15.1 Introduction
When it comes to
advertising within the UK, there are a number of things that every company
has to take into consideration to make sure that they fall within the laws
of the country.
The problem for most companies
is that they are simply unaware of what they are and are not allowed to do
within the confines of the law when it comes to their advertising and
marketing. Ultimately, this can make it relatively easy for companies to fall
foul of the regulations simply because they are unaware of the grey areas
of the laws of advertising.
15.2 Who Regulates the Laws According to the UK?
At the root of
everything based around the law and advertising within the UK is the
government, which operates everything through the Advertising Standards
Authority.
This is an independent body that deals with the enforcement of the laws and
regulations.
The ASA regulates advertising across all forms of media, including
online advertising. It is the organisation that has to try to enforce the regulations
as published by the Committee of Advertising Practice. As a result, it is
responsible for checking advertisements to see if they are misleading, harmful,
illegal, or offensive in any way.
15.3
The UK Advertising Codes
In 2017 the ASA resolved 27,138 complaints, 98% of whch were from the
public and relating to 19,398 ads.
These complaints
are governed by what is known as the UK Advertising Code. This number
does not include the ASA's own investigations that have been uncovered due to
its own monitoring of advertisements in the UK. This code is aimed at not only companies, but it also targets
media owners, advertising agencies, and the advertisers themselves.
In other words, if you own a
company that is using an advertising agency to create and run your marketing
campaign, you are still going to be held at least partly responsible and you
are not going to be immune from prosecution.
According to the code, advertisers
and everybody involved in the marketing process must make sure that the
advertisement is responsible, does not offend, and follows specific rules
attributed to products or services linked to alcohol, children, gambling,
health, and financial industries. This is linked to laws attributed to the
industry itself rather than the advertising code, although the organisation
takes those laws into consideration simply because of how they then have to be
reflected in everything that the companies do, including their marketing.
15.4 The Two Codes of Practice
The committee offers two different codes of practice: non-broadcasting
material and broadcasting material, which is television and radio.
Both are enforced by the ASA, and they must meet the laws attributed to
individual industries as mentioned above. Clearly both codes are rather
specific as the broadcasting practice must also focus on rules and regulations
as to what can and cannot be broadcast in general terms to the public.
Furthermore, there are additional regulations and rules depending on whether
you are advertising to the public or to other businesses, and we should look at
both aspects to make sure that there is no possibility of individuals being
confused.
15.5
Media Areas that are Covered by the Codes
The advertising codes cover every aspect of
media.
This means television, radio,
newspapers, Internet, and even cinema adverts. Furthermore, the same codes also
include billboards and any form of printed advertising, even if you are looking
at something as simple as door-to-door flyers. In addition, it does not matter
about the size of your advertising campaign, as the same code applies to
international companies down to the small sole trader that is only working
within their local area.
15.6 Advertising to
Consumers
When it comes to advertising to consumers, companies are not only bound by
the general advertising code of practice, but there are also consumer laws that
are combined with the regulations put forward by the governing body.
However, this is not intended to further confuse the issue, but rather make
sure that each company is fully covered by every conceivable law that could
potentially cause issues.
With a consumer, a business must make sure that they do not fall foul of the
Unfair Trade Regulations, and with that there are some key points that have to
be mentioned at this point:
First, no company can mislead anybody by making false claims in
their advertising. At the same time, they are also unable to harass or mislead
them thanks to instilling some kind of fear in their advert that something will
happen if they do not take action and use their product or buy their services.
Any company that offers false or deceptive messages will have their adverts
removed instantly, as it leads to individuals being forced into making a
decision that they may not have otherwise done simply because of the message
that they picked up from the advert. In addition, it is illegal for companies
to leave out key information in their advert as this will lead to the consumer
being left to fill in the blanks, which often leads to them making the wrong
decisions.
The final main point that advertisers must take into account with the consumer
is that they cannot use what could be determined to be aggressive sales
techniques.
15.7
Advertising to Businesses
When it comes to businesses and advertising
to them, then you are covered by other regulations, which do not include those
that are linked to specific industries.
Generally speaking, you have
to deal with the Misleading Marketing Regulations, and even though a number of
the regulations are similar to those that you must follow with consumers, there
is one subtle difference.
With advertising to
businesses, you cannot mention any unfair comparisons to other companies that
are your competitor. This is regarded as being underhanded and is illegal as
advertising must be about the business and what it has to offer. Many adverts
have had to be pulled from broadcast because ASA have declared that they have
actually broken the regulations.
In addition, when creating
your advert, you cannot use the logo or a trademark of your competitor. This is
going to be construed as misleading, and you should never compare products
between yourself and a competitor when there is not a fair comparison to be
made. Once again, this is going to be misleading and it is an unfair way to
advertise.
