Advertising, Marketing & Promotion Comparative Guide

• must not mislead consumers or cause harm or widespread offence; and
• must deal with consumers fairly, with special regard for under-18s.

1.4 Which bodies are responsible for implementing and enforcing the advertising regime in your jurisdiction? What is their general approach in doing so?

The United Kingdom adopts a largely (although not exclusively) self-regulatory approach, with the Advertising Standards Authority (ASA) being the initial arbiter of advertising compliance, enforcing both the CAP and BCAP Codes.

The ASA is a non-statutory organisation and cannot enforce legislation. It cannot impose fines and its primary sanction is negative publicity, but it does have an effective system for working with media owners and social media platforms to ensure that ads are removed from circulation once they have been found to breach the CAP or BCAP Code by the ASA Council. As such, in the limited instances where the ASA's sanctions are ineffective or where there is a gap in the ASA's remit (eg, in relation to claims on packaging), or a serious issue of consumer detriment, government agencies such as the following may intervene:

• the Office of Communications (Ofcom);
• the Medicines Healthcare Regulatory Agency (MHRA);
• the Competition and Markets Authority (CMA); and
• local government trading standards departments.

In most cases, advertisers willingly comply with the self-regulatory system and remove offending ads. This is because the ASA publishes its adjudications on its website on a weekly basis, where they remain accessible for at least five years. New adjudications are often reported on by the media, providing further adverse publicity to offenders.

Ofcom will intervene if a broadcaster breaches the sponsorship or programming codes, and has imposed large fines in the past, payable by the licensed broadcaster rather than by the advertiser.

The MHRA intervenes if medicinal claims are made for products not licensed as medicines.

The CMA can intervene when serious issues of consumer protection arise, such as unsubstantiated environmental claims or misleading price or savings claims. The CMA will generally seek to undertakings in the first instance, but also may bring court proceedings, resulting in fines or even imprisonment.

Local trading standards departments prioritise price advertising to consumers and can issue proceedings at the magistrates court, which has the power to issue unlimited fines and prison sentences.

2 Authorisation and clearance

2.1 Do advertisers need any kind of licence or authorisation in order to operate in your jurisdiction?

There is no general requirement to obtain a licence to advertise. However, in some regulated sectors (eg, medicine, gambling and financial services), a company or a product must be licensed or registered by a regulator before being advertised. Promotions of a medicinal product are permitted only if the product is licensed by:

• the Medicines Healthcare Regulatory Agency;
• the Veterinary Medicines Directorate; or
• the Department of Health.

The advertising of gambling products is permissible under the terms of a Gambling Commission licence.

Anyone offering financial services or products must be authorised by the Financial Conduct Authority or have the financial promotion approved by an authorised body.

Lastly, the advertising of nicotine-containing products is prohibited unless it is licensed as a medicine.

2.2 Do ads require any kind of clearance before they can be released in your jurisdiction?

According to the UK Code of Broadcast Advertising, all ads must be pre-vetted by Clearcast for television or Radiocentre for radio. In practice, ads for video-on-demand platforms are also subject to pre-approval by Clearcast. Advertisers can seek advice from the Committee of Advertising Practice Copy Advice Team in relation to an ad's adherence to the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing. Obtaining approval from Clearcast or Radiocentre or seeking such advice from the Copy Advice Team does not prevent the ASA from investigating and upholding a complaint.

There are several subjects which are covered by further rules or which may require third-party permission. These include:

• identifiable possessions or private dwellings;
• uniforms;
• coins, bank notes and postage stamps;
• the king's image generally, images of other members of the royal family and royal warrants, crests and emblems; and
• identifiable third parties (eg, celebrities).

3 General advertising regime

3.1 What general rules and requirements apply to ads in your jurisdiction?

According to the Advertising Standards Authority (ASA), ads must be "legal, decent, honest and truthful". In practice, this means that they must not be misleading and must be socially responsible. Ads must state significant limitations and qualifications, with the application depending on the product and context. Any disclaimers:

• can clarify the main claim but cannot contradict it; and
• must be expressed clearly and legibly.

There are further requirements regarding the timings of disclaimers.

3.2 What rules and requirements apply to puffery in your jurisdiction?

‘Puffery' or obvious exaggerations that the ‘average consumer' is unlikely to interpret literally are allowed if they are not materially misleading. These include obvious or humorous exaggerations. Puffery does not require substantiation, unless it makes a claim – whether expressly or not – that is capable of substantiation.

The ‘average consumer' is considered to be reasonably well informed, observant and circumspect. If a claim is direct to a particular group of people, such as the elderly or children, a claim will be assessed by reference to an average consumer in the relevant group.

