Advertising and marketing | UK Regulatory Outlook February 2024

EU Parliament and Council formally adopt their positions on directive to empower consumers for the green transition

The European Parliament has formally adopted a legislative resolution for a directive "empowering consumers for the green transition" at first reading. Following this, the Council of the EU has given its final approval for the directive. It will then be published in the Official Journal of the EU and will be subject to a transposition period of 24 months after it comes into force, to allow Member States to implement the changes.

The new directive will amend the Unfair Commercial Practices Directive and the Consumer Rights Directive to add new blacklisted offences related to greenwashing and the early obsolescence of goods and impose new information requirements regarding their sustainability (see more in the Products section).

It is designed to work together with the green claims directive which has recently been adopted by the Parliament's Internal Market and Environment committees and awaits the Parliament's vote at first reading.

EU Commission publishes the outcome of its influencer marketing 'sweep'

The EU Commission has published the results of its screening of social media posts from influencers. This "sweep" of influencer marketing content was conducted in cooperation with the Consumer Protection Cooperation (CPC) Network. See this Regulatory Outlook for background.

The sweep has found that non-compliance with existing advertising and consumer protection rules was rife. In particular, it concluded 80 per cent of influencers did not consistently communicate the content was advertising when they published commercial content. Even when such disclosures were present, they were often not visible during the entire communication and the influencers did not make use of existing platform labels, preferring to use more ambiguous disclosures such as "collaboration" or similar.

The sweep also concluded that influencers routinely acted as traders who advertised and sold their own products. However they were often not compliant with mandatory rules in this area. For example, 60 per cent did not consistently disclose that this material was advertising nor did they provide mandatory information, such as their contact details, in the event there was an issue with the product.

The results of the sweep will feed into the Commission's ongoing digital fairness fitness check of EU consumer law.  In the interim, it has also set up a influencer legal hub to inform influencers of their obligations under the legislation.

ASA designated as regulator of online advertising of less healthy food and drink products

Using its powers under the Communications Act 2003, Ofcom has designated the Advertising Standards Authority (ASA) as a co-regulator for the online advertising of less healthy food and drink products until 31 October 2034. Under Ofcom's designation, the ASA will assess and determine whether an advertiser is in breach of the requirements in the 2003 Act in the first instance and publish guidance setting out how it intends to do this.

See this Insight for more HFSS updates.

CAP issues enforcement notice to non-UK based cosmetic surgery providers

The Committee for Advertising Practice (CAP) has issued an enforcement notice to non-UK based cosmetic surgery providers that advertise their services to UK consumers. This follows a number of enforcement actions by the ASA against ads which breached the UK advertising rules by: (i) failing to make potential risks of cosmetic surgery clear; (ii) trivialising the decision to undergo surgery; (iii) making misleading claims around safety; and (iv) making misleading claims about the credentials of doctors.

In its enforcement notice, CAP provides guidance on how marketers can ensure that their ads for cosmetic surgery abroad comply with the CAP Code. CAP has also set a deadline of 29 February 2024 for advertisers to ensure that their ads are compliant. After this, CAP intends to take targeted enforcement action to ensure consistent standards across the industry. CAP has also begun enhanced monitoring to identify and tackle irresponsible ads for cosmetic surgery procedures, using its Active Ad Monitoring system.

UK government's response to report on risks to sport and culture of NFTs and blockchain

See Consumer law.