Last Thursday, we held our Advertising & Marketing Law Annual Review with our regular speakers, Brinsley Dresden, Jo Farmer, Bryony Long and Geraint Lloyd-Taylor. We were also very excited to welcome two new colleagues: Jen Dinmore, who recently joined us from the Competition and Markets Authority (CMA), and Becky Moore, who has joined as a commercial and advertising law partner in our growing Manchester office.
Get DMCC Ready!
Geraint presented on the new Digital Markets, Competition and Consumers Act 2024 coming into force in April, on unfair commercial practices. It also covers subscription contracts, with those rules coming into force in early 2026.
The fundamental change is that the CMA will not need to go to the courts to enforce consumer law. It can investigate and issue fines itself. The fines for consumer law breaches dwarf the fines that are available under the GDPR and can be up to 10% of annual global turnover. This means that senior officers of companies need to take notice, and avoid taking undue risks with their claims.
Fake reviews and practices
Jen then discussed fake reviews and pricing practices. Fake reviews will be a banned practice under the DMCC Act. The CMA is currently consulting on guidance – traders will need to find and remove reviews.
Pricing has been a big priority for the CMA in the past year, especially with a view to combating the cost-of-living crisis. It has just published its annual plan which said that it would broaden its activity to prevent consumers from being misled by misleading and high pressure online selling. It continues to look at drip pricing, reference pricing and urgency claims.
Green claims: latest developments
Brinsley explained that climate change is right at the top of the ASA's agenda. Claims need to be very clear about what they mean in practice. Hurtigruten fell foul of the ASA when they talked about offering sustainable expeditions and offering free flights in the same breath. It illustrates how concerned consumers are about green claims, especially in certain sectors, such as cruises.
In September 2024, the CMA produced guidance for the fashion sector which makes clear that claims like "eco" are not going to be acceptable unless qualified and explained.
The EU has also been busy in the area of green claims, introducing two new pieces of legislation – the first is the Directive on Empowering Consumers for the Green Transition which will be in force by 27 September 2026, and amends the Consumer Rights Directive and the Unfair Commercial Practices Directive. It has a significant impact on contract drafting, advertising and product labels. The EU has also proposed a Green Claims Directive. Among other things, you will need to be able to verify your claims and make substantiation publicly available, as well as state the extent to which you rely on offsetting.
This adds up to a challenging compliance regime.
Influencers and affiliate marketing
Jo talked about some high-profile ASA rulings involving Grace Beverley and Stephen Barlett and emphasised that you still need to put #ad on social media posts, even if you think it's obvious that it's an ad. Jo also considered affiliate marketing and also pointed out that it is sensible to reply to the ASA's inquiries.
Jo also spoke about the FCA's new guidance about financial promotions in social media which was published in March 2024. Breaching this is a criminal offense, and you could end up in jail. The FCA has started prosecuting influencers in this space!
Influencers need to think about other parts of the CAP Code as well – e.g. if you post about alcohol or other age-restricted products you need to comply with the rules about acting responsibly and not drinking excessively. Brands can find themselves on the hook for the activities of their influencers.
The Incorporated Society of British Advertisers and the Influencer Marketing Trade Body have issued a code of conduct for influencers with new rules about DE&I, health and well-being, accessibility of ads, sustainability and prevention of harm.
AdTech and AI
Bryony discussed the growing amount of regulation that affects AdTech. She discussed the new Data (Use and Access) Bill going through the UK parliamentary process as well as the impact on advertisers of the EU's Digital Markets Act and the Digital Services Act. There have been a few eye-watering fines in this space.
AI is being used in advertising for many purposes e.g. to create content, to track advertising etc., which means agencies are becoming tech companies. AI will be regulated by the EU's AI Act, with most provisions coming into force next year, such as labeling content which has been AI -generated.
The UK is considering its regulatory approach, and we may see an AI Bill dealing with frontier models, that is generative AI governance and maybe copyright as well. Various companies are being investigated and fined for training AI models and illegally scraping imagery.
VoD advertising
Brinsley reminded listeners that video-on-demand advertising is usually governed by the rules for non-broadcast ads, which are often less strict, for example, ads for alcohol and how they appeal to under 18s. It can also be easier to issue political and cause advertising and use product placement on VoD channels. He also highlighted the new opportunities for Advertiser Funded Programming on subscriber VoD channels, and gave examples of high quality programming that has been funded by brands including Ford, American Express and Nissan.
Less healthy foods
Becky talked about the new rules on less healthy foods. From 1 October 2025, paid ads for identifiable less healthy food or drink products will be banned in paid for media online and there is a watershed on TV. CAP guidance on brand advertising has been delayed, and it is consulting on it in the coming weeks.
The food promotion regulations come into full effect later this year in England too. They cover volume promotions, such as 'buy one, get one free' and free drink refill offers for foods high in fat, sugar and salt.
The government will review these restrictions in 2030. In the meantime, the House of Lords select committee on obesity has recommended further measures such as a complete advertising ban of HFSS foods, a salt levy and banning high energy drinks.
ASA decisions
We ended by looking at some interesting and controversial decisions, including the hard-hitting Alzheimer's UK ad. There was also the issue around depiction of race, which arose in a Heinz ad with an image of a wedding party. Brinsley also discussed a Calvin Klein poster ad featuring FKA Twigs where the ASA considered that the imagery was objectifying. She thought the decision was wrong, and she wasn't being objectified. The ASA looked at it again, and said that perhaps it wasn't objectifying after all, but they thought it was unsuitable for an untargeted medium.
Thank you to all those that joined us. We have sent out copies of the slides and a recording of the webinar to all those who registered. Please let us know if you would also like a copy by emailing brinsley.dresden@lewissilkin.com
