EM Law are experts in advising clients on above-the-line advertising law (i.e. advertising which appears in press, magazines, television and on radio). Our lead advertising lawyer is Sharon Playford who has extensive experience in advising clients on a wide range of media law matters.
Advertising law regulatory framework
Above-the-line advertising is regulated by a combination of legislation and self-regulatory codes of conduct.
Advertising law legislative framework
The main pieces of advertising law controlling advertising content in the UK are:
Self-regulation is very important in the UK. The main enforcement body is the Advertising Standards Authority (ASA), which enforces rules for both broadcast and non-broadcast advertising. The ASA is independent of both government and industry. The regimes for broadcast and non-broadcast advertising are considered below.
Other bodies and codes exist for certain industries.
Broadcast advertising covers television (including interactive television) and radio advertising. The UK is subject to EU broadcasting legislation, which has been implemented largely by the Communications Act 2003.
The Office of Communications (Ofcom) has control over the content of all television broadcasting, including control over the content of advertising. Ofcom has published a Broadcasting Code covering radio and television broadcasting but outsourced broadcast advertising regulation to the ASA. Therefore, the ASA operates and enforces the Broadcast Advertising Code (BCAP Code), produced by Broadcast Committee of Advertising Practice (BCAP).
Pre-clearance for broadcast advertising
Clearcast pre-vets all UK broadcast advertising on behalf of the commercial television networks who are jointly responsible with advertisers and agencies for ensuring the advertising shown on their networks is compliant. The Radio Advertising Clearance Centre (RACC) pre-vets advertising for radio. Both organisations will give advice on what is likely to be acceptable advertising content.
The current non-broadcast code is the 12th edition of the UK Code of non-broadcast Advertising, Sales Promotion and Direct Marketing (the CAP Code).
The CAP Code is written by the advertising industry through CAP and is based on International Chamber of Commerce Codes. All the main trade and professional bodies representing advertisers, agencies, service suppliers and media owners are members of CAP and they agree not to accept any advertising which contravenes the CAP Code.
The CAP Code is also enforced by the ASA, which is independent of both government and industry (although funded by an industry levy on advertising space). It covers online advertising and the following areas:
Sanctions for breach of the BCAP and CAP Codes
If the ASA finds that an advertisement breaches the BCAP Code or the CAP Code, the ASA will ask the advertiser to withdraw or change it. The ASA cannot levy fines. However, it does have a number of other sanctions which it can use to ensure compliance.
Controls on advertising content
The main controls on advertising content are set out in the CPUT Regulations and in the CAP and BCAP Codes. The BCAP/CAP Codes’ main provisions are that advertisements should be legal, decent, honest and truthful, that they should not mislead and that advertisers should be able to substantiate all objective claims made.
False and misleading advertising
It is a criminal offence under the CPUT Regulations to make misleading statements about, among others:
Comparative advertising law
Comparative advertising vis-a-vis consumers is governed by the UPCD and the CPUT Regulations.
A consolidated Directive (concerning misleading and comparative advertising) (Comparative Advertising Directive) governs business to business advertising and was implemented in the UK by the BPRs.
A comparative advertisement is one that explicitly or by implication identifies a competitor or goods or services offered by a competitor (Article 2(c), Comparative Advertising Directive). A comparative advertisement is permitted as long as it fulfils particular conditions, including the following:
Advertising claims as contractual terms
While most advertisements will be classified as a mere invitation to make an offer, there are situations, depending on the jurisdiction, where advertisements can form a valid contract between the advertiser and the buyer. Care should, therefore, be taken in wording any advertisement.
Claims made in an advertisement will not usually become terms of a contract entered into in reliance upon those claims (although there may be liability for false or misleading advertising. However, a statement in an advertisement may form part of a description of a product so as to give rise to an implied term in the contract of sale that goods correspond with that description.
For any questions you may have concerning advertsing law contact Sharon Playford.
