The ASA (Advertising Standards Authority) is the UK's self-regulatory organisation of the advertising industry, which administers the CAP Code for non-broadcast adverts. Whilst it has powers in relation to broadcast ads, delegated to it under contract with Ofcom, it has no statutory basis or powers in relation to non-broadcast adverts. This article looks at the scope of the CAP Code.
Most promotional statements, which are or are intended to be marketing or advertisements, will fall within the scope of the CAP Code. In practice, the ASA deals with most day-to-day advertising complaints whereas the legal regulators (such as Trading Standards and the Competition and Markets Authority) cover industry wide investigations and more serious issues (although there is a quite a large degree of overlap). While consumer law covers unfair commercial practices (eg misleading actions and omissions) and comparative advertising, the CAP Code has more detailed rules which cover many things, such as offensiveness, and motoring and alcohol adverts which the law generally does not.
The Code itself sets out in detail what is covered and what is not here.
What sort of adverts are within the scope of the CAP Code?
Unless excluded, most types of marketing, adverts and other promotions are covered by the Code. This includes:
- adverts in emails, text messages, brochures and catalogues, mailings and publications (such as newspapers)
- cinema and video adverts (such as YouTube adverts) (see more here)
- promotions in non-broadcast media (such as special offers and prize draws)
- hard copy and digital outdoor adverts (such as on a hoarding or bus stop)
- advertisements and other marketing communications "by or from companies, organisations or sole traders on their own websites, or in other non-paid-for space online under their control, that are directly connected with the supply or transfer of goods, services, opportunities and gifts"
- online adverts in paid-for space such as banner ads, key-word/sponsored search listings, and preferential listings on price comparison sites
- in-game adverts (see this guidance note for more information on advergames)
- advertorials which the ASA describes as "an advertisement feature, announcement or promotion, the content of which is controlled by the marketer, not the publisher, that is disseminated in exchange for a payment or other reciprocal arrangement".
What adverts are not covered by the Code?
There are many exclusions from the Code although some of them are quite narrow. Some of these exclusions include:
- broadcast adverts, covered by the BCAP Code, which contains rules that govern Ofcom licensed television channels or radio stations
- adverts online or in apps unless they meet at least one of the following 'UK' criteria: they are (a) non-paid-for marketing communications from or by marketers with a UK registered company address; (b) marketing communications appearing on websites with a “.uk” top-level domain; or (c) paid-for marketing communications from or by marketers targeting people in the UK
- claims in marketing communications addressed only to "medical, dental, veterinary or allied practitioners", and that relate to those areas of expertise
- private correspondence, which includes correspondence between organisations and their customers about existing relationships or past purchases. This is not as broad as it seems. The guidance note says that "this exclusion applies to material like bills, account statements or information about products already purchased sent to existing customers…provided that the communication is not soliciting new business or advertising new products or services. Bespoke correspondence sent to only one consumer in response to their specific query is also likely to be considered outside of the scope of the Code. However, if the communication is standard…and sent to a number of recipients and the content encourages recipients to subscribe to or buy a different product or service, or take up a promotional offer, it is likely that the Code would apply..."
- live oral communications, for example telephone calls
- press releases and other public relations material which are not adverts covered by the above examples as being within the Code. A guidance note clarifies this exclusion as press releases are often promotional. If the press release is sent directly to a journalist or listed on the press releases part of a website, without the intention of selling to consumers, then it is likely to be excluded. However, "if it is included in a mailing sent to consumers, published in its entirety in a [paid-for] press ad…or placed in a context on a website where it is clearly targeted at consumers, then the content would likely fall within the scope of the Code."
- editorial content, for example, "of the media or of books and regular competitions such as crosswords." However, where a book is advertised for sale by showing the front or back cover of the book, the advert itself is not excluded from the Code
- products and packaging, wrappers, labels, tickets, timetables and price lists "unless they advertise another product or a promotion or are visible in a marketing communication". Guidance on this explains that, when products and packaging are featured in marketing communications, the presentation of the ‘pack shot’ and any claims that are visible will fall within remit in that particular context. For example, in a ruling against Universal Music, the advert in question was a poster promoting a Demi Lovato album featuring an image of the album cover. The poster was seen in multiple sites across London. A headline stated “DEMI LOVATO” and “HOLY FVCK”, which was the name of the album, and the poster featured an image of Ms Lovato bound in a bondage-style outfit whilst lying on a large, cushioned crucifix. The ASA ruled that the picture and name of the album fell within the scope of the Code as they were being used in an advert and, as the posters were untargeted, they were likely to cause serious offence to certain groups (eg children and Christians). This exclusion and the editorial content exclusion above can potentially mean that, even if a product (including one showing editorial content) and/or its packaging is lawful and can lawfully be sold, the ASA can prohibit an advert featuring an image of the product/packing (eg if they deem the image to be offensive or misleading)
- point-of-sale displays, except those covered by the promotional marketing rules. This exclusion is fairly narrow. Guidance includes that a "marketer’s own materials that are ‘fixed’ at ‘point of sale’ or appear in physical space that the marketer owns, [are excluded] unless they include a promotion." The "exemption applies to materials that are ‘fixed’ and intended to remain within the ‘premises’ and includes…signage, posters, shop window and shelf displays, stands in store and at trade shows, shelf edge labels and price/menu boards, menus and ‘A’ boards outside the premises…Materials that can be taken away, such as leaflets, brochures, carrier bags and business cards remain within scope."
- sponsorship. However, marketing communications that refer to sponsorship are covered by the Code. This exclusion is not very clear. A guidance note includes that "…while the terms of the [sponsorship] arrangement and some of the materials arising from it are likely to fall [outside] the Code, advertising that refers to sponsorship arrangements, eg press ads, posters or claims on a marketer’s own website, remains within the scope … [T]his exemption is usually applied to logos and messages on the kits of professional sportspeople and athletes, on racing vehicles and on posters or pitch/track-side hoardings that have appeared as part of a sponsorship agreement (rather than by virtue of having paid purely for ad space). But, an image of, or reference to, any of these things appearing in an ad, eg a press ad, poster, or on the marketer's own website or social media, may fall within the scope"
- investor relations, which the ASA describes as "information about an organisation (including its goods or services) addressed to the financial community, including shareholders and investors, as well as others who might be interested in the company's stock or financial stability".
Conclusion
It is not always obvious when the ASA has jurisdiction to regulate an advert under the CAP Code. This is important to understand when advising on the compliance risks of an advert as the CAP Code rules and the ASA can be more stringent than the law and statutory regulators, even if the penalties for breach of the Code are generally less serious.
