Intellectual Property Law

Regulation of Advertisement in the United Kingdom

By Martha L. Arias

The United Kingdom (UK) Advertising Authority (ASA) and the Committee of Advertising Practice (CAP) are the bodies regulating advertising practices in this country. CAP develops and publishes Codes of Practice that include advertising standard for different sectors. ASA receives complaints and issues resolutions that CAP enforces. ASA's goal is to regulate and keep UK"s advertising standards as high as possible. In addition to these two bodies, the Office of Fair Trading (OFT) regulates advertising in the UK and enforce a 1988 law that is applicable to Internet advertising. This articles offers a synopsis on UK's advertising authorities and regulations.

CAP's Codes of Practice are not mandatory or legally enforceable. Yet, CAP imposes effective commercial sanctions against those who do not comply with its codes. Advertisers, marketing agencies, and advertising companies in general are to comply with CAP's codes. There are two main categories of codes: non-broadcast advertising codes and broadcast advertising codes. The current non-broadcast advertising code is the British Code of Advertising, Sales Promotion and Direct Marketing, 11th edition. The main broadcast advertising codes are the Television Advertising Standards Code and the Radio Advertising Standards Code.

The British Code of Advertising, Sales Promotion and Direct Marketing requires that advertisement be legal, decent, honest and truthful. Advertisement must be prepared with a sense of responsibility for the consumer and following principles of fair competition. This is a non-broadcast advertisement code, therefore, it does not apply to any broadcast media or to advertisement intended to circulate outside the UK territory. This code directly applies to commercial areas such as cosmetics, hair and scalp treatment, health claims, cigarettes, alcohol, vitamins and minerals, employment and business opportunities, financial services, children products, mail orders, among others.

The Television Advertising Standards and the Radio Advertising Standards Codes apply to broadcast advertising of all products but it specifically cover advertisement of financial services, children products or services, medicine and medical or surgical treatment. The general rule required by these codes is that all broadcast advertisement shall be legal, decent, honest and truthful. These codes prohibit advertisement of illegal or unacceptable products, i.e, betting, private investigation services, matrimonial agencies, cigarette tobacco and cigarettes, and breath testing services that help covering alcohol effects. Under these codes, subliminal advertisement is prohibited and testimonial advertisement may be used provided that some guidelines are followed. For instance, that testimonials are supported and that products are described and illustrated.

ASA is the body in charge of receiving, processing, and issuing resolutions based on complaints. Complaints must be in writing. ASA will first require the advertiser to withdraw or amend the advertisement to bring it up to the code's standards. If the advertiser does not comply with ASA's request, ASA issues resolutions imposing commercial sanctions to the advertiser. Continuous infringers receive strong market pressure to the point of being denied publication of their advertisements. ASA's resolutions against infringing advertisers are subject to judicial review.

Besides CAP's code, there is a major advertising regulation that applies to Internet advertising: the Control of Misleading Advertising Regulations 1988. OFT is the body in charge of enforcing the 1988 regulations when related to advertisement on newspapers and magazines; cinema; Internet; brochure, leaflets, inserts, direct mail, circulars, display advertisement; and posters and outdoor advertisement such as bus, taxi, and aerial.

OFT receives and processes complaints on misleading and other unlawful advertisement. The processing of complaints by OFT is selective. For instance, OFT only undertakes complaints that raise serious advertisement issues, that have no other readdress, or complaints whose main issues have not been solved by other available channels.

Full post as published by IBLS Internet Law Blog on February 09, 2009 (boomark / email).