3.3 Under what circumstances must claims in ads be substantiated?

Before publishing an ad, the advertiser must hold evidence to support any advertising claim that an average consumer is likely to consider as capable of objective substantiation. In the absence of adequate substantiation, the ASA is likely to find the claim misleading. There is no blanket standard, but the ASA has published guidance around standards of acceptable evidence, including clinical trials. However, the levels of substantiation required will depend on the product in question – for example, a substantiation for a ‘breakthrough' claim for a cosmetics product will be very high. The ASA's complaint-handling procedure specifies that:

• substantiation should be in English; and
• references to research documents must have relevant sections highlighted.

3.4 What rules and requirements apply to the use of the following? (a) Test results; (b) Survey results and (c) Testimonials.

(a) Test results

If an advertiser claims that a product or service is better than either a named or unnamed competitor, or the best product or service on the market, the claim:

• will be treated as a comparative claim which is capable of objective substantiation; and
• will require sufficient substantiation to comply with the rules on comparative claims.

(b) Survey results

ASA guidance states that headline claims relating to survey results should be accurate and accurately reflect the survey's nature. Sample sizes should be statistically significant and sufficiently representative.

(c) Testimonials

Testimonials must relate to the advertised product or service and advertisers must have evidence of their genuine nature, including the details of the person providing the testimonial. Testimonials must not be misleading. They should not generally be used without permission, with exceptions around accurate statements from published sources. Social media testimonies from celebrities or influencers must make clear whether they are paid for or part of a commercial agreement with an advertiser.

3.5 What rules and requirements apply to the protection of minors?

The Consumer Protection from Unfair Trading Regulations 2008 state that ads must not:

• directly and emphatically urge children to purchase products; or
• encourage children to pester parents to do so.

Both the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (‘CAP Code') and the UK Code of Broadcast Advertising provide considerable further guidance, which includes significant overlap. The codes state that ads must not:

• contain anything that is likely to result in harm to children; or
• take advantage of children's inexperience or sense of loyalty.

There are further product-specific rules, examples of which include alcohol, medicine, nutrition and gambling. Ads for medicine must not be directed at children at all; whereas nutritional ads must not encourage poor nutritional habits or an unhealthy lifestyle. Gambling ads must not:

• be directed at under-18s; or
• include individuals or characters likely to be of strong appeal to those under 18.

There is CAP guidance on how to target ads for age-restricted products.

The Information Commissioner's Office Age-Appropriate Design Code states that ads which are personalised based on profiling or any other data processing should be switched off by default for children. The code:

• requires that only minimal child data be collected; and
• prohibits, by default, the profiling of children.

There are further rules covering aspects such as:

• sexualised imagery;
• child safety;
• credulity;
• unfair pressure;
• promotions; or
• direct exhortation.

3.6 Are certain forms of advertising prohibited in your jurisdiction?

There are 31 blacklisted commercial advertising practices found in the Consumer Protection from Unfair Trading Regulations. These include:

• bait advertising (offering a product or service without disclosing belief that it may not be supplied);
• bait and switch advertising (advertising a product and refusing to sell with the intention of promoting a different product);
• claiming that a product can facilitate winning in a game of chance; and
• claiming that the advertiser's job or livelihood is in jeopardy if the consumer does not buy the product.

There are other, sector-specific prohibitions, not limited to medicine, children, alcohol, gambling and automotives. Ads for medical products endorsed by medical professionals are prohibited if these imply professional advice or recommendation. Ads that encourage children to use pester power are also forbidden. Alcohol advertising which links products to sexual success or showing actors who appear to be under 25 years old are forbidden too. Gambling advertising must not suggest that gambling can be a solution for financial problems; and ads for vehicles must not show cars being driven recklessly or at excessive speed.

There are also some categories of products which it is illegal to advertise, including:

• tobacco products;
• guns and offensive weapons;
• prostitution services; and
• pyramid selling schemes.

4 Misleading advertising

4.1 On what grounds will an ad be found to be misleading in your jurisdiction? How does the process unfold?

An ad will be found to be misleading if it:

• omits or hides material information; or
• presents material information in an unclear, unintelligible, ambiguous or untimely manner.

Advertisers should not omit material information that consumers require to make informed decisions. ‘Material information' includes:

• the main characteristics of the product;
• the identity and address of the advertiser or trader;
• the price, including taxes;
• delivery costs;
• complaint handling; and
• cancellation rights.

An ad in question will be looked at as a whole and based on its likely effect on consumers and not the advertiser's intentions.

In most cases, the process is initiated:

• by the submission of a complaint to the Advertising Standards Authority (ASA) by:
• • a consumer;
  • a competitor;
  • a pressure group; or
  • a consumer organisation; or
• increasingly, by the ASA starting an investigation after using its own artificial intelligence tools to find suspect ads.

