Live issue: A threat to our freebies?

Billed as the biggest shake-up of consumer protection in 40 years, the Consumer Protection from Unfair Trading Regulations (CPRs) 2008 will, technically at least, bar promoters using "free" in everything from prize draws and gifts to BOGOF deals.

The ruling becomes UK law on 26 May but the legislation is mired in ambiguity. From May, promoters are being told they can still use the word even though, officially, they'll be breaking the law. This means the brands, rather than the government, could be open to prosecution from Trading Standards.

The ISP initially told its members the law was unequivocal. But this advice was amended after the Department for Business and Enterprise and Regulatory Reform and the Office of Fair Trading announced offers like BOGOF and free gifts with purchase would still "generally" be allowed.

According to ISP legal services director Philip Circus, the government and the Committee of Advertising Practice appear to be saying existing rules don't have to change. "So the ISP would not advise members to change their practice on these issues," he says.

The crux, it seems, is the absence of any legal precedent. Until a British court rules on how the law should be applied, there is little hope of clarity. CPRs are less of a deal elsewhere in the EU, where the word "free" in relation to gifts with purchase is banned. There, they are described as "premiums".

"(The UK) ends up with a modus operandi in the absence of a court decision. It's perfectly reasonable to say carry on until a court declares that what we're doing is invalid," says Circus. "But it would be open to Trading Standards to take someone to court if the court agreed to it." He adds, however, that the Swedish and Finnish governments are poised to challenge the UK in EU courts should it fail to follow the letter of the new law.

"Free" is one of the most potent tools for incentivising consumers and especially important when trialling new products. For this reason alone, high street retailers like Boots have vowed to continue using it. In a statement, it says: "We will continue to use the word as we don't believe this is against the legislation."

And it's not just retailers who intend to carry on. Budget airlines rely heavily on price incentives, including on-the-house promotions, to attract passengers. So until a binding legal precedent is set, it is unlikely airlines will bail out of free offers. "When something is genuinely free there's nothing to prevent it being advertised as such," argues easyJet communication director Toby Nicol.

Although the EU rules are designed to catch rogue traders touting bogus claims, it could be shoppers who lose out. Consumers love a BOGOF offer and understand the implied nature of the word "free", according to BD-NTWK group account director Steve Parker. "Free" is powerful but not an automatic sales winner, he says. It depends on what the campaign is saying, where it's being communicated and the hoped-for reaction.

"I don't think shoppers believe they're being duped," he says. "The UK is a fairly sophisticated promotions market and consumers are generally marketing-savvy. They would probably be miffed if they thought the EU was stepping in to 'protect' them."

Parker is unsure what the solution is if "free" is outlawed. "Get two for the price of one perhaps?" he says. The question could be immaterial. The effectiveness of straightforward bribes is diminishing, according to Inferno partner Drew Saunders, and brands are resorting to more sophisticated promotions to encourage sales.

Innocent Drinks is relaunching its Buy One Get One Tree campaign - for every smoothie sold, Innocent will plant a tree - as an ironic twist on BOGOF. It's a sign, says Saunders, that pester power is giving way to understated brand interaction. "Designers are being more subtle to get standout. The buzz words are about consumer social responsibility and young people especially are into this. 'Free' smacks of desperation," he says.

If the Swedes and Finns have their way, the law may yet come into force in the UK - but for now, the BOGOF offer looks set to stay.

THE NEW RULES

The EU's Consumer Protection from Unfair Trading Regulations (CPRs) 2008 ban unfair commercial practices which distort consumers' decision making. They outlaw all misleading and aggressive tactics, plus 31 specific practices considered unfair. This includes describing a product as "gratis", "free", "without charge" or similar if consumers have to pay anything other than the "unavoidable cost" of responding to a promotion and collecting or paying for delivery of the product. The word "free" can be used only in relation to genuine free samples or free gifts that don't require more than the "unavoidable cost" of a stamp or telephone call. Advertising a "free" gift while expecting consumers to pay a fee to receive the item would breach CPRs.