Advertising and marketing | UK Regulatory Outlook October 2024

UK CAP and BCAP publish final statement on body image in advertising review

The UK Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP) have published their final statement in relation to their review of body image in advertising.

An interim statement was published in November 2022, following the committees' call for evidence, in which CAP and BCAP identified three areas worthy of further assessment and research in order to decide whether regulatory change is needed (see this Regulatory Outlook):

• digitally altered images in advertising and labelling;
• the depiction of muscularity in advertising; and
• the depiction of women from minority ethnic backgrounds and the potential for developing new and unattainable body image ideals.

In their final statement, the committees say that, having completed their assessments, there is no need at present for new regulatory intervention, as the evidence on the specific role that advertising plays in contributing to potential harms is still developing.

They conclude that there are probably other environmental factors, such as cultural and social influences, that are driving concerns. For example, in respect of digitally altered images, it can be difficult to ascertain the impact of advertising, given the way it is incorporated into the social media landscape where the boundaries between organic and influencer content are often blurred.

The statement concludes that the existing UK advertising codes are sufficient in terms of protecting consumers in this area. The committees note also that efforts within the advertising industry are already under way to tackle body image issues.

The news that no further regulation will be immediately forthcoming will be welcomed by the industry, but this is not necessarily the end of the story, as the regulators say that they will continue to monitor developments, including in relation to the use of AI in advertising.

UK CAP publishes guidance note on affiliate marketing

CAP has issued a new advice note summarising the rules on affiliate marketing.

CAP sees individuals who provide affiliate links as secondary advertisers, meaning that they too must comply with the CAP Code. The note highlights that, while most affiliate marketing appears in social media, it can appear in any online space managed by the affiliate, including emails, newsletters and blogs.

The note reminds readers that ads must be identifiable as such. Where it is not clear that the content consists of or includes affiliate links (for example, influencer social media content), the best way to identify content as advertising is to label it clearly using "Ad" or similar. However, marketers should not use "Aff" (short for "affiliate") to denote ad content.

The advice note explains when different aspects of content containing affiliate links need to be identified as advertising, reminding all those involved, be they marketers (brands) or affiliates (including influencers), that they are jointly responsible under the CAP Code for this type of content.

This is the case even if the brand has no control over the content containing the link and/or if no products have been gifted to the person who includes the affiliate link. It is also likely to be the case where brands use an affiliate partner or a third-party sales platform to direct affiliate traffic to their brand, even if the brand is not aware that the influencer/affiliate had an arrangement with that affiliate partner/third party or is not aware of the content being produced.

CAP concludes by reminding brands to ensure that they have safeguards in place so that ads promoting their brand are always obviously identifiable as such, including when working with third party intermediaries.

The note is a good reminder to brands that they need to keep track of their affiliates/influencers as they are just as responsible as the affiliate/influencer for ensuring compliance with the rules.

Labour confirms it will continue with Online Advertising Taskforce

The Internet Advertising Bureau (IAB) UK has published key takeaways from the Labour Party Conference held in September 2024. These include Labour's decision to continue with, and potentially extend, the Online Advertising Taskforce that is working to bolster self-regulatory initiatives within the digital ad industry. The Online Advertising Taskforce was launched by the previous Conservative government to support the Online Advertising Programme, which aims to review the regulatory framework of paid-for online advertising.

The IAB notes that, at the same time, "there are clear indications that the Labour Government will go beyond self-regulation in some areas such as to strengthen online safety, protect personal data and privacy and create greater alignment with the EU on these subjects."

BCAP publishes new rule banning ads for certain types of cryptoasset products from being broadcast to mainstream, non-specialist audiences

BCAP has published new rule 14.5.5 of the UK Code of Broadcast Advertising (BCAP Code), which explicitly bans ads for certain types of cryptoasset products from being broadcast to mainstream, non-specialist audiences.

Advertising of these products was already subject to such a restriction under BCAP Code rule 14.5.4, (as products not regulated by the Financial Conduct Authority (FCA)). However, in October 2023, new rules on promoting cryptoassets came into force, and the FCA assumed regulation of the advertising of ads for "qualifying cryptoassets" (covering cryptoassets that are fungible and transferable, such as cryptocurrencies and utility (fan) tokens).

BCAP considers that explicitly adding this category to the BCAP Code will maintain the existing restriction, adding certainty to the rule, and will remind broadcasters of the statutory restrictions that apply to advertising them. BCAP highlights that cryptoassets that are not included in the "qualifying cryptoassets" category will continue to be caught under rule 14.5.4, which covers unregulated investments more generally.

BCAP consults on technical issue in relation to the broadcast restriction of ads for unregulated investments

BCAP has published for consultation an amendment to the BCAP Code that restricts the advertisement of certain types of financial products to specialised financial channels, stations and programming, with the consultation closing on 31 October 2024.

BCAP Code rule 14.5 sets out a list of complex financial products which can only be advertised on specialised financial channels, stations or programming, meaning that these ads are prohibited from being advertised on TV and radio to a general audience. The restriction was put in place by the Independent Television Commission, the predecessor to Ofcom, due to concerns that these channels are not well-suited to promoting high-risk or specialist investment products.

A review of the code has revealed that the current wording technically has the unintended effect of banning TV ads for mass market financial products that, in fact, the average consumer would not consider an "investment" product.

The consultation seeks to clarify that the restriction in rule 14.5.4 applies to unregulated investment products that are regarded as "investments" in the conventional sense, and not products that are unlikely to be regarded by the public as "investments".

Ofcom renews co-regulatory arrangements with ASA for regulation of broadcast, ODP and VSP advertising

Ofcom has announced that is has renewed the co-regulatory arrangement that designates responsibility for the day-to-day regulation of broadcast, on demand programme service (ODPS) and video-sharing platform (VSP) advertising to the Advertising Standards Authority (ASA) for a further period of ten years, until 31 October 2034. This follows Ofcom's consultation conducted over the summer.

Updated advertising code of practice for pharmaceutical industry

The Association of the British Pharmaceutical Industry (ABPI) and the Prescription Medicines Code of Practice Authority have published an updated code of practice for the pharmaceutical industry, which sets out, among other things, voluntary industry rules for the promotion of prescription-only medicines.

The updated code incorporates most of the proposals set out in the extensive consultation published by the ABPI in December 2023, as well as changes made in response to consultation feedback.

Clause 12 of the code sets out the prescribing information that must be included in all promotional material for a medicine, except for abbreviated advertisements (covered by clause 13), and has been completely rewritten in consultation with the Medicines and Healthcare products Regulatory Agency. The most significant change is that, for printed promotional material and digital promotional material shown to a recipient in person, the prescribing information can now be provided via a QR code, which must be of sufficient size and clarity so that it can be easily scanned.

The updated code came into effect on 1 October 2024, however no activity will be regarded to be in breach until 31 December 2024, after which date the code will come into full force.

ICC publishes new edition of Advertising and Marketing Communications Code

The International Chamber of Commerce (ICC), the world's largest business association, has published the 11^th edition of its Advertising and Marketing Communications Code, a self-regulatory code for best practice marketing standards.

According to the ICC, significant changes to the code include, among other things:

• new guidelines on the use of algorithms and AI in preparing and delivering marketing communications; 
• encouraging advertisers to be mindful of diversity and the importance of avoiding objectification stereotypes; 
• clear provisions on influencer marketing and the responsibility of influencers and content creators;
• updated standards for green claims; and
• clearer rules regarding children, teens and minors.