Advertising and marketing: legal implications of Brexit for your business

Due to the uncertainty of the full extent of the implication of Brexit on UK legislation, it is difficult to estimate the precise effect that this would have on the advertising and marketing industry and regulation.

• CAP has confirmed that it considers that, in the event that the UK did vote to leave the EU, “it would be unlikely to cause immediate substantive harm to the advertising self- and co-regulatory systems or require marketers to change their approach to compliance with the Codes in the short-term.”
• Parts of the UK Advertising Codes are based on UK legislation and will only be updated once UK legislation has changed, regardless of any changes at an EU level (as can be seen from CAP’s silence in light of the upcoming implementation of the Tobacco Products Directive). However there are areas of the Codes which are heavily based on EU-originating legislation. The UK’s obligation to comply with these requirements will remain until it has actually left the EU and therefore a vote to leave will not affect these requirements in the immediate future.
• The Advertising Standards Authority’s enforcement of the CAP Code is very much based on its own previous decisions (rather than EU-wide trends or views), and this is just one example of a UK self-regulatory body that acts independently of political influences at a EU level.
• Similarly, Ofcom’s duty to regulate television and radio derives from UK legislation, and regulation by bodies such as the Gambling Commission is also based on UK law. So, even if EU law no longer applied, the approach of these regulators would not change until UK legislation had changed, which would clearly not be an overnight process.

Brexit: a potential benefit?

One potential benefit of Brexit though is that it could provide UK regulatory bodies with the freedom to act completely independently from a wider EU approach.

• Whilst these bodies mainly operate as a result of and based on UK legislation, they are, to at least some degree, influenced by wider EU decisions and processes.
• Leaving the EU could therefore present regulators with the opportunity to have even greater autonomy and, over time, this could lead to UK regulators developing and enforcing a different approach to that of their EU counterparts (for better or for worse).
• As self-regulation is particularly popular in the UK, the advantage of this independence could mean that, in the event of Brexit, the UK may have an opportunity to have an advertising industry that takes a more liberal and creative approach than the rest of the EU.
• Conversely though, if UK regulators were to take a stricter or differing approach than the EU, this could lead to brands having to adapt their advertising specifically for the UK market, which could be a material disadvantage that reduced the attractiveness of the UK advertising market for international brands.

Visit our Brexit page for more on the legal implications of Brexit for your business, or register to receive regular Brexit updates by email.