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legislation that is in force at the end of the transition period will remain in force unless it is subsequently repealed.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.