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The new rules of engagement

The British Code of Advertising, Sales Promotion and Direct Marketing just got a makeover. Relax. It's good news for marketers and reflects best practice in marketing and sales promotion, writes brand communication and legal guru Ardi Kolah.

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Unlike so many other areas of law and regulation that have an impact on marketing practice, it's a refreshing change to find that there are detailed guidance notes and examples for marketers available online from cap.org.uk.

The Committee of Advertising Practice is the industry body that creates, revises and enforces the British Code of Advertising, Sales Promotion and Direct Marketing (the CAP Code) -- the rules that apply to non-broadcast marketing communications in the UK.

The CAP Code is endorsed and administered independently by the Advertising Standards Authority.

So why is this good news for me?

First off, it's going to be a lot easier to comply with the CAP Code if you're involved with marketing communications, non-broadcast advertising, sales promotions and direct marketing, including mobile as an integrated campaign.

The reason for this is that the new CAP Code has tidied up some loose ends (on comparative advertising), recognised the increasing importance of direct marketing (now within the Code) and redrafted the previously separate Sales Promotion Code into easier-to-understand language.

Why should I care?

In the UK, the Cap Code is the rule book for non-broadcast advertisements, sales promotions and direct marketing communications.

If you don't know the CAP Code or end up in breach of it, then your marketing campaign will be in danger of being pulled -- and it's a very public adjudication so there are public relations consequences to consider too. Ignorance of the self regulatory CAP Code is no defence.

As discussed in 'Essential Law for Marketers', English law, EU law and regulations like the CAP Code have made a huge impact on marketing, advertising, sales promotions, sponsorship and the use of emerging technological platforms such as broadband, Wap and 3G that are used by a growing number of brand owners. So it pays to be aware of the legal and regulatory frameworks in order to avoid costly problems later.

For example, did you know that there are 275 separate pieces of legislation in England and Wales (most of these laws are also applicable to Scotland and NI), in addition to EU Regulations and Directives, as well as the general duties under Common Law imposed on marketers? Scary, isn't it?

What the CAP Code covers and what it doesn't cover

This 11th version of the CAP Code came into force on Tuesday March 4 2003 and covers all non-broadcast advertisements, sales promotions and direct marketing. However, the ASA will continue to consider complaints under old version CAP Code until June 4 2003.

The CAP Code applies to:

a) advertisements in newspapers, magazines, brochures, leaflets, circulars, mailings, emails, text transmissions, fax transmissions, catalogues, follow-up literature and other electronic and printed material

b) posters and other promotional media in public places, including moving images

c) cinema and video commercials

d) advertisements in non-broadcast electronic media, including online advertisements in paid-for space (eg, banner and pop-up advertisements)

e) viewdata services

f) marketing databases containing consumers' personal information

g) sales promotions

h) advertisement promotions

The CAP Code is primarily concerned with the content of marketing communications and not with terms of business or products themselves.

Some rules, however, go beyond content. For example those that cover the administration of sales promotions, the suitability of promotional items, the delivery of products ordered through an advertisement and the use of personal information in direct marketing.

Editorial content is specifically excluded from the CAP Code, though it might be a factor in determining the context in which marketing communications are judged. So you should avoid hyperbole and transparent puffery.

The CAP Code doesn't apply to:

a) TV or radio commercials, which are the responsibility of the Independent Television Commission (ITC) or the Radio Authority (RA), which are soon to be incorporated into single regulatory body OFCOM

b) contents of premium-rate services, which are the responsibility of the Independent Committee for the Supervision of Standards of Telephone Information Services; marketing communications that refer to these services are covered by the Code

c) marketing communications in foreign media.