The advertiser is given the opportunity to present its defence in writing. The ASA executive then prepares a draft recommendation stating whether the complaint should be upheld or not upheld. The ASA Council then decides whether to follow the draft recommendation and produces its final adjudication, which is published by the ASA on its website. If the complaint is upheld, the ad should be withdrawn as soon as possible after the advertiser has been notified of the council's decision.

Far less frequently, a criminal prosecution may be launched by a local trading standards department, which could ultimately lead to a criminal conviction and the imposition of fines, as well as an order to pay for the costs of prosecution.

It is also possible that the Competition and Markets Authority may launch an investigation into a particular practice, such as a failure by influencers to disclose that their posts are advertising. This may result in a prosecution but will often result in undertakings being obtained in the first instance which will require the individual or advertiser to comply with the law in future.

4.2 If an ad is found to be misleading, what are the consequences for the advertiser?

Misleading ads are most likely to be investigated by the ASA, rather than be subject to criminal action. If the ASA rules that an ad is misleading, it will publish details of the adjudication on its website, where a record will be kept for five years. This adjudication will also direct the advertiser to refrain publishing the ad in its current form in the future. Failure to comply with the adjudication can lead to further consequences, including:

• the imposition of pre-publication vetting;
• the withholding of media space;
• the cancellation of a broadcasting licence by the Office of Communications; or
• referral to trading standards for a criminal prosecution.

In more serious cases, advertisers can be prosecuted, as described in question 4.1, leading to fines and liability for the prosecution costs.

4.3 Can the advertiser appeal the decision? If so, what is the process for doing so?

Advertisers can request a review of an ASA ruling by the independent reviewer within 21 days of the ruling. A request can be made as long as the appellant shows that:

• there was a substantial flaw of the process or the ruling; or
• additional evidence is available.

The independent reviewer can ask the ASA Council to reconsider its ruling, rather than changing the decision itself. The ASA will then reconsider its original ruling, which may:

• stay the same, with or without changes to the wording of the adjudication; or
• reverse the ruling.

Thereafter, the advertiser's only option is to apply to the High Court for a judicial review of the ASA's decision. This is expensive and the threshold for a successful application is very high.

5 Specific advertising regimes

5.1 What rules and requirements apply to the following types of advertising in your jurisdiction, and what best practices should be considered in each case? (a) Comparative advertising; (b) Promotional marketing (eg, competitions, lotteries and sweepstakes); (c) Interest-based advertising (ie, tailored advertising based on data collected from internet browsing); (d) Native advertising; (e) Influencer advertising; (f) Ambush marketing; (g) Country-of-origin marketing; and (h) Green marketing.

(a) Comparative advertising

The Business Protection from Misleading Marketing Regulations 2008 govern comparative advertising (in both business-to-business and business-to-consumer advertising). Under these rules, comparative advertising is permitted only if it meets the following criteria:

• It is not misleading;
• It compares goods or services which meet the same need or are intended for the same purpose;
• It objectively compares one or more features of those goods and services which are material, verifiable and representative (which may include price);
• It does not discredit, denigrate or take unfair advantage of the trademarks, trade names, other distinguishing marks, goods, services, activities or circumstances of the competitor;
• It does not take unfair advantage of the designation of origin of the competitor; and
• It does not create confusion between the goods or services, trademarks or trade names of the advertiser and competitor, or between these entities themselves.

The above points should be considered when devising a comparative ad. For example:

• check the accuracy of the data and statistics you use;
• ensure that it is clear who the advertiser is; and
• avoid ‘puffery' which might be considered to be taking advantage of a competitor's reputation.

Be aware that if you use the trademark of a competitor beyond what is permissible to legitimately compare the two goods or services, the competitor may have a claim for trademark infringement against you – or even claims for trade libel, copyright infringement, passing off and/or defamation.

Complaints about comparative advertising are often submitted to the Advertising Standards Authority (ASA), which applies principles equivalent to those set out above.

(b) Promotional marketing, such as competitions, lotteries, and sweepstakes

The main legislation governing promotional marketing includes:

• the Gambling Act 2005;
• the Consumer Protection from Unfair Trading Regulations 2008 (CPRs);
• the Consumer Rights Act 2015;
• the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (‘CAP Code') and the UK Code of Broadcast Advertising (‘BCAP Code'); and
• the UK General Data Protection Regulation (GDPR).

Specifically, lotteries are governed by the Gambling Act and are illegal if they do not operate under a licence, so it is important to ensure that your promotional marketing or brand activation is either a competition or a free prize draw, if there is a prize element to it:

• Competitions must involve a significant element of skill; otherwise, they may be caught by the Gambling Act if the competition involves relying on chance and is therefore akin to betting.
• Prize draws need only involve a contribution of a normal rate post or telephone call, and the chance of success must be equal for all. Prize draws can also be entered into following the purchase of a product, provided that this product is not more expensive (or smaller) than normal as part of the promotion.

