UK Update: Ad Regulation – Time for a Spring Clean?

As January draws to a close, Claudia Winkleman’s enviable winter wardrobe on The Traitors has been a beacon of joy in an otherwise dreary month.

Though impressive, this has not made up for the prevalence of travel cancellations and flying trampolines that has kicked off 2024.

It feels everyone is more ready than ever for spring and the opportunities for change and rejuvenation that brings. But are your marketing policies in need of a spring clean? Here is a round up of what to prepare for in the advertising and promotions arena for 2024.

Greenwashing

The Advertising Standards Authority (“ASA”) remains focused on greenwashing, and from 1 April 2024 will proactively investigate “green disposal claims” (i.e. use of terms such as “recyclable”, “recycling”, “biodegradable”, “compostable” and “plastic alternative”) that appear misleading, with a focus on:

• Ads that omit end of use green disposal information;
• Ads that mislead by suggesting products have multiple green disposal options; and,
• Ads that lack substantiation.

Greenwashing claims can fall within the restrictions on misleading advertising, and will be subject to the Competition and Markets Authority’s (“CMA’s”) new powers of investigation and enforcement provided under the impending Digital Markets, Competition and Consumers Bill (“DMCC”), currently in the late stages of UK parliamentary scrutiny and expecting to come into force later this year. These new powers include issuing infringement decisions for consumer law breaches and imposing fines up to 10% of an undertaking’s global turnover. However, whilst the rules on greenwashing have not been included in the DMCC’s blacklist of automatically banned practices, the CMA’s harsher sanctions could mean firms are facing fines up to tens of millions for non-compliance with its Green Claims Code.

This follows a year of focus on this sector by the CMA, whose 2023 review into green claims in consumer goods culminated in December with the announcement that it was opening an investigation into Unilever UK Limited’s compliance with UK consumer law. The outcome of that investigation, and details of investigations into any new targets, will provide interesting guidance for companies in the consumer goods industry.

High fat salt and sugar levels in food and drink (“HFSS”)

Legislation around the marketing of products containing HFSS will come into force in England in October 2025. Businesses should consider what steps they need to take before this change comes into force, having been delayed twice previously. The key restrictions include a ban on paid-for online ads and TV advertising of HFSS products before 9pm, and a restriction on certain promotions on HFSS products, such as free soft-drink refills, or multibuy deals. In an election year, there is understandable speculation around whether the legislation will take effect, but Keir Starmer appears to have suggested that the ban would go ahead under a Labour government.

The Scottish Government has previously consulted on similar restrictions and published their analysis of this last year. No doubt 2024 will bring more detail on whether the approach will differ from south of the border.

Meantime, the ASA is consulting on how this legislation will impact on changes to its UK-wide Advertising Codes, and considering further restrictions. The consultation ends on the 7 February 2024 with the final outcome expected to be published mid 2024.

Alcohol promotion

The Scottish Government launched a consultation in late 2022 on now aborted proposals to restrictions on alcohol advertising. The results and analysis of this were published in November highlighting clear areas of wide agreement in the importance of tackling alcohol related harm in Scotland, but there are still major concerns raised by industry stakeholders.

The plans will be refreshed and the Scottish Government intends to undertake “targeted stakeholder engagement” on alcohol marketing in early 2024, before opening a consultation on new proposals. Whether these fully reflect the concerns businesses had with the previous restrictive proposals will attract significant interest.

AI and regulation of advertising

The ASA has announced plans to use AI to regulate online advertising and swiftly intercept fraudulent ads online. Priority will be given to high priority areas causing most detriment, including influencer ads and inappropriate targeting. The aim is to achieve more comprehensive reporting on compliance levels in those areas and increase the number of irresponsible online ads amended or withdrawn.

Influencer positions

After several high-profile rulings setting strict parameters for influencers, last year saw the ASA release their ‘Influencers Guide’ for making ads clear. This highlights the requirement that ads must be identifiable as advertising and has resulted in most influencers using the “#Ad” label.

Businesses should be conscious of their liabilities for influencer ad content involving their products. The combination of this guide, the enactment of the Online Safety Act and the use of AI monitoring leaves little excuse for non-compliance for both influencers and brands, and nowhere to hide.

By Burness Paull LLP, Scotland, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact ukscotland@transatlanticlaw.com

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