TALKING SHOP
Advertising: What Are The Rules? Adam Bernstein
I
f people don’t know you exist they’ll not beat a path to your door. Great if you’re a criminal, not so great if you’re a businesses trying to overcome a poor economy. Whilst word of mouth might help your business tick over, it’s not going to set it alight – you need to advertise and there are rules to follow. The rules on advertising are set down in two codes of practice
written by the Committees of Advertising Practice that cover both broadcast and non-broadcast media and which is policed by the Advertising Standards Authority. Until recently, the ASA only had a remit to cover print media. However, from 1 March 2011, the ASA was given powers to oversee digital media including the internet and social media. Businesses do need to tread carefully when advertising or making claims as the Consumer Protection Regulations 2008 banned 31 ‘unfair’ practices. The CPRs are aimed at all businesses, irrespective of size, and has given the regulators apart from the ASA - the Office of Fair Trading and local trading standards offices and for broadcasters, Ofcom – teeth. The system we have hails back to 1961 when the Advertising
Association created the Committee of Advertising Practice to produce a code of practice for advertisers. The CAP Codes as they are known – CAP for print media and BCAP for the broadcasters – were to be, and indeed are, adjudicated on by a non Governmental body, the Advertising Standards Authority. It can impose sanctions or refer a trader on for possible prosecution.
The CAP Code It is the 12th edition of the code – ‘UK Code of Non-broadcast
Advertising, Sales Promotion and Direct Marketing’ - that extended the remit to cover digital media from 1 March 2011. The code only deals with non-broadcast media and it’s this that we’re concerned with here. The Code covers not only the content of an advertisement, but
also the running of sales promotions, giving of promotional items, timely delivery of items ordered and the use of personal data collected from an advertisement. The Code doesn’t replace the law, it’s designed to supplement it and by definition, it doesn’t preclude anyone or any body from going to law.
Who and what is covered? The Code covers print including newspapers, magazines,
leaflets, catalogues, posters and promotional media in public spaces, marketing material and advertorials. From March 2011, it also covers online media including email,
SMS texts, fax, paid for web space, banners, paid for listings, price comparison sites, classified adverts and adverts sent by Bluetooth. Interestingly, the Code defines a ‘consumer’ as anyone who privately, or in business, that can see the material.
Principles The basic principle for advertising is that it should be ‘legal,
decent, honest and truthful’; it should reflect the spirit not just the letter of the law. Further, the Code requires that advertising and marketing communications, especially anything that is unsolicited, should be identifiable as such without the need to open the communication. Allied to this, advertorials must be highlighted as ‘advertisement features’.
Don’t Mislead Section 3 goes to the core of what businesses can and cannot do when advertising. Fundamentally, the ASA uses not only the CAP Code, but also the Consumer Protection from Unfair Trading Regulations 2008 when adjudicating on consumer complaints. The CPRs ban 31 trading practices on the basis that they are unfair and alter the consumer’s buying process. In essence, the rules state that an advert must not mislead;
overly exaggerate; omit important information; mis-describe the price, characteristics or delivery arrangements for a product; mislead over the identity or address of the trader; or mislead over a consumers right to cancel the sale. Any claims that are made – say a product’s properties or
usefulness - need to be substantiated. Unsubstantiated claims that end up before the ASA for adjudication may well be regarded as misleading. Similarly, if there are any limitations to a product, they need to be detailed. Whilst some exaggeration is allowed, an advert must not detail a
consumer’s legal right as an attribute of the product – for example, a year’s warranty. Misleading comparisons with another product or trader are
banned; only like for like comparisons are permitted and they should be objective. Likewise, price comparisons must be linked to the price at which an item is generally sold.
Pricing By definition, the description of pricing needs to be accurate
and take into account the Department for Business Innovation & Skills ‘Pricing Practices Guide’ - see
http://www.berr.gov.uk/files/file46254.pdf. Pricing must not mislead by omission and must include
anything – such as taxes and duties – that consumers have to pay. VAT exclusive prices can only be used if the consumer can recover VAT. Additionally, all delivery charges need to be detailed in advance and if they cannot, the advert needs to state that delivery is excluded as well as how it’s calculated. At the same time, if a price depends on the purchase of another product, the advert needs to offer detail of the purchases that are also required.
38 • FOOTWEAR TODAY • J AY ARY 2012 MANU2011
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