The CPRs state that:

• the prizes/products should be as described (or a reasonable equivalent) and not misleading; and
• a competition should also not create a misleading impression that simply by doing a particular act (eg, making a premium-rate phone call), the consumer will win a prize.

The CPRs also make it illegal to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent.

Section 17 of the CAP Code and Section 18 of the BCAP Code govern lotteries. For example, specific rules include the following:

• Section 17.2: Marketing communications must not suggest that participating in a lottery can provide an escape from personal, professional or educational problems such as loneliness or depression.
• Section 17.3: Marketing communications must not suggest that participating in a lottery can be a solution to financial concerns, an alternative to employment or a way to achieve financial security. Advertisers may, however, refer to other benefits of winning a prize.

Other detailed provisions apply, including requirements:

• not to feature anyone who is or appears to be under the age of 25 in ads; and
• usually, to award prizes within 30 days.

As entrants to promotions will need to provide personal data, the UK GDPR will also apply.

(c) Interest-based advertising (ie, tailored advertising based on data collected from internet browsing)

This is also known as ‘online behavioural advertising', where a site gathers information about the consumer through the searches they conduct, the web pages they visit and the content they view. This is covered by the UK GDPR and the Data Protection Act 2018, as it involves the collection of personal data.

(d) Native advertising

Native advertising matches the look, feel and function of the media format in which it appears and looks like part of the editorial flow of the page. A common form of native advertising is the advertorial or sponsored content – an article that reviews a product or service that was created and/or paid for by the company marketing the product or service. It can also appear in news feeds on social media or as content recommendations. It must be clear that the ad is a marketing communication. This can be done by labelling it ‘Advertisement feature'. Native advertising that misleadingly fails to disclose that it is advertising may breach the CAP Code and may even be illegal under the CPRs.

(e) Influencer advertising

The ASA, together with the Competition and Markets Authority (CMA), has published joint guidance for influencers, which not only is a best-practice guide for influencers but is also useful for brands and agencies. The key rule of the guidance is that "it needs to be clear that ads are ads". Posts by influencers must clearly identify the commercial relationship between the influencers and the brand being advertised. The best way to comply with this is by using ‘#ad' or ‘#advert' in the relevant post. The ASA advises against using ‘Supported by' or ‘affiliate', or just tagging the brand in the content of the post. The ASA also started naming influencers in 2021 that failed to comply with these rules and even started taking out ads against influencers in 2022.

The CMA also issued its own guidance in 2022 for social media platforms, influencers and brands. Guidance for brands includes:

• checking posts to ensure they are properly labelled as ads; and
• taking action if they are not.

Influencer advertising is also governed by the CPRs, which prohibit unfair commercial practices which would include where influencers:

• falsely represent themselves as consumers; or
• are not acting for the purposes related to their business.

(f) Ambush marketing

There are no specific laws to protect against ambush marketing (except for the Olympic and Commonwealth Games examples below). However, trademarks, copyright, design rights and passing off can be relied upon.

The United Kingdom also enacted specific legislation in relation to the London 2012 Olympic Games and the 2022 Birmingham Commonwealth Games which included:

• ‘clean venue' requirements;
• restrictions on street trading; and
• restrictions on ads on public and private land accessible by the public in the event zones.

In addition, all the normal standards from the CAP and BCAP Codes requiring that ads not be misleading still apply.

(g) Country-of-origin marketing

In September 2021, the Committee of Advertising Practice published guidance on country-of-origin claims, which includes the following advice:

• Be cautious if you are presenting yourself as a UK company if this is not the case;
• Consider the use of national flags and emblems (as the implication is that the products are manufactured/distributed etc by a company in that jurisdiction and could be considered misleading if not); and
• Ensure that permission is granted from the Lord Chamberlain's Office if you wish to use the royal arms or emblems.

Comparative advertising claims can also come into play here – advertisers must not take advantage of the designation of origin of a competing product and should only compare products with the same designation. The advertiser must also disclose the geographical origin of the product.

(h) Green marketing

Section 11 of the CAP Code and Section 9 of the BCAP code apply specifically to environmental claims. The key takeaway is that environmental or ‘green' claims require a high level of substantiation based on the full lifecycle of the product, including:

• ensuring that the basis of any comparison that the product is ‘greener' than competing products is justifiable and clear; and
• not suggesting that ‘green' claims are universally accepted if a significant division of scientific opinion exists.

The ASA issued updated guidance in June 2023 about misleading environmental claims and the rationale behind its recent decisions against numerous companies for greenwashing. It suggests that:

• potentially misleading claims can include where imagery creates the impression of a greater reduction in greenhouse gases than can be substantiated; and
• strategies and plans behind aspirational claims should be available to consumers.

It has also issued guidance on ‘green disposal' claims, covering issues such as recycling.

