Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
lthough the CAP Code is not statutory and neither CAP nor the ASA interprets the law, the self-regulatory system dovetails with law enforcement bodies and operates within an over-arching legal framework. The Code complements, reflects and sometimes goes beyond the law: in some places it specifically refers to legislation (for example, in financial advertising or distance selling) and in others it mirrors the law (for example, it prohibits prescription-only medicines being advertised to the public). Generally, however, the Code merely reminds marketers that they have primary responsibility for ensuring that their marketing communications are legal (see How The System Works: The law) and should not incite anyone to break the law (Rule 1.10).
It is unlikely that CAP or the ASA would get involved in the content of a marketing communication if its distribution were illegal; for example, the Code does not apply to traditional flyposting (Rule II.m) or unsolicited faxes to individuals because both are mostly illegal.
If it has both a legal and an illegal use, a product may be advertised. In those circumstances, the ASA will consider the tone and message of the ad. For example, the ASA has rejected complaints about a leaflet that featured instruments for smoking marijuana because the items had legal uses (the smoking of tobacco). It considered that, however consumers chose to use them once bought, the products had a legitimate use and the sale of them did not, in itself, incite consumers to break the law. The ASA did, however, insist that pictures of marijuana leaves should be removed from the ad (All Your Needs, 9 November 2005).
Using the same principle, the ASA has upheld complaints about radar detectors that were promoted in a way that encouraged drivers to be irresponsible and break the law. Claims that invite the driver to become invisible or immune to speed traps and cameras are likely to break the Code, for example, "FIGHT BACK! MAKE YOUR LICENSE PLATE INVISIBLE AVOID COSTLY TRAFFIC TICKETS" (Photoblocker UK, 17 August 2005). Marcoms for products such as radar detectors are allowed if, for example, they promote driving safely. Radar jammers, although not illegal to sell, might be illegal to use. In those circumstances, CAP will not outlaw the advertising of such products but will ask marketers to include a prominent disclaimer that using the product might constitute an offence.
CD re-writers enable people using personal computers to copy CDs. As well as re-writers, many devices and websites use, encourage or allow users to download (mostly legitimate) music and images. Copyright laws, however, prohibit the copying of material without the permission of the copyright owner. Marketers of such devices should be careful not to encourage consumers to infringe copyright laws by stating or implying that customers may copy copyrighted works without permission. In 2001, the ASA asked a marketer to include the footnote “It is unlawful to copy material without the permission of the copyright owner” (Tiny Computers, March 2001).
More recent adjudications suggest that such disclaimers should be prominent. In 2006, the ASA investigated an in-car iPod that used a short-range FM transmitter. Smallprint stated “This product is a short range FM transmitter and may not be used in the UK with a broadcasting licence. Broadcasting licences are not normally available to consumers …”. The ASA acknowledged that selling FM transmitters in the UK was not illegal if certain regulatory requirements were adhered to but using the product in the UK without a broadcasting licence, which was not normally available to consumers, was illegal. The ASA considered that that was a significant condition and that referring to it only in the smallprint was likely to mislead consumers. Because the smallprint was not considered prominent enough, the ASA concluded that the ad could encourage the public to break the law and was irresponsible (DSG Retail Ltd, 8 November 2006).
Car marketers may state top speeds but should not portray speed in a way that might encourage motorists to drive irresponsibly or break the law (Rule 19.3).
Legal problems in advertising often involve copyright, trade marks, design rights, defamation and other aspects of Intellectual Property (IP) rights. Other subjects in which marketers should take special care are data protection (Planet Pharmaceuticals, 7 June 2006, and Rules 10.1 to 10.16), privacy (Rule 6.1), medicines advertising (Rule 12.12), prize promotions (see Sales promotions: Background), distance selling (Section 9), gambling (European Lottery Guild, 17 May 2006, and Section 16) and financial products (see Financial Products: Background).
The Copy Advice team does not give legal advice and marketers wanting it should seek specialist legal advice. The entries in this section are no more than a general introduction.
See other entries under ‘Legality’, ‘Legislation’, ‘Data Protection’, Sales Promotion’, ‘Gambling’ and 'Social Responsibility'.
Last modified : 03 August 2010