Marketinglaw Update: May 2022

Welcome to the latest edition of Marketinglaw.

Our coverage this month includes updates on environmental and green claims from the Committee of Advertising Practice (CAP) and the Broadcast CAP (BCAP), the Competition and Markets Authority (CMA) and the European Commission; the Advertising Standards Authority's (ASA) action against 50 cryptocurrency companies (together with some learning points), and the CAP's new prize promotion hub, and rulings on a cancelled prize promotion and failing to name judges. 

This months updates

ASA shines a light on 'dark patterns'
The ASA issues guidance on 'dark patterns' as the UK Government and European Data Protection Board also focus in on the topic. Chloe Deng reports.
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The ASA isn't being cryptic about cryptocurrency
The ASA has turned its focus to monitoring and taking enforcement action against crypto ads. What are the requirements for crypto ads? Rebecca Chui reports.
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ASA ruling affirms prize draws need to have accessible and retainable terms and conditions and use a verifiable random selection mechanism
The ASA has ruled that prize draw terms and conditions need to be readily available during the length of a promotion and promoters need to be able to evidence that prizes are awarded in accordance with the laws of chance. Jennifer Tur reports.
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Cadbury named and shamed for failing to name judges
The ASA has upheld a complaint against Cadbury for a failure to provide the full names of the judges on the panel for a competition to design your own chocolate bar. Pippa Smith reports.
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Online gambling company fined £1.17m for targeting marketing at vulnerable consumers 
The Gambling Commission has fined Bonne Terre £1.17m for socially irresponsible marketing. Ben Nicholson and Rebecca Elvidge report. 
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Cancelled East Midlands Railway promotion was not on the right track
The ASA has ruled that a cancelled prize promotion, where no prize was awarded, caused unnecessary disappointment to participants. The fact that the terms and conditions of the promotion stated that the competition could be cancelled, did not absolve the advertiser of their obligation to comply with the Code.
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Millions of "frustrating and intrusive" nuisance messages result in fines totalling £495,000 for well-known companies
The ICO has fined We Buy Any Car, Sports Direct and Saga a total of £495,000 after they between them sent more than 354 million nuisance messages, Dan Charie and Lucy Price report.
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Clashes with cashback claims: ASA upholds complaints that cashback claims are misleading
The ASA has ruled that certain cashback claims were misleading on the basis they did not adequately explain how cashback offers were calculated. Rebecca Chui reports.
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ASA launches a social media promotions guidance hub
The ASA has created a central page of guidance regarding the running of promotions on social media. Georgie Taylor and Daisy Dowding report.
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Marketing communication must be clearly identifiable:  #Ad #shortandclear #unambiguous 
The ASA ruled that an Instagram post by an influencer labelled #iworkwitgprimark was not obviously indefinable as an ad as the label was unclear and ambiguous. Jennifer Tur reports.
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BrewDog Punks the ASA
The ASA has ruled that a series of BrewDog ads offering the chance to win a prize of a 24-carat solid gold beer can were misleading. TK Spiff reports.
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Advertising and ecological transition: what impact for the media sector?
Codes of conduct on environmental advertising to be published by the CSA to impact notably TV channels. Claire Bouchenard, Julia Darcel and Alix Taverne report.
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ASA to review approach to body image and advertising
The ASA calls for evidence to evaluate the issues around body image and advertising. Pippa Smith reports.
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Pret a Manger in hot water after ASA advises a rethink on subscription ads
Pret a Manger has been advised to rethink its subscription service of five barista-made drinks for £20 a month after customers complained about the offering. TK Spiff reports.
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Eight tips we learned from the ASA's rulings on crypto ads
The ASA recently ruled on a number of crypto advertisements. What can we learn from these rulings? Rebecca Chui reports.
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New Environmental Claims Guidance from CAP, BCAP and the European Commission
Adding to the every-growing library of environmental claims guidance, the CAP, BCAP and the European Commission have published further advice for companies, Gabriella reports. 
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ASA's Copy Advice Team closes telephone service
The ASA's Copy Advice Team has closed its copy advice telephone line. Aisling Farley reports. 
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The Financial Conduct Authority forces John Lewis to withdraw potentially misleading home-contents insurance ad
John Lewis has pulled its most recent home contents insurance ad "Let Life Happen" that the FCA considered had the potential to be misleading and could cause customers to be confused about John Lewis' new home-contents insurance offering. Dan Charie and Nick Price report.
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Other regulatory updates

You may also be interested in the following related updates: 

• ASA issues guidance on advertising in-game purchases

• Advertising Standards Authority consults on alcohol alternatives guidance

• New EU initiative on consumer "right to repair"

• European Commission presents package of European Green Deal proposals

• UK government announces consumer law reform and plans fines of up to 10% of global turnover for breaches

• Online Safety: On 17 March 2022, the Online Safety Bill finally arrived in Parliament. The Bill will require online platforms to tackle legal but harmful content, including exposure to self-harm, harassment and eating disorders. The bill will also be strengthened to stamp out illegal content. We summarise some of the changes that the new version of the bill incorporates and future insights will be published as the bill progresses through its legislative stages. You can also find out more at our dedicated Online Safety hub.

• Online Choice Architecture: The CMA has published two papers on online choice architecture and analyses evidence on how digital design can potentially cause harm for competition and consumers.

• European Court of Justice (ECJ) rules on online ordering buttons: In Fuhrmann-2-GmbH v B (C-249/21), the ECJ held that when assessing whether an online order button makes it clear that clicking on it obliges a consumer to pay, as required by the Consumer Rights Directive, only the words on the actual button and not the ordering process overall are relevant.

Media and Entertainment webinar series 2022

Our 2022 Media and Entertainment webinar series is underway. There are recordings of the digitalisation of advertising and online safety sessions, while the upcoming future of TV and of sport discussions in June and July respectively are open for registration.

UK and EU digital regulation timeline

With so much happening in the digital regulatory, we have created a UK and EU digital regulation timeline that is accessible from a web browser and sets out laws and regulations that are in force and in the pipeline. It is still in "beta mode" but, if you're interested in accessing this, please get in touch with Chloe Deng.