Advertising and marketing | UK Regulatory Outlook May 2023

ASA and FCA promote rules on advertising financial products 

The Advertising Standards Authority (ASA) and the Financial Conduct Authority (FCA) have launched a campaign to promote the rules on advertising of financial products on social media, or "finfluencing".

The authorities have published an infographic for influencers to help them understand the relevant rules, if they are approached with an opportunity to promote financial products. In particular, it provides a checklist for responsible financial promotions, asking whether a person is authorised by the FCA to promote the product, whether the post complies with the ASA's rules and particular rules on cryptocurrency ads, and more.

EU directive on empowering consumers for the green transition: environmental claims

The Council of the European Union and the European Parliament have adopted their respective positions on the proposal for a directive to empower consumers for the green transition amending the Unfair Commercial Practices Directive 2005 and the Consumer Rights Directive. The proposal aims to help consumers make environmentally friendly choices.

The draft legislation among other things tackles the issue of misleading environmental claims or "greenwashing". In particular, it proposes a ban of generic environmental claims such as "eco-friendly", "eco", "green", or "climate neutral", if such claims are not supported by evidence (per the Parliament's position). The Parliament also proposes to prohibit environmental claims based on carbon offsetting which suggest that a product or service has a neutral, reduced, compensated or positive carbon emissions impact on the environment.

For products aspects of the directive please see the Products section.

UK Gambling White Paper: advertising and marketing aspects

The Gambling White Paper ("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.

In relation to marketing and advertising, the white paper proposes:

1. Tougher restrictions on bonuses and direct marketing.
2. Making advertising smarter and safer with special emphasis on ads that may inappropriately appeal to children and vulnerable people.
3. The development of a new, evidence-based model for safer gambling messages.
4. Encouraging socially responsible sport sponsorship, and for sports governing bodies to make decisions around sport sponsorship.

Ofcom launches a call for evidence on possible removal of stricter advertising rules for PSB

Ofcom has launched a consultation on possible removal of some or all of the stricter advertising rules that apply to commercially-funded public service broadcaster (PSB) channels.

Generally, stricter advertising rules apply to PSB channels than to non-PSB commercial channels. Ofcom, based on the call for evidence conducted last year, has come to a conclusion that such stricter advertising restrictions on PSB channels are no longer justified or proportionate.

Therefore, the regulator now considers and consults on two options:

1. to make the rules between PSB and non-PSB channels the same; or
2. to make the rules the same, save for the difference in the number of internal breaks permitted in programmes (this option is currently the Ofcom's preference).

The consultation closes on 31 May 2023.

ASA's checklist on misleading ads

The ASA has published a checklist which provides guidance to help businesses avoid making misleading claims in their ads. Complaints about potentially misleading ads make up the majority of the total number of complaints received by the ASA each year.

ASA publishes a collection of resources for small businesses

The ASA has published a collection of resources aimed at small businesses to help them understand and comply with the relevant advertising rules. Topics include how to avoid misleading consumers, details on pricing claims and how to responsibly market promotions and competitions.

Technical amendments to CAP and BCAP Code rules on medicines and medical devices

The UK Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP) have published technical changes to the CAP Section 12 and BCAP Section 11 reflecting changes to the regulatory frameworks for medicines and medical devices as a result of Brexit. The amendments concern updating references to legislation underpinning the CAP and BCAP Code rules on advertising for medicines and medical devices, and other minor administrative changes.