15.8 Sanctions and Compliance of the Regulations
Having these regulations and codes are only part of it because you then have
to also contend with how to make companies comply with them and, when they do
not, how you then use sanctions to stop other companies from breaking
advertising law.
When it comes to compliance, the Committee has to deal with the ASA in order to
deliver what their findings may be after an investigation. The Committee is
responsible for making sure that every advertiser is offered a level playing field.
However, the Committee must also check adverts instead of waiting for
complaints.
However, when the Committee and ASA have discovered an advert that has indeed
breached their regulations, the main way the Committee deals with it is not
only to go after the advertisers, but also the medium that they have used for
their advert. After this, they then seek assurances that the advert is either
withdrawn completely or it is amended to ensure it meets regulations.
This, therefore, means that the Committee will inform the advertiser of the
reasons as to why their advert has been deemed to be in contravention of the
laws. Depending on the severity of the failure to comply with the laws they
will indeed be given the choice of withdrawing it or changing the advert before
any further action may be taken.
There are a number of times where companies have refused to cooperate with the
information supplied to them by the ASA or the regulatory bodies. In those
instances, or where the regulations have been broken on a number of occasions,
the companies in question will be referred to their Trading Standards, which
can then take action against the company. This can lead to a fine and, at
times, officers of the company can be taken to court and removed from
controlling the company for a period of time. However, this is rare.
15.9
Advertising to Children
There are certain regulations that are linked
to how a company can advertise to children in the UK, too.
For instance, advertisers must
make sure that children are not in any danger, and at the same time the adverts
cannot be harmful or misleading in any way. Indeed, these laws are even
stricter when dealing with children as things have to be explained in an easy
to follow manner since children can be easily misled.
As a result of how naive children can be when it comes to
advertising, the ASA is likely to take action and ban any offending adverts
immediately to prevent any children being taken advantage of.
However, it should be noted
that even the ASA have admitted that advertisers do tend to take their social
responsibility seriously and they do take more care over their adverts for
children than they perhaps would do with adults.
The laws surrounding
advertising to children have been made tighter in recent years as there is real
concern about issues such as potential alcohol usage as well as issues
connected to diet. That is why there are now further restrictions on food and
soft drinks and how they are advertised and the times at which they can be
shown on television. In addition to this, they have to make it clear as to the
nutritional value as well as the number of times that the advert can be shown
during the day.
15.10 Advertising
with Food and Drink
To carry on the comment regarding food and drink adverts aimed
at children, we should also mention that the different regulations also apply
to food and drink adverts that apply to adults.
For instance, no advert can be displayed that encourages what could be
considered as promoting unhealthy eating no matter the age of the person.
Furthermore, the advert must describe the nutritional value and not be
misleading in any way. If this is the case, then the advert will be removed
immediately.
When it comes to drink, then the main cause for concern regarding the laws is
connected to alcohol. Clearly, it is illegal for the adverts to be aimed at
people under 18, and at the same time, they cannot promote irresponsible
drinking in any way. If this is the case, then the ASA will take action with
the advert, and it must be amended or removed immediately. At the same time,
companies are now required to place a warning regarding drinking responsibly.
This is part of their social responsibility, which is a recurring theme when it
comes to advertising in general.
With alcohol, the laws regarding their advertising in the UK are
among the strictest in the world. The reason for this is because of the known
link between alcohol advertising and usage. As well as the points mentioned
above, advertisers must also avoid linking drinking alcohol with sexual
awareness or other similar actions.
In addition, there can be no alcohol adverts that are shown around programmes
or other adverts that are linked to anything related to children or those under
18. This is not something that is taken lightly, as can be seen by various
rulings that have been enforced over the years by the ASA. Indeed, one advert
by Diageo, who are behind some of the biggest alcohol brands in the world, was
forced from television screens as it contained a parrot which was deemed to be
too appealing to children.
15.11
Advertising and Gambling
Regulations and laws surrounding advertising
and gambling have changed in recent years, especially with the popularity of
online casinos.
However, there is a real need
for companies to follow strict laws as to the content they are permitted to
have and also when they can advertise.
For example,
companies are unable to show adverts that encourage gambling behaviour that
could lead to an individual becoming financially unstable. At the same time,
the adverts cannot target the under 18s in the same way as alcohol, as this is
also seen as being socially irresponsible due to the way in which those under
18 could be more impressionable and unable to fully understand what is going on
with the message being put across in the advert.
If we can go back to the
financial aspect, there should be no instance where the gambling company even
hints at the possibility of it being a solution to financial problems, as this
is also seen as being irresponsible on the part of the company. Finally, no
gambling advert can link itself to sex or seduction. It has to stay firmly on
track with what the company is offering, although there are various companies
that do push the limits as to what is and is not regarded as being acceptable.