"Neil and his team have undertaken several items of legal work covering contracts, agreements and share option schemes for IMC Worldwide... View More Testimonials"
Gavin English MD IMC Worldwide Ltd
"Neil at EM Law advised us with regards to GDPR. He was thoughtful and thorough.... View More Testimonials"
COO of a Strategic Communications Agency
"I want to thank Neil at Emerging Law for his support and guidance whilst I have been setting up my own business. He has talked me through the step by step stages and legalities involved so that I can make informed decisions about my business approach... View More Testimonials"
Ayshen Ali founder Attainers Limited
"I felt incredibly fortunate to have come across Imogen. She was fantastic at helping at every juncture... View More Testimonials"
SM, Recruitment Manager
"Neil and Lauren were both very helpful in drafting contracts I needed for my firm... View More Testimonials"
Alex Mosley, Director Perrygate Property Limited
"Neil and Helen provided us with an employment contract and terms and conditions of business. We found Neil and Helen to be extremely informative and helpful throughout the process... View More Testimonials"
Grant Lambert MD Honor Search (Digital Recruitment)
"Neil Williamson, I cannot thank enough for his work and legal advice, which had brought the great result.... View More Testimonials"
"Neil was brilliant, patient and thorough guiding me through queries setting up my business to be compliant.... View More Testimonials"
Kate York, Photographer
"Neil and I worked alongside each other for several years securing software business overseas for Crown Agents... View More Testimonials"
Nick Small Director Nick Small Consulting
"What can I say about Imogen? She was the shining star in what was a very difficult time for me.... View More Testimonials"
VR, Nutritional Chef and Culinary Manager
"Imogen....has a very personable approach and is succinct in her communication. I would highly recommend her... View More Testimonials"
KE, Development Manager
"Imogen has always given me sound, objective and carefully considered legal advice.... View More Testimonials"
MB, Senior Sponsorship Manager
"Thank you for all your help with the matters regarding my company, you have been thorough in all aspects to the finer detail... View More Testimonials"
John Taylor Director Glo-bell London Ltd
"Neil is able to address complex issues, give us advice that we can follow and come up with creative solutions... View More Testimonials"
Ismet Yucetas CEO Middle East Air Drilling Services
"Imogen is a fantastic employment lawyer. Clear, supportive and very skilled in her area.... View More Testimonials"
LC, Director at a Management Consultancy
"Neil helped us structure, negotiate and put in place our first client software-as-a-service contracts. His technical and commercial advice was invaluable - he understands exactly where we are coming from... View More Testimonials"
Lena Rosenior CEO De Graft Management Ltd
"Cardno has worked closely with EM Law since 2013. The advice and support provided to our business by EM Law has been of a high quality, relevant to our requirements and more importantly helped us to make the appropriate decisions that have contributed to the success of our business... View More Testimonials"
George Mukkath Managing Director Cardno Emerging Markets (UK) Ltd
"We have been working with Neil for many years now, more recently on a retained basis because he has become someone we trust and who understands our business requirements. ... View More Testimonials"
Rupert Wood CEO Wasteland Ski Ltd
"We have worked with Neil and his colleagues on a number of different company issues including business acquisitions, client contract and employment matters... View More Testimonials"
Dave Dadds CEO DRD Communications Ltd
"Starting a new venture, within a new country......I needed someone who could understand the complexities and culture of the venture...... View More Testimonials"
Maren Koros CEO Afyacore
"EM Law have supported Anexsys with a number of legal issues, ranging from drafting complex IT contracts to developing conflict policies and advising on a range of complex multi-jurisdiction legal issues... View More Testimonials"
Rob Crowley MD Anexsys Ltd
Can We Help You?
We are here to help with any of your questions.
Just click "Yes" below.
Please enter your question below
Please enter your name and email address so than we can send you a response
Thank you for sending us your question. We will contact you shortly to discuss this.
Sorry, there is a technical issue. Please contact us by telephone: 0203 637 6374