Advertising and marketing | UK Regulatory Outlook January 2024

Greenwashing

Greenwashing can be expected to appear this year among offences blacklisted in the UK. The proposal to add misleading environmental claims to a list of banned practices emerged in the Competition and Markets Authority's (CMA) response in October 2023 to the UK government's consultation on a range of consumer protection matters and in light of the UK Digital Markets, Competition and Consumers Bill. (See more in Consumer section.)

Last year, there were various enforcement and regulatory actions both in the UK and EU in relation to greenwashing.

In the UK, the CMA launched its second market investigation into greenwashing claims, looking specifically at consumer goods (including food, drink, toiletries, cleaning products and personal care items). The Committee of Advertising Practice (CAP) and Broadcast Committee of Advertising Practice (BCAP) provided a number of updates to their green claims advertising guidance (see here and here).

The most recent update includes new guidance on the use of green disposal claims. This follows the Advertising Standards Authority's (ASA) report on the outcome of its consumer research into the use of advertising claims relating to the green disposal of products relating to recyclability, biodegradability or composability.

Examples in the EU include the European Commission's proposal for a Green Claims Directive and the provisional agreement on a directive to empower consumers for the green transition reached by the Council of the European Union and Parliament.

UK Online Advertising Programme

The UK government published its response to the Online Advertising Programme in July 2023. (See our previous Regulatory Outlook for more information.) The government indicated that further consultations on the proposals outlined in its response to bring forward the respective legislation are expected "when parliamentary time allows". 

However, the draft legislation relating to the Online Advertising Programme may not emerge until 2025.

'Dark patterns'

"Dark patterns" continue to be an area of focus and activity for the EU, the UK and more widely.

The EU Parliament has published a paper on the issues around addictive design and focus on endless scrolling, autoplay and temporary availability. (See previous Regulatory Outlook for more.)

The EU "fitness check" of consumer law is focusing on the lack of enforcement in relation to dark patterns and also their impact on vulnerable consumers. (See Consumer section for more details.) Additionally, in relation to advertising, the fitness check focuses on transparency in influencer marketing, personalisation of advertising and pricing, use of the word "free" when personal data is collected, subliminal techniques, and AI.

The CMA's Online Choice Architecture programme is currently focusing on urgency claims and timers. (See our previous Regulatory Outlook to find out more about the CMA's open letter on urgency claims and price reduction claims.)

The next wave of the CMA's Online Choice Architecture enforcement is expected to be in relation to lack of choice and meaningful control over personal data and privacy. In the EU, we do not expect that the EU will decide that an overarching digital fairness act is required; however, there might be express bans on dark patterns and specific transparency obligations for influencer marketing.

AI and advertising

Currently, there is no overarching UK artificial intelligence (AI) legislation yet; however, there might be movement towards centralised AI regulation before the next general election in the UK. (See AI section for more predictions in this area.) 

The ASA has announced the launch of an AI-assisted collective ad regulation strategy. The five-year strategy strengthens the ASA's commitment to leveraging AI for the purposes of identifying incompliant ads. Previously, the ASA reported on how it uses AI capabilities in its work through AI-based Active Ad Monitoring system and its approach to the regulation of ads generated by AI. The ASA has confirmed that it will continue using its Active Ad Monitoring system to identify and act against incompliant online ads.

Gambling

The UK's white paper on gambling, "High stakes: gambling reform for the digital age", was published in April 2023. The paper sets forth the government's plans to reform gambling regulation, including measures relating to marketing and advertising. (See our previous Regulatory Outlook for details.)

We do not expect the measures envisaged under the white paper to be finalised before the next general election.

Data Protection and Digital Information Bill: advertising impacts

The UK Data Protection and Digital Information Bill was announced in the King's Speech on 7 November 2023 and was reintroduced to Parliament. We expect the bill to become law in 2024. (See more in Data law section.)

In relation to advertising aspects of the bill, we expect direct marketing measures, including the expansion of "soft opt-in" for non-commercial organisations (for example, charities or political organisations) and potential for a future carve out from direct marketing rules for political campaigning.

Other anticipated measures are the addressing of unsolicited marketing calls (possible increased jeopardy not non-compliance) and Privacy and Electronic Communications Regulations enforcement, with potential fines up from £500,000 to the General Data Protection Regulation level.

Digitally altered images in ads

CAP and BCAP published an update statement in November 2023 on their work relating to the use of digitally altered images in ads. (See our previous Regulatory Outlook for more details.) 

Although mandatory labelling is not required, we expect increased focus on body image and advertisers will be expected to be mindful of the conclusions of this consultation.

European Accessibility Act

The European Accessibility Act imposes accessibility requirements on e-commerce, which will catch some forms of advertising. Its broad principles concerns two areas.

It looks to make key information available in multiple senses and accessible by assistive technologies (including call centres) surface information about accessibility of products.

And it aims to make identification security processes and payment systems "perceivable, operable, understandable and robust".

The European Accessibility Act entering into force will give focus to accessibility and digital inclusion more generally. It will also likely result in interpreting equivalent obligations in the UK under the Equality Act through the lens of the European Accessibility Act.

High fat, salt or sugar products

CAP and BCAP have launched a consultation on the implementation of further restrictions on the advertising of high fat, salt or sugar (HFSS) food or drink products that come into force in October 2025. (See Food law section for more details.)

The committees are consulting on new guidance to accompany the less healthy product advertising restrictions and to assist in the understanding of which ads are in scope of the rules, as well as on the wording of the new rules to be added to the advertising codes. They are also considering technical updates to the current rules and guidance in relation to food and drink advertising to ensure the new rules are aligned with the existing ones.

The consultation closes on 7 February 2024.