FACT
In 2016, betting firms spent £150m a year on TV adverts. A single advert for
Premiership football is thought to cost about £35,000.
Source: bbc.com
15.12 Advertising on Health and Beauty
The problem regarding anything connected to health and beauty is that you
are playing with how people feel about themselves as well as their own health,
so there are strict regulations as to the claims that can and cannot be made.
The make-up industry has fallen afoul of the regulations on a number of
occasions, and this has only increased with the usage of programs such as
Photoshop, which can digitally alter photographs to make them look better than
they actually are. This is seen as misleading and has led to a number of
adverts being withdrawn as a result.
Furthermore, they are unable to make claims that cannot be verified by science,
and they are also not allowed to exaggerate the claims as to the benefits that
can be achieved by using the product in question. This is directly linked to
the idea of no advert being allowed to be misleading in any way.
Adverts that are linked to cosmetic surgery should never trivialise the process
of having surgery, and they must also not be misleading as to what can be
achieved nor the reasons as to why having enhancements can be beneficial to the
individual. This is another area where the ASA is likely to come down hard on
any advert that breaks the laws. These will be removed immediately due to the
potential health risks associated with having the adverts live for longer than
is required.
The health and beauty industry is one that is constantly having to adapt to the
laws surrounding adverts as the code of conduct and advertising ethics are
changing to take into account new advances in technology and medical
procedures. As a result, any company that works within this industry is advised
to consult with the ASA or the Committee to discover what the latest advances
are before their advert goes live.
15.13
Advertising and Charity
Advertising for charities is a difficult
issue as it often includes information and images that are distressing to a
number of people.
However, as it is the nature
of their industry, it does mean that they have to follow a fine line with the
companies, making sure that they make it clear as to how much money goes to the
charity via the fundraising. There is also a limit on the number of distressing
scenes that can be used at any given time.
The laws surrounding this type of advertising are being examined
on a regular basis to make sure that people are not swamped by images that
could sway their decision.
15.14 Advertising and Misleading Adverts
Up to 80
percent of the complaints made about adverts are connected to people believing
that they have been misled in some way.
The main cause for concern are those adverts that are guilty of
not including certain information even in the small print, such as booking fees
or credit card fees.
Furthermore, financial adverts that make claims as to how much money can be
saved by using their products are also banned, as they must make claims that
can be substantiated and are seen as being the average. That is why insurance
companies now have to state the average savings that can be made rather than
making claims as to the maximum that can be saved at any given time.
In other words, any company that makes an advert must make sure that every
single aspect of their advert contains all of the relevant information that an
individual needs regarding either a service or product.
15.15 Examples
of Companies that have Broken the Regulations
Finally, we should look at some examples of
companies that have broken the law regarding advertising in the UK.
This will show how easy it can
be for even the largest companies in the world to misjudge the laws and find
themselves on the wrong side of the regulations.
1. Apple
Apple may very well be the
richest company in the world, but in 2004 it saw itself being told to change an
advert due to a failure to comply with the regulations. The advert in question
was linked to one of their computer systems with the advert claiming it was the
fastest computer in the world. The ASA saw that this claim was unsubstantiated
as they did not have the evidence to back it up. Furthermore, in 2008 they
found themselves falling foul of the regulations once more as they claimed the
iPhone could access the entire Internet. However, they could not use Flash so
this was untrue, and the company was forced into withdrawing the advert.
2. L'Oreal
L'Oreal is another large
company, but it can provide us with a perfect example of how you cannot mislead
people with an advert. In 2011, they had a mascara advert with Penelope Cruz
that the ASA decided could not be shown at all. The problem was that the advert
exaggerated the effect that could be achieved by the mascara, and this was
determined to be misleading. However, they did not learn from the mistake as
another two adverts were pulled from the market as they repeated the same error
with other products. It had been determined that the adverts were not providing
consumers with an accurate representation of what they could achieve as there
were no before and after shots to show the difference.
3. Nestle
Nestle is yet another
company that was forced into making changes to an advert simply because it had
included on the infant formula that it was ethically responsible. This claim
was contested by a campaign group with the complaints being upheld by the ASA
with it stating how it could not accurately prove that this was the case.
Module Summary
As you can see, there are a number of aspects to advertising and the law within
the UK, and it is easy to see how companies can easily break the regulations,
even if they perhaps do not mean to do so at first. However, each advertising
agency is well aware of what the regulations are, and they also know that the
Committee and ASA are watching every move that they make, so it should come as
no surprise for them to discover that there are indeed moments where their adverts
are called into question.
As a consumer, it is also comforting to know that there are indeed bodies out
there that have been established to protect us in this way, and that they can
be approached should there be any concern as to what is in an advert. It means
we are able to make a fair judgement as to whether or not we should then use a
company or purchase a product without any undue pressure being applied to us.
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