The CMA has also issued guidance and is investigating certain sectors and companies for greenwashing – including the consumer goods, energy and fashion sectors – which could potentially give rise to breaches of the CPRs.

6 Direct marketing

6.1 What rules and requirements apply to the following types of direct marketing in your jurisdiction, and what best practices should be considered in each case? (a) Telemarketing; (b) Email marketing; (c) Direct mailings; and (d) Opt-out marketing.

(a) Telemarketing

Before conducting telephone marketing via live calls, ensure that the consumer has not opted out already by checking:

• the Telephone Preference Service (TPS) – for individuals, sole traders, non-limited partnerships and users of public electronic communications services;
• the Corporate Preference Service (CTPS) – for businesses; and
• any internal ‘do not contact' lists.

The Office of Communications also has rules for telecoms providers, following the launch of a consultation in April 2023 on the introduction of calling-line identification authentication – this would require the network originating the call to confirm the validity of the caller's telephone number before passing it to the network of the person receiving the call. Under the rules, the marketer must:

• state the identity of the caller.
• state the phone number; and
• provide a contact address or number if asked.

The UK General Data Protection Regulation and the Privacy and Electronic Communications (EC Directive) Regulations 2003 also apply insofar as any data processing is involved. This includes providing a privacy notice to explain what personal data will be used for.

The marketing itself must also comply with any applicable rules and regulations (eg, the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing).

(b) Email marketing

The same rules apply. The marketer must ensure that it has the consumer's specific consent to receive email marketing via email unless a soft opt-in can be used (which is where the trader is marketing products to similar contacts and they were given the option to opt out).

(c) Direct mailings

Marketers should check the Mail Preference Service to ensure that the individual has not opted out of receiving direct mailings by registering here.

(d) Opt-out marketing

Marketing by post can be carried out on an opt-out basis.

7 Indirect marketing

7.1 What rules and requirements apply to the following types of marketing in your jurisdiction, and what best practices should be considered in each case? (a) Product placement; (b) Sponsorship; and (c) Loyalty programmes.

(a) Product placement

Product placement is regulated by the Office of Communications (Ofcom) and must be identified with the ‘P' logo. It is permitted in certain circumstances, including in films, sports programmes and light entertainment programmes. The logo must be shown at the beginning and end of the programme and after an advertising break; and any sponsorship must be clearly credited and kept distinct from advertising.

There are some categories of programmes where product placement is prohibited, including:

• children's programmes;
• news and current affairs programmes;
• religious programmes; and
• consumer affairs programmes.

There are some categories of products which are also prohibited from product placement, including:

• alcoholic drinks;
• foods or drinks that are high in fat, salt or sugar;
• gambling;
• infant and follow-on formula;
• cigarettes and tobacco products – including electronic cigarettes, cigarette lighters, cigarette papers and pipes for smoking; and
• medicinal products.

(b) Sponsorship

Sponsorship is covered by:

• the Consumer Protection from Unfair Trading Regulations 2008; and
• the UK General Data Protection Regulation.

This bans practices which:

• are claimed to be approved, endorsed or authorised by a sponsor when this is not the case; or
• lie outside the terms of the sponsorship arrangement.

The Ofcom Code also applies and states that:

• it must be clearly identified when television programmes are sponsored; and
• the identity of the sponsor must be credited.

Also, laws specific to ambush marketing (see question 5.1(f)) and any specific sectors (see question 8) will also be relevant.

(c) Loyalty programmes

There are no specific rules on loyalty programmes, although the usual UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing rules will apply to their advertising and administration. In particular, they must be legal, honest, decent and truthful. The Competition and Markets Authority (CMA) has been carrying out a study of groceries pricing, including special prices for loyalty card holders, so marketers of loyalty card holders should keep an eye on the CMA's activities in this area.

8 Industry-specific regimes

8.1 What regulatory regimes apply to advertising in the following industries in your jurisdiction, and what best practices would you highlight? (a) Gambling (including lotteries); (b) Alcohol; (c) Tobacco; (d) E-cigarettes; (e) Pharmaceuticals (prescription and over-the-counter); (f) Therapeutic products (ie, products which claim to have health benefits but which are not medicines or pharmaceuticals, such as vitamin supplements); (g) Food; and (h) Financial products and services.

(a) Gambling (including lotteries)

Betting, gaming and lotteries are governed by the Gambling Act 2005 and are illegal if the operator does not have a licence. The UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (‘CAP Code') and the UK Code of Broadcast Advertising (‘BCAP Code') also apply to the marketing communications of the National Lottery and ‘large' society lotteries which are licensed and regulated by the Gambling Commission. The rules include ensuring marketing communications do not suggest that participating in a lottery can:

• provide an escape from personal problems such as loneliness or depression; or
• be a solution to financial concerns.

