• news-banner

    Expert Insights

Advertising Standards: An Update

Brexit

Following the Brexit transition period, the Committee of Advertising Practice (CAP) and Broadcast Committee of Advertising Practice (BCAP) have issued a statement on the CAP Code and BCAP Code. The CAP Code is the rule book for non-broadcast advertisements, sales promotions and direct marketing communications and the BCAP Code applies to all broadcasting advertisements (the “Codes”).

The Codes include many rules which reflect EU law or UK law derived from EU law, such as those relating to misleading advertising and the technical regulation of goods. The statement summarises the broad legislative framework created to ensure legal continuity when the UK left the EU on 31 December 2020, and after the end of the transition period.

CAP and BCAP confirm for the benefit of advertisers that all EU-derived legislation that is in force at the end of the transition period will remain in force unless it is subsequently repealed. CAP and BCAP will consider any changes that might be necessary to the Codes as they receive further information from the UK government, and will make any appropriate changes as soon as they are in a position to do so.

Under the Northern Ireland Protocol, which is part of the wider EU-UK Withdrawal Agreement, Northern Ireland will be obliged to align with specific EU rules. CAP and BCAP are monitoring legislation and government guidance to ensure that any differences in regulation between Northern Ireland and the rest of the UK are reflected appropriately in the Codes, but will not make changes to the Codes until the position in these and other areas is certain.

Gender stereotyping

A rule providing that advertisements “must not include gender stereotypes that are likely to cause harm, or serious or widespread offence" has been operative in the CAP and BCAP Codes since June 2019. Recently, CAP and BCAP conducted a review of this rule which concluded that, whilst the rule and guidance are primarily meeting their policy objectives, there was still some uncertainty as to the scope of the rule's application.

Accordingly, BCAP and CAP have clarified that the rule is intended to apply to cases concerning sexualisation, objectification and body image in which the consideration of harmful or offensive (or both) gender stereotypes come into play. They have introduced additional explanatory text into the Advertising Guidance, on depicting gender stereotypes likely to cause harm or serious or widespread offence, to explain that the ASA may apply this rule in cases concerning those areas in which it has established positions. CAP and BCAP also stated that they will continue to monitor the situation as a number of guidance principles within the CAP guidance remain untested in published ASA rulings, including ads that featured pressure to conform to an idealised gender-stereotypical body shape or physical features and those aimed at or featuring children or potentially vulnerable groups.

Ads must be identifiable

A recent ruling from the Advertising Standards Authority (“ASA”) on a TikTok post by Luke Mabbott on Boohoo’s behalf acts a reminder that marketing communications must be obviously identifiable, and that they must make clear their commercial intent. 

Luke Mabbott’s account on TikTok, featured a video of Luke Mabbott wearing two outfits. A caption alongside the video stated “Which look do you prefer” and “Outfit from @boohooman #boohooman”. The ASA ruled that this breached the CAP Code as there was nothing in its content that made it clear to those viewing it that it was an ad. In addition, given that there was a commercial relationship between Boohoo and Luke Mabbott the ASA considered that they were jointly responsible for ensuring that the promotional activity was compliant with the CAP Code.

Boohoo did have a contractual agreement in place with Luke Mabbot which included an obligation to ensure all social media posts were obviously identifiable to consumers as an ad, and they contacted Luke Mabbot’s management to remind him of his contractual obligations upon notice of the complaint. This appears to have counted in Boohoo’s favour, as the ASA’s action was limited to reminding Boohoo.com UK Ltd and Luke Mabbott to ensure that in future their ads were obviously identifiable as marketing communications by, for example, including a clear and prominent identifier such as “#ad.”

This recent ruling underlines the importance of making sure that contractual documentation is in place with influencers that requires them to act in accordance with the CAP Code and that the parties act promptly to remedy any breach when notified.

