Advertising and marketing | UK Regulatory Outlook November 2024

Government introduces Tobacco and Vapes Bill to Parliament: advertising aspects

The Tobacco and Vapes Bill, which introduces various provisions relating to the sale and distribution of tobacco products and vapes, including a ban on selling vaping or nicotine products to under 18s, had its first reading in the House of Commons on 5 November 2024. See the Products section for more details.

The bill prohibits the publication, design, printing and distribution of advertisements for a range of relevant products. It repeals and replaces the Tobacco Advertising and Promotion Act 2002, which already included measures to limit the marketing and promotion of tobacco products, and to reduce exposure to such activities. Part 6 of the new bill makes similar provisions as contained in the 2002 Act, but now also includes herbal smoking products, cigarette papers, vaping and nicotine products. It will apply across the whole of the UK.

Providing an internet service that allows such ads to be published or distributed is also an offence under the new bill (for example, an email marketing service would commit an offence if any of the emails contained an ad for any of the relevant products). In addition, it is an offence for internet service providers to fail to take all reasonable steps to prevent an ad from being further viewed or distributed once they become aware of it.

The bill passed its second reading on 26 November. View the explanatory notes.

ASA publishes update on its vaping project review

Since June 2023, the Advertising Standards Authority (ASA) has been looking into the issue of vaping ads targeted at or likely to appeal to under 18s, particularly on social media, where they are prohibited. Having engaged with platforms displaying vaping ads, and having taken action against non-compliant businesses and individuals (for example, by having social media accounts removed), the ASA will now end its formal co-ordinated response. However, it will continue routine checks and compliance action in this area and it has further enforcement action in the pipeline.   

NCSC publishes guidance for brands to help digital advertising partners combat 'malvertising'

The UK National Cyber Security Centre's (NCSC) guidance assists brands in ensuring that their digital advertising partners prioritise security.

The advice sets out certain principle-based actions that brands should expect of their partners, including:

• having "know your customer" checks in place;
• implementing robust cyber security practices across their whole digital advertising operations infrastructure;
• using data from verified sources;
• adhering to industry standards and regulations;
• implementing malvertising detection and removal services before and throughout an advertising campaign;
• collaboration among advertisers, publishers and advert networks to share threat intelligence;
• having in place reliable reporting mechanisms of malicious or suspicious activity; and
• being transparent in efforts to reduce user harm.

CMA takes Emma Group to court for failing to address concerns over misleading sales practices

As part of its online choice architecture enforcement programme, the Competition and Markets Authority (CMA) has been investigating whether Emma Group's online selling practices, including the use of countdown timers and discounts, may mislead consumers. Despite calls from the CMA that Emma Group change its practices and enter into undertakings (see this MarketingLaw article), the group has failed to comply. As a result, the CMA is seeking an enforcement order from the court.

Currently, the CMA cannot directly fine businesses for non-compliance. However, its direct consumer enforcement powers under the Digital Markets, Competition and Consumers Act 2024 should come into force in spring 2025. This will enable the CMA to decide when consumer law has been breached without having to issue court proceedings, and to impose fines.

ASA update on use of 'AI' in advertising

On 14 November, the Advertising Standards Authority (ASA) hosted a webinar on "Future-proof Advertising: How will AI change advertising and regulation?", which considered how the ASA currently regulates AI claims in ads, its own use of AI, and guidance for marketers on how to stay compliant with the UK advertising codes. 

The ASA also published a new report, "AI as a marketing term", setting out current trends in the use of "AI" in marketing, as well as some top tips for marketers. For the report, the ASA analysed 16,000 unique paid online ads identified by its Active Ad Monitoring system, which monitors over three million ads each month. Key points include:

• The use of AI as a marketing term has become widespread across a range of sectors.
• Ads using the term "AI" fall roughly into three categories: (a) 68% of the ads identified were for business to business products and services with AI features (for example, accountancy, CRM and cybersecurity software, and tools for content creation, general office productivity and developers working with AI); (b) 9% were for existing consumer products with AI features (for example, personal tech, cameras and home appliances); and (c) 13% were for new "AI-native" products, such as chatbots, image editing tools, tutors, language learning tools.
• When making claims that a product has or uses AI, to avoid misleading consumers, advertisers should not: claim that a product uses AI or has AI features, if it doesn't; exaggerate the functionality of any AI products or features; and claim that an AI product does something better than a non-AI product, without supporting evidence.
• For AI-native products, advertisers should ensure that the products they promote are legal and compliant with any applicable statutory requirements.

During the webinar, the ASA highlighted that advertisers are responsible for the content of their ads and cannot simply blame the AI models if something goes wrong. The regulator also emphasised the importance of human review in relation to AI outputs. Over the next 6-12 months, the ASA will continue to monitor ads in this area and it will produce more guidance and actions if necessary.