The Gambling (Licensing and Advertising) Act 2014 prohibits the advertising of gambling to consumers without a licence from the Gambling Commission. In addition, the CAP and BCAP Code Rules require advertisers to ensure the ads do not:

• portray, condone or encourage gambling behaviour that is socially irresponsible or could lead to financial, social or emotional harm; and
• suggest that participating in a gambling can be a solution to financial concerns.

Gambling ads must not have strong appeal to children. This includes a prohibition on the use of celebrities who are likely to have a strong appeal to the under-18s in gambling ads and is a particular issue when using sports stars (and former sports stars) in ads for sports betting.

In practice, most prize draws and sweepstakes either:

• are free to enter (as described above); or
• have an alternative free entry route.

(b) Alcohol

Rules on alcohol are governed by the CAP and BCAP Codes. Drinks that contain at least 0.5% alcohol are considered ‘alcoholic' under the codes. There are also specific rules on:

• alcohol-free drinks;
• low-alcohol drinks;
• health claims for alcoholic drinks; and
• country of origin claims.

Product placement is also prohibited in respect of alcoholic products. In summary, ads must not:

• encourage people to drink excessively;
• suggest that drinking can overcome problems;
• use models that are or look under 25 years old;
• reflect the culture of people under the age of 18;
• be targeted at people under the age of 18;
• show alcohol being consumed or linked to activities or locations where drinking would be unwise or in a working environment; or
• use people or characters with a strong appeal to under 18s in broadcast ads or with a particular appeal to under-18s in non-broadcast ads.

(c) Tobacco

All forms of tobacco advertising are prohibited under the Tobacco Advertising and Promotion Act 2002 and any person that publishes a tobacco ad in the United Kingdom will be guilty of a criminal offence.

The prohibition is also reflected in the CAP and BCAP Codes. This includes all tobacco products and non-tobacco products which share a name, emblem or other feature with a tobacco product, rolling papers and filters. Product placement is also prohibited in respect of tobacco products. The BCAP Code also does not allow for the advertising of rolling papers and filters, but this is allowed under the CAP Code if it does not "encourage people to start smoking" or to smoke more.

(d) E-cigarettes

E-cigarette advertising is allowed under strict conditions. There are specific rules under the CAP and BCAP Codes. For example:

• the marketing communication must make it clear that the product is an e-cigarette and not a tobacco product; and
• health professionals should not be used to endorse electronic cigarettes.

Product placement is prohibited in respect of e-cigarettes.

The UK government has indicated that it intends to legislate in this area.

(e) Pharmaceuticals (prescription and over-the-counter medicines)

All medicines must comply with the Human Medicines Regulations 2012 and any authorisations/certificates/licences/registrations. This includes having a licence from the Medicines Healthcare Regulatory Agency (MHRA) before being marketed. The MHRA has powers to enforce compliance if claims are made for unlicensed medicines. It is strongly advised that legal advice be taken before marketing medicinal devices and products.

Over-the-counter medicines can be advertised directly to consumers but extensive rules and requirements apply. Prescription medicines are more heavily regulated and can be advertised directly only to medical professionals. All forms of advertising to children are prohibited.

Rule 12 of the CAP Code and Rule 11 of the BCAP Code apply, and provide that:

• any objective claims must be backed by evidence; and
• marketers should not falsely claim that a product can "cure illness, dysfunction or malformations".

Advertising for medicines cannot be directed at children. Marketing communications should also encourage the uptake of medical advice before consumers commit to significant treatments.

(f) Therapeutic products (ie, products such as vitamin supplements but which are not medicines or pharmaceuticals)

The Food Safety Act 1990 prohibits misleading advertising in relation to food; and the Regulation on Health and Nutritional Claims (1924/2006) restricts nutrition and health claims to those which appear on the register of permitted claims. The CAP and BCAP Codes also apply and prohibit:

• references to a certain amount of weight loss;
• claims that a food prevents, treats or cures a disease; and
• references to the recommendation of an individual health professional.

Documentary evidence is also required to substantiate claims.

Some products may be caught by the definition of ‘medicine' because of any claims (eg, to prevent or treat an illness), so care should be taken not to fall into this category as the rules on medicines are more stringent.

(g) Food

Food advertising is also governed by the Food Safety Act 1990 and the Regulation on Health and Nutritional Claims (1924/2006). Any claims about health and nutrition must be substantiated with documentary evidence. The CAP and BCAP Codes also apply, and provide that marketing communications must not:

• encourage the excessive consumption of a food; or
• imply that health could be affected by not consuming a food.

There are more stringent rules about the advertising of foods which are high in fat, sugar or salt (HFSS) or drinks – particularly to children under the age of 16 – under the CAP and BCAP Codes. There are also rules about where such products can be displayed in ‘bricks and mortar' stores and in online retail (eg, not on aisles or on homepages).

