Ads & Brands Law Digest: November 2022

In this issue, we discuss new guidance on targeting age-restricted ads online, CAP and BCAP’s interim statement on body image issues in advertising, the CMA’s guidance on "hidden advertising" on social media, Scottish Government proposals to restrict alcohol promotion and marketing, the CMA’s enforcement action against online choice architecture and the return of the Online Safety Bill.

In this edition:

• Advertising & Marketing
• Regulatory

Advertising & Marketing

New guidance on targeting age-restricted ads online issued

The Committee of Advertising Practice (CAP) has published new guidance for advertisers on how to target age-restricted ads responsibly online.

Through content, media placement and audience targeting restrictions, the CAP Code places a particular emphasis on protecting children and young people from potentially harmful, irresponsible or inappropriate ads. Alcohol, gambling and other age-restricted ads must not be directed at children (under-16s) and young people (aged 16 and 17) – depending on the products advertised – and must not appear alongside media where children and/or young people form more than 25% of the audience. Under the advertising rules, advertisers have ultimate responsibility for ensuring age-restricted campaigns are targeted in accordance with the rules.

The guidance includes useful checklists for marketers to use.

In addition, the ASA has published its research findings of children’s real-world exposure to age-restricted ads online. It will report publicly in early 2023 on any follow-up enforcement action it takes as a result of the findings from the research findings.

For more information, see here and here.

CAP and BCAP issue interim statement on body image issues in advertising

CAP and BCAP have published an interim statement following their call for evidence on body image issues in advertising, which closed in January 2022.

The primary objective of the call for evidence was to understand whether there are body image harms arising from advertising that are not adequately addressed by existing rules and guidance, or the ASA’s application of those rules.

Following the responses, CAP and BCAP consider that, at present, the evidence received doesn't identify significant gaps in the current regulatory framework, which sets out a range of general and specific restrictions to prevent ads from harmfully affecting how audience members see themselves physically and how they believe others see them physically.

They will be prioritising exploratory work in the following policy areas:

• The potential harms arising from digitally altered images in advertising and labelling as a possible intervention;
• The potential harms arising from the depiction of muscularity in advertising; and
• The potential harms arising from the depiction of women from minority ethnic backgrounds in ads and whether new and unattainable body image ideals could be created.

For more information, see here and here.

Regulatory

CMA issues guidance on "hidden advertising" on social media

The Competition and Markets Authority (CMA) has produced a suite of resources designed to help those publishing and sharing paid promotions to comply with consumer protection law. 

Three separate guides set out the expectations for social media platforms, brands and influencers about being open and upfront when it comes to paid promotions, as well as explaining the roles and responsibilities of the different regulators of online advertising.

For more information, see here and here.

Scottish Government proposes to restrict alcohol promotion and marketing

The Scottish Government has launched a consultation on the proposed restrictions on alcohol advertising and promotion in Scotland. The Scottish Government noted that alcohol marketing has harmful impacts on people, especially children and young people in Scotland, and as such, is now proposing to restrict and reduce alcohol advertising, marketing and promotion in sports and events sponsorship, outdoor and public spaces, cinema advertising, online, television and radio, print, brand sharing merchandise, and stores. The Scottish Government is also seeking input on how the restrictions can be effectively monitored and enforced. The consultation ends on 9 March 2023.

For more information, see here and here.

CMA launches enforcement action regarding online choice architecture

The CMA is starting a new programme of consumer enforcement work focused on so-called ‘Online Choice Architecture’ and aimed at tackling potentially harmful online selling practices, including pressure selling tactics such as urgent time limited claims.

The CMA’s consumer enforcement programme will look at online sales practices including:

• urgency tactics such as countdown clocks, where sellers put pressure on shoppers to buy quickly; and
• eye-catching discount offers, such as ‘50% off’ claims, when the real price reduction may not be as great as claimed.

Earlier this year, the CMA reported on how the way businesses present information and choices to consumers online can be used to influence people’s purchasing decisions and identified 21 potentially harmful practices which are often used across the online economy.

For more information, see here and here.

Online Safety Bill makes a comeback

The Online Safety Bill has returned to parliament and will be the subject of significant amendments.  However, the aspects which are of most interest to advertisers are expected to remain largely intact. The Bill includes provisions to tackle paid-for fraudulent advertising in user to user and search services.

For more information, see here.