Regulatory Outlook | Advertising and marketing | July 2021

Current Issues

Restrictions on advertising food and drink products linked with childhood obesity

The government has announced that new restrictions on advertising food and drink products linked to childhood obesity will come into effect at the end of 2022.

The restrictions will ban certain food and drink products that are linked to childhood obesity and meet the definition of foods that are high in fat, salt and sugar from being advertised in paid-for online advertising and before 9pm on television and video-on-demand services.

The ban only applies to businesses with 250 or more employees. Further exemptions are expected to be announced along with clarification on the exact types of food and drink products intended to be caught (for example, nuts and butter could be unintentionally caught by the proposal).

ASA undertakes project on racial and ethnic stereotyping

The Advertising Standards Authority (ASA) announced in December 2020 that it is undertaking a project on racial and ethnic stereotyping. After the death of George Floyd, the ASA has been reflecting on how racial and ethnic stereotyping in advertising may contribute to real world harms.

As a proactive regulator, the ASA is also seeking to understand how societal values and prevailing standards are constantly evolving and the impact this may have on the interpretation and application of the advertising rules.

The ASA closed a call for evidence on 14 July 2021. A report is expected later this year.

ASA and CMA focus on environmental claims

The ASA and the Competition and Markets Authority (CMA) have been working closely together on combatting misleading environmental claims. In May 2021, the CMA published a public consultation on draft guidance to help consumers make better informed decisions about products and services. The guidance is broadly in line with the ASA's current position but does adopt stricter positions than existing Trading Standards guidance.

The ASA has also launched its Climate Change and the Environment project, which will examine the effectiveness of existing rules and review the positions taken by other regulators and countries.

UK Online Safety Bill impacts advertising

The UK published its draft Online Safety Bill (which has broadly similar aims as the EU's Digital Services Act) in May 2021. It applies to "user-to-user services" and "search services".

While in its early stages, the draft Bill excludes paid-for ads from its scope of regulated content. However, any organic ad content (for example, posted by an influencer on a social media platform) may still be within scope.

The draft Bill is expected to go through pre-legislative scrutiny later in 2021.

EU Digital Services Act: key advertising impacts

The EU released its draft Digital Services Act at the end of 2020, which will replace the e-Commerce Directive.

The draft legislation requires platforms that display paid-for advertising to ensure that users can identify: that the information displayed is an ad; the identity of the advertiser; and the targeting parameters used to serve the ad.

"Very large online platforms" must also compile and make public a repository of information about ads shown in the previous year, and consider the risks arising in their ad serving mechanisms in risk assessments. The European Commission will also encourage codes of conduct relating to online advertising.

Dates for the diary

September 2021: CMA misleading environmental claims guidance expected.