Regulatory Outlook | Advertising and Marketing | February 2019

Written on 7 Feb 2019

Current issues

Adverts depicting “harmful gender stereotypes” to be banned

From 14 June 2019, adverts will be prohibited from depicting “harmful gender stereotypes”.  The intention is to prohibit adverts which suggest that certain activities or roles are exclusively associated with one gender.  Particular care will need to be taken when advertising to certain groups, such as new mums or children.

BVA updated its “pets in advertising” guidance

Although the British Veterinary Association guidance does not have any legal force, the Advertising Standards Authority (ASA) has described it as “authoritative guidance” and therefore it is likely that any significant breach of the guidance would be considered serious by the ASA.

Increased sanctions for unsolicited direct marketing and unlawful use of automated calling systems

The rules regarding direct marketing and automated calling have not changed.  However, there was a perception that they were widely disregarded due to the lack of practical sanctions.

To address this, the Information Commissioner’s Office (ICO) has been given the power to impose new sanctions, including the ability to impose fines of up to £500,000 on directors of companies. The new rules are intended to improve compliance by making directors and other senior officers personally liable.

In addition to allowing the ICO to fine directors and other senior officers, individuals may also be disqualified from holding a directorship.

CAP consults (again) on GDPR implications for advertising codes

CAP had previously consulted on the implications of the General Data Protection Regulation (GDPR) for the regulation of advertising.  This consultation had closed. However, the responses indicated that further consultation was needed, specifically on the age of consent for children and the lawful grounds for publishing the names of prizewinners.

This second consultation has now closed and we are awaiting a response from CAP on how the rules will be amended to make them compliant with the GDPR.  In the meantime, the ASA has stated that it will not enforce the current obligation to publish the names of prizewinners.

In Focus: No deal Brexit

What would be the impact of a no deal Brexit for UK businesses trading with the EU?

The principles of advertising regulation are based in EU law. However, each Member State has its own specific rules, guidance and regulators.  Any UK business advertising in a EU 27 Member State will therefore still need to comply with the local regimes in each Member State in which they advertise.

What would be the impact of a no deal Brexit for non-UK businesses trading with the UK?

UK advertising regulation is primarily in the form of a domestic self-regulatory code, which applies to all advertising in the UK (regardless of where the advertiser is based).  The regime is enforced by the ASA.  In some instances this is based on EU law. However, given that all existing EU law is being imported into UK law under the EU (Withdrawal) Act on 29 March 2019 in a no deal Brexit, we do not anticipate any immediate change to the law as a result of Brexit, with the exception of some minor changes as a result of ‘correcting powers’ under the EU (Withdrawal) Act 2018.  For example, the offence of advertising or promoting tobacco online will now be limited to websites targeting the UK.

In the longer term, a ‘hard’ Brexit in which the UK is not required to maintain regulatory alignment with the EU would likely mean that UK advertising law would diverge from EU advertising law.  For example, if the UK does not implement any new EU privacy regulation, new restrictions in relation to the EU, such as in relation to the way that consent needs to be obtained from consumers, may not apply in the UK.  As a consequence taking a consistent approach to advertising across Europe may be challenging in the longer term.

What should businesses be doing now to prepare for a no deal Brexit?

Businesses should keep up-to-date on announcements from the ASA and the UK government regarding how advertising rules may change in the future as a result of Brexit.

Businesses should also consider the potential knock-on effects for advertising arising from other issues, such as any contractual arrangements which underlie the advertising.

Where advertising makes use of intellectual property such as EU trade marks or geographical indicators, advertisers should make sure they review whether any additional registrations or notifications are needed (such as applying for a equivalent UK trade mark) before using this IP in advertising.

 

Dates for the Diary

14 June 2019 Rules on gender stereotyping in adverts come into effect.