More stringent legal restrictions mean that ads for such products are due to be banned on television and in paid-for online advertising, although the restrictions have been delayed until 1 January 2025. The government has also delayed the introduction of new rules on multi-buy deals on HFSS foods, which will now come into effect on 1 October 2025 (instead of 1 January 2023).

Product placement for HFSS foods is also prohibited.

(h) Financial products and services

The Financial Conduct Authority (FCA) regulates the advertising of financial products. Section 14 of the CAP and BCAP Codes applies to products that are not regulated by the FCA. The BCAP Code provides that ads should not require specialist knowledge; and the CAP Code requires financial products to be set out in a way that means the audience can understand them. Marketers should not take advantage of the financial inexperience of any consumers.

Cryptocurrencies are regulated with effect from October 2023, which means that they must be promoted only to people with the requisite knowledge and experience to invest in crypto. Marketers of crypto must also:

• put in place clear risk warnings; and
• ensure that ads are clear, fair and not misleading.

Advertisers must also comply with the general CAP Code rules about misleading advertising and socially responsible advertising.

The FCA has also introduced a new regulatory gateway (under the Financial Services and Markets Act 2023) to provide greater oversight of the approval of financial promotions. Companies that approve financial promotions for third parties will need to consider whether they need to apply to be included in the gateway or whether their activities are exempt.

9 Enforcement

9.1 On what grounds can the following parties take action against ads in your jurisdiction? (a) Competitors; (b) Consumer associations; and (c) Members of the public.

(a) Competitors

There are no specific grounds upon which competitors can take action against ads. The Advertising Standards Authority (ASA) requires that a competitor undertake an inter-party resolution and will not act until it is satisfied that an attempt has been made. This means that a competitor should, in the first instance, raise its concerns directly with the party complained about and allow five working days for a substantive response. A copy of the correspondence and any substantive response should be sent to the advertiser. Once the ASA gets involved, it will conduct its usual investigatory process.

If a competitor is named in an ad, this may give rise to trademark infringement. Claims for copyright infringement or passing off may also arise; as may claims for ‘malicious falsehood', even if the claimant is not named expressly but is identifiable by implication. A successful claim may entitle the claimant to:

• damages or an account of profits; or
• an order to cease and desist from the relevant advertising.

(b) Consumer associations

There are no specific grounds upon which consumers can take action against ads. Consumer associations, as a group with an obvious interest, can complain by filling out an online form on the ASA's website. Consumer associations that are non-public complainants will also need to:

• provide grounds for the complaint;
• agree to identity disclosure; and
• confirm that they are not engaged in simultaneous legal action.

(c) Members of the public

Alongside the right to complain to the ASA and various regulators, members of the public, in their capacity as consumers, may also have a right of action against traders under the Consumer Protection from Unfair Trading Regulations (CPRs). The CPRs enable consumers to issue action for misleading or aggressive trading practices. Potential remedies include:

• the right to unwind the contract; and
• the right to a discount or damages.

9.2 What mechanisms are available to them to do so, and what are the pros and cons of each?

Court action can be slow and expensive, and comes with the risk that the loser must pay the winner's legal costs, so an unsuccessful claim can be costly. The ASA can be more nimble than other regulators or the courts, with decisions typically coming in approximately three to six months, with much less expense and no costs risk if the claim fails.

9.3 How does the procedure typically unfold and how long does it take?

The ASA's Complaint Handling Procedures state that its target duration for informal investigations is:

• 35 working days (which results in an advertiser voluntarily agreeing to withdraw or amend its ad); and
• 115 working days for formal investigations, which is reduced to 60 working days if the complaint relates to harm and offence.

If the ASA pursues a formal investigation, the ASA Council will rule on a case and publish its ruling within 14 days of its decision. The decision will remain published on the ASA's website for a period of at least five years from publication, although this can be indefinite if the adjudication is referenced in a guidance note published by the Committee of Advertising Practice or the ASA.

9.4 What costs are incurred?

There are no costs for the complainant to complain to the ASA. A private legal action will incur both legal costs and court costs. The general principle in English law is that the loser pays the winner's costs, although the winner is unlikely to recover all of its costs from the loser. If a company is prosecuted successfully by the regulatory authorities, it will usually be ordered to pay a contribution to the prosecution costs, as well as any fines that might be imposed. If a settlement is reached with the prosecution, this will often be on the basis of the payment of an administrative ‘fine' as well as a contribution towards costs.

9.5 What defences are typically raised by the advertiser?

Most complaints investigated by the ASA concern some form of misleadingness, including but not limited to green claims. The key defence will therefore involve the advertiser substantiating its claims. In other sector-specific cases, the defence will depend upon the specific issue raised in the complaint – for example, showing that:

• alcohol has not been portrayed as being essential to the success of a social occasion; or
• a particular spokesperson is not of strong appeal to the under-18s in a gambling ad.

