We have recently received enquiries in relation to the possible impact on advertising regulation of the UK voting to leave the European Union in June’s referendum. With regard to the referendum outcome, we maintain impartiality: what follows is a disinterested assessment of the likely implications of a decision to leave in the short term. This is based on information in the public domain and the Committees’ understanding of the relationship between European legal standards, domestic UK law and the Advertising Codes.
While we cannot offer definitive views on the impact of a vote to leave, we consider that it would be unlikely to cause immediate substantive harm to the advertising self- and co-regulatory systems or require marketers to change their approach to compliance with the Codes in the short-term.
Advertising regulation in the UK is based on the well-established system of self-imposed controls implemented via CAP, BCAP and the Advertising Standards Authority (ASA). Furthermore, BCAP carries out its role under agreement with Ofcom which has statutory responsibility for broadcast regulation under the Communications Act 2003. The advertising industry chooses to exercise this self-restraint not only to make further legislation unnecessary, but also as a public demonstration of its commitment to high standards in advertising. We see no reason why these principles should not persist in the event of a vote to leave the EU. Many of the rules in the Codes have been implemented by us to address obvious needs and have little or no European context in any case.
However, in some particularly significant instances the Codes approximate or have regard to EU-originating legislation. In the majority of cases these are EU Directives which, by their nature, have had to be implemented in domestic law. For example the European Unfair Commercial Practices Directive is implemented in the UK via the Consumer Protection from Unfair Trading Regulations 2008. This legislation underpins our rules on misleading advertising and their interpretation. While it is possible that questions would be asked in due course about the justifiability of such laws they would remain in place until or unless they were repealed by Parliament.
EU regulations (as distinct from directives) apply in the UK without implementing legislation. For instance, the Regulation on Nutrition and Health Claims Made on Foods applies Europe-wide and requires that only claims approved on an EU register can be made for food products. These requirements are reflected in the “Food” sections of the Advertising Codes. The UK’s obligation to comply with such regulations would persist until it actually left the EU. That would probably be at least two years and potentially much longer.
In the event that the UK votes to leave the EU, marketers should continue to comply with our rules which would remain in effect and enforced by the ASA until the Committees announce otherwise.
In the meantime, the UK Government has published a document entitled “The process for withdrawing from the European Union”, which can be found here. We would begin dialogue with the UK government to understand the full implications for advertising regulation and make any announcements via our website and Update newsletter.