Ads & Brands Law Digest: August 2024

HFSS advertising rules WILL come into force on 1 October 2025

The UK government has issued an update about plans to implement restrictions on advertising less healthy products on TV and online. It confirms that the new rules will come into force on 1 October 2025. The rules include:

• introducing a 9pm watershed for less healthy food and drink advertising on TV, including all on-demand programme services (ODPS) under UK jurisdiction, and therefore regulated by Ofcom.
• introducing a restriction on paid-for less healthy food and drink advertising online, including non-Ofcom regulated ODPS, at all times.

The government and the ASA will be preparing guidance for the new rules.

The government is also consulting about the proposed exemption of Ofcom-regulated IPTV services from the online restrictions, bringing them in line with existing exemptions for linear broadcast and ODPS. It wants to make sure that the application of the advertising restrictions to these services is coherent, appropriate and gives clarity to IPTV operators. The consultation ends on 10 October 2024.

Product Regulation and Metrology Bill introduced to Parliament

On 4 September 2024, the Product Regulation and Metrology Bill had its first reading in the House of Lords. The Bill's second reading in the House of Lords is due to take place on 8 October 2024. The Bill, which applies to the whole of the UK, aims to reform the UK's product safety regime by addressing modern safety issues, including those due to technological advances, such as AI, the fire risk associated with e-bikes and lithium-ion batteries. The Bill also aims to identify new and emerging business models in the supply chain, and ensure that the law can be updated to recognise new or updated EU product regulations, including the CE marking, where appropriate.

UK government sets out implementation timetable for Digital Markets, Competition and Consumers Act 2024

On 9 September 2024, the UK government indicated the planned timetable for the implementation of the Digital Markets, Competition and Consumers Act 2024.

In April 2025, the government expects to commence Part 3 of the Act, which provides for the consumer enforcement regimes, and Part 4, Chapter 1 of the Act, which replaces the Consumer Protection from Unfair Trading Regulations. Secondary legislation will set out rules for the CMA’s new direct enforcement powers, alongside guidance about how it will use its new powers. New savings schemes rules will not commence before April 2025. Reforms to subscriptions contracts and alternative dispute resolution will follow later, with subscriptions reforms not commencing before Spring 2026, at the earliest. These timelines follow commitments made in the previous Parliament, and the government says that they reflect the quickest possible delivery of the reforms, while ensuring that the necessary consultation and other steps can take place.

CMA launches investigation into Ticketmaster over Oasis concert sales

The CMA is investigating concerns regarding the sale of Oasis concert tickets by Ticketmaster, including how dynamic pricing may have been used.

The investigation will consider a variety of things including whether:

• Ticketmaster has engaged in unfair commercial practices which are prohibited under the Consumer Protection from Unfair Trading Regulations 2008;
• People were given clear and timely information to explain that the tickets could be subject to so-called ‘dynamic pricing’ with prices changing depending on demand, and how this would operate, including the price they would pay for any tickets purchased; or
• People were put under pressure to buy tickets within a short period of time – at a higher price than they understood they would have to pay, potentially affecting their purchasing decisions.

The CMA has also reiterated that more protections are needed for consumers buying tickets on the secondary market. It is also separately considering broader competition and consumer issues raised by so-called ‘dynamic pricing’.

The ASA has received many complaints from fans and has said that it will work with the CMA on its investigation, rather than launch an investigation of its own.

ICO takes action against Sky Betting and Gaming for using cookies without consent

The ICO has issued a reprimand to Bonne Terre Limited, trading as Sky Betting and Gaming, for unlawfully processing people’s data through advertising cookies without their consent.

In early 2023, Sky Betting and Gaming was processing people’s personal information and sharing it with advertising technology companies as soon as they accessed the SkyBet website - before they had the option to accept or reject advertising cookies. This meant that their personal information could be used to target them with personalised adverts without their prior consent or knowledge. While no evidence of deliberate misuse was found, the ICO concluded that Sky Betting and Gaming was processing personal data by using certain cookies in a way that was not lawful, transparent or fair.

As a result of the ICO’s investigation, Sky Betting and Gaming made changes in March 2023 to ensure that people could reject advertising cookies before their personal information was shared for these purposes.

The ICO has also said that it will publish updated guidance for consultation later this year on the use of cookies and similar tracking technologies, as well as its position on the ‘consent or pay’ business model following a consultation.

New rules for advertising broadband in force

New Ofcom guidance has come into force this week which says that consumers must be told in clear terms about the technology that underpins their broadband service when signing up to a new deal.

Broadband providers must now be clear and unambiguous about whether the network they use is a new ‘full-fibre’ network – with fibre all the way to a customer’s home – or a ‘part-fibre’, ‘copper’, or ‘cable’ network. Providers will no longer be able to use the term ‘fibre’ on its own. This information must be given to consumers before they agree to purchase a broadband service, regardless of whether they sign up in person, over the phone or online.

Providers must:

• give a short description of the underlying network technology of each broadband product using one or two terms that are clear and unambiguous, such as ‘cable’, ‘copper’, ‘full-fibre’ or ‘part-fibre’. These descriptions should be offered at point of sale on the website, and before the final purchase in contract information, and in the contract summary;
• ·not use the term ‘fibre’ on its own to describe the underlying broadband technology. This would mean, for instance, that ‘full-fibre’ (or a similar term) is only used to describe networks which use fibre-optic cables all the way from the exchange to the home. Similarly, ‘part-fibre’ (or a similar term) would describe those services with a fibre-optic connection from the local exchange to the street cabinet and then usually a copper wire connecting the street cabinet to the customer’s home; and
•  give a more thorough explanation of the underlying broadband technology - for example through a link - so that consumers can understand in more detail what it means for them. This information must be provided in an accessible form that is easy to understand.