collect data from under 12s without parental consent and
marketers must not knowingly collect data about third parties from under 16s (CAP 10.15 and CAP 10.16)
• Direct Exhortation and Parental Authority – advertisers are banned from using adverts addressed to / targeted
directly at children actively encouraging them to buy a product or persuade adults to buy a product for them (to
comply with the Consumer Protection from Unfair Trading Regulations 2008) (CAP 5.4)
• Computer and console games – new TV and radio scheduling restrictions will prevent adverts for age-restricted
computer and console games appearing around children’s programmes (BCAP 32.20)
• Harm and Offence – TV and radio adverts must not exploit the trust children place in parents, teachers or other
persons (BCAP 4.3)
• Scheduling - broadcast adverts featuring a well-known personality or performer, or a person who takes a leading
role in or whose appearance is central to a children’s programme, must not be scheduled in breaks adjacent to
that programme to maintain a distinction between programmes and adverts that is clear to a child (BCAP 31.10)
Social and environmental responsibility
• Compliance and Social responsibility – an overarching social responsibility rule in BCAP Code brings it in line
with the CAP Code (BCAP 1.2)
• Environmental claims – marketers must not exaggerate the environmental benefits of their products (e.g.
highlighting the absence of an environmentally damaging ingredient if that ingredient is not usually found in
competing products or highlighting an environmental benefit that results from a legal obligation if competing
products are subject to that legal obligation) (CAP 11.7) and reflecting the same for broadcast advertisements
(BCAP 9)
• Lotteries - dedicated “lottery advertising” sections cover the National Lottery and lotteries licensed under the
Gambling Act 2005 and both Codes consider that all lottery adverts should be subject to the same social
responsibility rules regardless of their different regulatory status (BCAP 18) (for further information on gaming
please refer to our Prize Competitions and Free Prize Draws: The Gambling Commission’s New Guidance
on the Gambling Act 2005 briefing)
Health
• Food and Medicine - both Codes reflect the main provisions of European Regulation 1924/2006/EC on nutrition
and health claims made on foods and European Directive 2004/24/EC on Traditional Herbal Medicines
• Photo-sensitivity epilepsy – new rules concerning visual effects or techniques likely to adversely affect members
of the public with this disorder in line with an existing TV rule (CAP 4.7 for non-broadcast)
Consumer protection
• Misleading Advertising – the definition of “free” in adverts is clarified (CAP 3.23-3.26 and BCAP 3.25-3.27)
• Financial Products / Debt Advice – adverts should comply with published OFT guidance (CAP 14)
• Significant conditions for promotions – marketers must be clear about the number and nature of prizes including
prizes available to be won and prizes guaranteed to be won. Marketers also need to ensure that recipients of
“instant wins” are able to access their prize quickly and easily (CAP 8.17.6)
• Distance Selling – the rules on distance selling in BCAP Code have been updated e.g. the consumer can cancel
within 7 days for any reason (BCAP 8.4) and advertisers must fulfil orders within 30 days unless they have agreed
a longer period for performing the contract with the customer (BCAP 8.3.5). Also new rules on dealing with
limited stock, protecting consumers’ money and making the identity of the marketer clear)
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Sector-specific rules
• Comparative charity adverts – the charity sector will now be able to air comparative adverts comparing one
charity with another on TV and radio subject to the rules on comparative advertising (BCAP 16)
• Adult material – this can only be broadcast on adult entertainment channels accessible through mandatory PIN
access controls (BCAP 23)
• Betting tipsters – allowed to advertise on TV Text services but are now also permitted to advertise on TV and
radio provided they adhere to rules on not misleading audiences (BCAP 21)
• Recognition of advertising - adverts must be obviously identifiable as such (CAP 2.1) and for broadcast
advertising, they must be obviously distinguishable from editorial content and the audience should quickly
recognise that the message is an advert (BCAP 2.2.2 and 2.1 respectively). The rules on not using news-like
techniques such as simulated news flashes or using titles or logos associated with a programme broadcast on
that media are being relaxed, with the general principle being that advertising is instantly recognisable as such
6. Online advertising
During the consultation process, CAP clarified the existing online remit of the CAP Code which covers paid-for adverts
and sales promotions on websites. The consultation did not contain proposals to extend the CAP Code’s remit to cover
marketer’s own adverts on their own websites because this was being considered by a separate project led by the
Advertising Association at that time. The advertising industry has now recommended an extended online remit to CAP
together with new enforcement powers and a mechanism to fund its regulation. CAP will review this recommendation
to bring the new remit into effect as soon as possible.
If you require further information on anything covered in this bulletin please contact advertising@farrer.co.uk or your
usual contact at the firm on 020 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific
circumstances.
Telephone: +44 (0)20 3375 7000 Email: enquiries@farrer.co.uk Web: www.farrer.co.uk