It is often crucial to:

• find previous ASA adjudications that support the advertiser's argument; and
• distinguish previous decisions which are unhelpful to the advertiser's position.

Advertisers may try to claim that their ad is out of scope for the ASA – for example, because it appears on a website or social media platform controlled from outside the United Kingdom and is not directed at or promoted to UK consumers. However, this is becoming increasingly difficult.

In addition, advertisers may claim that they were not targeting an ad at the under-18s, for example. This will be considered on a case-by-case basis. In a previous case, the ASA held that an advertiser had taken reasonable steps to target age-restricted items correctly, so this can be a valid defence for those types of complaints (assuming that the targeting is sound).

9.6 What remedies are available?

If the ASA believes that a possible breach can be dealt with without an investigation, it may issue an ‘advice notice'. The notice explains issues and provides compliance guidance without any follow-up from the advertiser.

The ASA can resolve a complaint through an informal investigation if:

• it appears reasonable and proportionate; and
• the advertiser agrees to amend or withdraw its ad before a formal investigation is commenced.

An ‘informal resolution' means that the advertiser avoids the reputational damage arising from a published adjudication, However, the advertiser may prefer to try to convince the ASA Council that the complaint should not be upheld, thereby maintaining its ability to continue to use the same and similar claims in future.

Alternatively, the ASA may pursue a formal investigation. The ASA executive will produce a draft recommendation for the ASA Council recommending that the complaint be upheld or not upheld, in full or in part, The council is free to reach its own conclusion and will not necessarily adopt the draft recommendation, although it usually does. If the council upholds the complaint, the ASA will communicate the necessary remedial action to the advertiser, which include:

• making changes before re-publishing the ad or claim; or
• ceasing publication altogether.

If the advertiser fails to adhere to the remedial action, the ASA may refer the complaint to:

• National Trading Standards;
• the Competition and Markets Authority; or
• another regulator.

Remedies include:

• cautions or compliance notes;
• requests for broadcast corrections;
• undertakings;
• civil enforcement orders;
• criminal prosecution; and
• fines.

9.7 Can the decision be appealed? If so, what is the process for doing so?

In the case of an ASA adjudication, advertisers can appeal a decision by requesting a review of their ruling by the independent reviewer of the ASA. This request must be made within 21 days of the ruling and requires:

• showing a substantial flaw within the process or the ruling; or
• submitting additional evidence.

The independent reviewer can request the ASA Council to reconsider its ruling.

Court decisions can be appealed, subject to obtaining the court's permission first.

10 Trends and predictions

10.1 How would you describe the current advertising landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

Recent focus areas of advertising regulators in the United Kingdom include:

• gambling, particularly when it may appeal to children;
• crypto-assets;
• influencers, and in particular the identification of social media posts as ads;
• the use of generative artificial intelligence (AI) in advertising;
• scam ads; and
• gender stereotyping.

Environmental advertising and greenwashing have also become issues of special interest for both the Advertising Standards Authority and the Competition and Markets Authority.

Key developments to watch out for over the next 12 months are likely to include:

• scam and fraudulent advertising;
• possible further restrictions on the marketing of vapes;
• new rules on advertising financial services products; and
• further use (and abuse) of generative AI in advertising.

In addition, changes to consumer law introduced by the Digital Markets, Competition and Consumers Bill will have an impact on advertisers, such as:

• disclosures about subscription arrangements;
• pricing; and
• dealing with fake reviews.

The new law also introduces provisions for higher fines and administrative payments and is likely to herald an uptick in enforcement.

11 Tips and traps

11.1 What are your top tips for companies that advertise their products and services in your jurisdiction and what potential sticking points would you highlight?

Substantiation is the key to advertising compliance. Whether dealing with straightforward claims about your own products or services or making comparative claims or environmental claims, it is essential to ensure robust substantiation for all claims before they are published.

It is also important to ensure that your claims fit the product. Claims must be precise and broad-brush claims are likely to lead to trouble, particularly in the field of environmental advertising.

The Advertising Standards Authority is increasingly citing the requirement for advertisers to be socially responsible in relation to everything from environmental ads to ads for gambling or alcoholic beverages and gender stereotyping. Another issue which often leads to problems is targeting ads for age-restricted products: target audiences must be carefully defined.

It is also important to consider the sector-specific rules that apply in many areas, including automotive, cosmetics, financial services, gambling, alcohol and food and drink, among many others.

Finally, remember that while advertising law and regulation can sometimes be consistent across different countries in certain respects, it can also vary significantly in others. It is therefore dangerous to assume that what will be acceptable in one country will also be acceptable in another; and it is important to obtain local advice from a lawyer qualified in that jurisdiction and with the appropriate expertise in advertising law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.