Implications of Brexit for advertising and marketing

Published on 13th Aug 2018

Is any new EU legislation expected to come into force and effect before the end of the proposed transition period?

We are expecting a new EU E-Privacy Regulation, which is likely to significantly impact the rules on cookies, device fingerprinting, direct marketing and targeted advertising. The original intention was that this regulation would be brought into law at the same time as GDPR. This project has been delayed and the Council of Ministers has still not agreed a negotiating position.

The EU's New Deal for Consumers package of legislation would have some limited impact on advertising and marketing, especially in relation to online platforms.

Is a new regulator needed, or do additional powers to be given to an existing regulator?

The ASA is principally responsible for enforcing advertising law in the UK. This is not expected to change as a result of Brexit.

Trading Standards and the Competition Markets Authority also have a role in Advertising enforcement. We anticipate no changes to this situation as a result of Brexit.

Is there an existing "equivalence" or "recognition" regime for recognising Third Country regulatory regimes?

There is no equivalence regime or mechanism whereby decisions by UK regulators on advertising law are recognised in third countries.

The ASA is part of the European Advertising Standards Alliance (EASA) which promotes responsible advertising and is the European voice of self-regulation of advertising. The EASA also coordinates and administers a cross-border complaint system which is designed to encourage different countries to take a consistent approach to an individual complaint.

Since the EASA is not an EU body, we do not anticipate any changes to this arrangement.

The loss of any applicable equivalence or recognition scheme for specific sectors such as financial services or pharmaceuticals may impact on advertising in those sectors.

Does current UK government policy mean that (subject to the terms of a future trade agreement between the UK and the EU) material changes to regulation or enforcement are likely post-Brexit?

Current UK policy is driving a stricter approach to advertising so-called "junk food" and gambling. This trend for stricter regulation in sensitive areas has been on-going for many years and all indications are that this will continue.

It is possible that if the UK decides to align food regulatory standards with the US (rather than the EU) post-Brexit, part of this arrangement will involve the de-regulation of food advertising.  However there is little political or consumer appetite for this result so we judge it unlikely.

There does appear to be some political appetite for de-regulating the advertising of e-cigarettes. For example the ASA has recently consulted on permitting limited use of health claims in advertising. This process could be hastened as a result of leaving the EU.

What should businesses be doing now to prepare for Brexit?

We do not expect major immediate impacts on advertising law, outside of particular regulated sectors. However, businesses involved in data-driven online advertising and marketing will need to consider how cross-border data transfers should be handled.

Those businesses which advertise sensitive products such as children's foods, gambling and e-cigarettes should keep abreast of legal and political changes in these areas as the law in these areas may potentially evolve faster in the UK than in the EU post-Brexit.

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* This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

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