In April, CAP and BCAP (the bodies that write the advertising Codes enforced by the ASA) introduced amendments to their rules to reflect new UK consumer law – the Unfair Commercial Practices provisions in the Digital Markets, Competition and Consumers Act 2024.
The UCP provisions update and replace the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs). However, the key principles of misleading advertising underpinning the Codes remain largely the same, with some slight changes to wording and definitions and the addition of new prohibited commercial practices.
The changes are subtle and, in most cases, do not result in the ASA taking a significantly different approach than it did previously, although certain positions have been strengthened.
Here are some key points to be aware of:
Toughening standards to prevent drip pricing
Under rule 3.4, where an ad features a price, advertisers should ensure that they are quoting the total price - inclusive of all fees, taxes, charges or other payments that the consumer is unable to avoid if they purchase the product.
If the whole or any part of that price cannot be calculated in advance, due to the nature of the product, then advertisers must include information about how the price, or that part of it, will be calculated. This information must be as prominent as the total price.
More information on how to determine whether a fee is mandatory or optional, and whether it genuinely cannot be calculated in advance owing to the nature of the product, can be found in the CMA’s guidance on the UCP provisions.
Ban on fake reviews
New rule 3.44 bans fake reviews – these are reviews that purport to be, but are not, based on a person’s genuine experience of a product or service.
Rule 3.45 states that ads that include reviews must make clear where reviewers have been given an incentive to leave a review. That could include payment of an influencer to make content reviewing a product or offering consumers a voucher or entry into a prize draw if they leave a review. Such reviews must be clearly labelled to ensure consumers understand the context.
Incentivisation is only acceptable when the incentive is not dependent on providing a positive review. Consumers must still be free to leave a review reflecting their true experience.
Finally, rule 3.46 states that advertisers must not publish consumer reviews, or information derived from them, in a misleading way. This can include practices such as suppressing negative reviews or giving positive ones more prominence.
Please note that the ASA’s pre-existing rules on testimonials (which include consumer reviews) continue to apply. These rules are now numbered 3.47-3.54.
Vulnerable consumers
Under the new legislation, ads do not have to be targeted solely at a vulnerable group to be considered from the perspective of that group when determining whether they are likely to mislead. Consumers may be more vulnerable as a result of their age, credulity, physical or mental health or the circumstances they are in (among other things). So, an ad aimed at a general audience could be considered by the ASA from the perspective of the average consumer with a physical disability, if there was reason to believe that it could have a particularly misleading impact on that group due to their characteristics. Be mindful of the impact your ad may have on vulnerable groups of consumers – could it be more likely to mislead specific groups?
ASA web resources such as guidance and Advice Online affected by changes to the rules are in the process of being updated.
Please contact Copy Advice for advice on specific advertising copy.
More information on the ASA’s enforcement of the new rules can be seen here.
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