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.
What does the CAP Code say?
The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) applies to all non-broadcast advertising in the UK. A section titled Scope of the Code explains the types of advertising the ASA is permitted to regulate. This section states:
II The Code does not apply to:
o. political advertisements as defined in Section 7
The rules in Section 7 (Political advertisements) are as follows:
7.1 Claims in marketing communications, whenever published or distributed, whose principal function is to influence voters in a local, regional, national or international election or referendum are exempt from the Code.
7.2 Marketing communications by central or local government, as distinct from those concerning party policy, are subject to the Code.
What do the Code rules mean?
In order to understand how the CAP Code rules apply in practice, there are several points that are particularly important to consider.
When the ASA assesses whether political claims in an ad are exempt from the CAP Code, the assessment is based on the nature and function of the claims themselves, and not on the identity of the individual or organisation who placed the ad.
For ads to be deemed as containing ‘political’ claims exempt from the CAP Code (and therefore not regulated by the ASA) the following points must all apply:
- The claims are related to a “a local, regional, national or international election or referendum”
- Their function is to “influence voters” in the election/referendum
- This is their “principal function” [emphasis added]
In practice, then, if claims in an ad correspond in some way to an election or referendum, but influencing voters in this election or referendum is not their principal function, the CAP Code will apply. For example, if an ad for a commercial product refers to an election in order to be topical, but the principal function of this reference is to sell the product rather than to influence the outcome of the election, the ASA would still be able to apply the CAP Code to the ad.
If influencing voters in an election is the claim’s principal function, the CAP Code will not apply, and the ASA will not regulate it.
The Code rule doesn’t specify a particular way in which voters must be ‘influenced’, and it does not state that an election/referendum must have been called or confirmed for a particular date, or that it must be referred to explicitly in the ad.
The same test applies whether the ad in question has been published by an individual, a commercial business, a charity, a political party, an interest group or any other type of organisation.
What is the reason for this exemption?
Following the 1997 General Election, the Committee of Advertising Practice (CAP) made a decision to exclude political advertising from the ASA’s remit on the basis of several factors, which are explained in further detail in the following article:
What about Broadcast ads?
Legislation referred to as the Communications Act 2003 prohibits political advertisements from being broadcast on TV and radio, and this legislation is enforced by Ofcom.