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.
Although 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, where appropriate, may go beyond the law. In some places it specifically refers to legislation (for example, in financial advertising or food and nutrition claims) 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 or unsolicited faxes to individuals because both are mostly illegal.
Marketers should ensure that the product or service advertised is legal. In 2011 the ASA upheld a complaint about an online ad targeting UK consumers that offered weapons that could not be legally imported into the UK. The ASA ruled the ad was irresponsible because it encouraged UK consumers to break the law by importing these prohibited weapons (CODE09, 3 August 2011). In a similar case a complainant objected that an ad offered an electric dog collar that was illegal in Wales. In this case the ASA accepted that the product could be advertised because it was legal in the rest of the UK, but instructed the advertiser to clearly state that the product was illegal in Wales (The-Sleeping-Giant, 5 September 2012).
Encouraging illegal behaviour
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.
Ads do not necessarily have to link a specific product with illegal behaviour to breach the Code. In 2012 the ASA investigated a Greenpeace ad that promoted the painting of power station chimneys as a form of protest and requested donations to support the cause. The ASA considered that the ad encouraged and condoned defacing property, which would in some circumstances be illegal. It concluded that the ad was harmful and irresponsible and upheld the complaints (Greenpeace, 16 May 2012).
The Copy Advice team does not give legal advice and marketers wanting it should seek specialist legal advice.See Anti-social behaviour, Social Responsibility, Copyright, Sales promotions: Lotteries.