Our thinking

  • Doing business in the UAE & Israel

    William Reichert

    Events

  • Drone deliveries: Be Prepared

    Emma Humphreys

    Quick Reads

  • Charles Russell Speechlys expands commercial offering with the appointment of Rebecca Steer

    Rebecca Steer

    News

  • The Times quotes Gareth Mills on the CMA’s preliminary approval of the Activision Blizzard-Microsoft deal

    Gareth Mills

    In the Press

  • City AM quotes Gareth Mills on the CMA’s new set of principles for regulating AI

    Gareth Mills

    In the Press

  • Silicon quotes Gareth Mills on the UK consumer lawsuit against Google

    Gareth Mills

    In the Press

  • Bloomberg and The Washington Post quote Richard Davies on multiclub ownership in world sports

    Richard Davies

    In the Press

  • Product compliance and Brexit - UK Government concedes to CE markings indefinite recognition

    Jamie Cartwright

    Quick Reads

  • UAE and the Grey List: Brief Update

    Karl Masi

    Insights

  • A Summer of Sport - Top 5 Legal Considerations

    Anna Sowerby

    Insights

  • Has the Orpéa plan impaired shareholder's consent? - Le plan de sauvegarde d'Orpéa n'a-t-il pas vicié le consentement des actionnaires historiques ?

    Dimitri-André Sonier

    Quick Reads

  • The Express quotes Gareth Mills on the CMA’s report on competition in the groceries sector

    Gareth Mills

    In the Press

  • Reuters quotes Gareth Mills on the CMA’s deadline extension of the Microsoft Activision Blizzard deal

    Gareth Mills

    In the Press

  • Les défaillances en France proches de leur niveau de 2019 - French insolvencies close to 2019 levels

    Dimitri-André Sonier

    Quick Reads

  • Law.com International quotes Simon Ridpath on the use of AI in the legal sector

    Simon Ridpath

    In the Press

  • Casino Group: An agreement with investors and debt holders is expected at the end of July

    Dimitri-André Sonier

    Quick Reads

  • Raconteur quotes Caroline Swain on misleading pricing practices

    Caroline Swain

    In the Press

  • DIAC Issues First Annual Report

    Georgia Fullarton

    Quick Reads

  • PE Hub quotes Richard Davies on private equity interest in football and sports

    Richard Davies

    In the Press

  • Payment Expert quotes Janine Regan on the record £1bn fine against Meta over EU data protection violations

    Janine Regan

    In the Press

  • The Guardian quotes Gareth Mills on Microsoft lodging an appeal against the CMA’s decision to block its Activision Blizzard deal

    Gareth Mills

    In the Press

  • The Times quotes Gareth Mills on the EU’s approval of the Microsoft-Activision deal

    Gareth Mills

    In the Press

  • One year on: "Influencer Culture: lights, camera, inaction" remains astonishingly accurate

    Caroline Swain

    Quick Reads

  • UKTN quotes Gareth Mills on the CMA's review of the UK AI market

    Gareth Mills

    In the Press

  • Saudi Center for Commercial Arbitration publishes new Arbitration Rules

    Peter Smith

    Quick Reads

  • The Financial Times quotes Nick White on risks to content creators promoting counterfeits

    Nick White

    In the Press

  • The Daily Telegraph quotes Nick White on AI and 'workplace displacement'

    Nick White

    In the Press

  • Charles Russell Speechlys achieves record success in The Legal 500 2023 EMEA directory

    Patrick Gearon FCIArb

    News

  • WhatsAppGate - Should businesses be reviewing their social media policies?

    Anna Rogers

    Quick Reads

  • Dubai announces its plan to streamline the enforcement of civil judgments and arbitral awards

    Peter Smith

    Quick Reads

  • Sign of the times - the British record football transfer which very nearly didn't happen

    Pei Li Kew

    Quick Reads

  • No love (island) lost for the #muffboss – #ad is great but don’t forget the other ad rules

    Caroline Swain

    Quick Reads

  • Is it really against the law to share your Netflix password?

    Quick Reads

  • Omnichannel innovation essential in the face of outlet decline

    Caroline Swain

    Quick Reads

  • Brand owners now required to police influencers

    Katie Bewick

    Quick Reads

  • Ten Years Since The 2012 Saudi Arbitration Law: Where Are We Now?

    Peter Smith

    Quick Reads

  • Strike a Pose - Usain Bolt files legendary victory celebration as a trademark

    Henry Cuthbert

    Quick Reads

  • ITV takes the plunge and “couples up” with Ebay to dress love island contestants in pre-loved clothing

    Natalie Batra

    Quick Reads

  • Constructing a Blue-print for Electronic Execution – New Guidance from the Industry Working Group on the Electronic Execution of Documents

    Quentin de la Bastide

    Quick Reads

  • To flex or not to flex: comparing traditional offices with flexible office space

    Emma Preece

    Quick Reads

Back to top