d) health-related claims in marketing communications addressed only to the medical, dental, veterinary and allied professions

e) classified private advertisements, including those appearing online

f) statutory, public, police and other official notices/information, as opposed to marketing communications, produced by public authorities and the like

g) works of art exhibited in public or private

h) private correspondence, including correspondence between companies and their customers about existing relationships or past purchases

i) oral communications, including telephone calls

j) news releases and other public relations material, so long as they are not another name for an advertisement or other promotional material

k) editorial content, for example of the media and of books

l) regular competitions such as crosswords

m) flyposting (which is illegal anyway)

n) packages, wrappers, labels, tickets, timetables and price lists unless they advertise another product, a sales promotion or are visible in a marketing communication

o) point of sale displays, except those covered by the sales promotion rules

p) election advertisements created by political parties

q) website content, except sales promotions and advertisements in paid-for space

r) sponsorship; marketing communications that refer to sponsorship are covered by the Code

s) customer charters and codes of practice.

What's interesting about this list is that there are many caveats as to what isn't covered by the CAP Code so be careful here.

Guiding principles must be your starting point

Marketers (in the broadest sense of that word) should follow the following guiding principles before starting to get worried and go immediately to the small print of the CAP Code.

If you have problems complying with these guiding principles then there's a fair chance you're already in danger of being found in breach of the CAP Code and the detailed regulations will define the seriousness of that breach.

The small print stuff

There's a lot of it -- in fact too much to go into great detail in this column so you will need to check the CAP website for more details.

Use of testimonials and endorsements

I like this one because what it now means is that if there is an objective piece of research or a genuine independent opinion from a bona fide published source, say a magazine like Which?, then the CAP Code permits use of this statement without the need to obtain permission from the author. The caveat is: "Unless they are genuine statements taken from a published source, references to tests, trials, professional endorsements, research facilities and professional journals should be used only with the permission of those concerned."

Lowest price claims and price promises

Readers of this column will know that this is a regular issue within marketing and the subject of many complaints to the ASA.

The rules have been tightened up a bit and now marketers must make sure that any price given relates to the product advertised or illustrated, that prices include VAT and other non-optional taxes and duties imposed on all buyers. Where this is B2B, VAT may be excluded provided such advertising gives prominence to the amount or rate of additional costs.

Recommended Retail Price used as a basis of quoted price comparisons should be genuine and should not differ significantly from the price at which the product is generally sold.

Comparative advertising

Another highly contentious marketing tool and one that is increasingly popular, particularly with the technology and leisure industries (such as airline travel). You really need to know what you're doing here because it's a hornet's nest of laws, regulations and potential law suits, so take qualified legal advice.

Niche marketing issues

Alcoholic drinks

You can't suggest (if you ever did!) that drinking can overcome boredom, loneliness or that alcohol has therapeutic properties. Well, you may know more than me about such things... but keep it out of your copy.

Kids

As you can imagine, this is very sensitive area and is very prescriptive as a result (perhaps it goes too far the other way). You must tread very carefully as it's very easy to be in breach here. A child is under 16 years (this is arguable in my view as I've met some very mature 15-year-olds) and not all marketing that is OK for young teenagers will be acceptable for young children. So read this regulation with care.

Tobacco

As already mentioned on Brand Republic, the Cigarette Code has been removed from the CAP Code following the ban on tobacco and advertising and promotion under the Tobacco Advertising and Promotion Act 2002.

Prize Promotions

The scam run by some marketers (particularly on mobile and SMS campaigns where users are told that they have won a prize when in fact they haven't) fall foul of the new CAP Code.

In the first instance, permission is required to send promotional material to the user.

Promoters must also make a clear distinction between prizes and gifts. Gifts offered to all or most consumers in a promotion can't be described as prizes.

If promoters offer gifts to all or most consumers in addition to giving prizes to those who win, particular care is needed to avoid confusing the two.

In such cases, it should be clear that consumers "qualify" for the gifts but have merely an opportunity to win the prizes. If promoters include a gift that consumers have qualified for in a list of other prizes, they should distinguish clearly between the two.

Ardi Kolah is author of 'Essential Law for Marketers' (Butterworth Heinemann, £25.00). Read the review of the book on Brand Republic and order your copy online here.

If you have an opinion on this or any other issue raised on Brand Republic, join the debate in the Forum here.

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