The new rules are not law. Instead, they are found in the 11th
edition of the CAP Code, produced by the UK's Committee of
Advertising Practice. The CAP Code sets out the rules administered
by the Advertising Standards Authority (ASA), governing the content
of UK non-broadcast marketing communications. Although lacking the
force of legislation, for reasons explained below, the Code should
be followed by all businesses.
The new edition of the CAP Code takes account of, and refers to,
emerging new media and has been substantially redrafted to clarify
many sections so that marketers have a better idea of the rules
they need to follow to ensure that their marketing is legal,
decent, honest and truthful.
Explicit consent
The rule that explicit consent is now required for marketing by
e-mail or text messages unless marketers are offering similar
products to existing customers reflects provisions of the Directive
on Privacy and Electronic Communications. This Directive was passed
by the EU in 2002, although it does not need to be implemented into
the UK until the end of October 2003.
Disclosure
Immediate disclosure is required if e-mails contain direct
marketing – in compliance with the E-commerce Regulations of 2002.
Also following the provisions of these Regulations, legitimate
unsolicited e-mail marketing communications must now be clearly
identifiable as such without the need for recipients to open
them.
Media covered
The CAP Code covers, amongst other things, on-line banner ads
and pop-ups, moving image posters, SMS and marketing e-mails. It
does not cover companies' own claims on their web sites.
Arguably, the Code's wording is out of date already. It refers
specifically to SMS (short message service) text messages – at a
time when photo messaging is already available via MMS (multimedia
message service) and widespread adoption of 3G services is
anticipated. It seems unlikely, however, that the Code will be
interpreted to exclude these more recent technologies.
Following the implementation of distance selling and data
protection legislation in the last five years, the rules on
distance selling and the use of consumer databases for direct
marketing purposes have been updated and expanded. The changes
include a requirement that distance selling marketing
communications must include a statement telling consumers that they
have the right to cancel orders, unless this is inapplicable.
Overhaul of sales promotion rules
The sales promotion rules have been clarified and the layout
simplified. The changes include increased protection for the word
"free" – so, for example, the Code states that the unavoidable cost
of responding to the promotion by e-mail or text message should be
clarified.
In force
The new Code, which has been endorsed by the OFT, takes effect
on marketing communications produced on or after 4th March 2003.
The ASA will consider complaints under the old Codes until 4th June
2003, giving the marketing business three months to make the
transition from old to new.
Penalties for non-compliance
Breaking the CAP Code is not a criminal offence. However, the
ASA and CAP are not powerless. In the event of a finding that the
Code has been not been followed, companies will normally act
quickly to make any changes necessary to comply. For the minority
that do not, a range of sanctions operate to ensure compliance with
the Code.
First, upheld cases of non-compliance often receive extensive
adverse media coverage. This not only informs the public that a
marketer has misled or caused offence but also acts as a real
deterrent to other companies.
Second, it is a prerequisite for membership of the trade and
professional associations in CAP to comply with the CAP Code, so
publishers and media owners may refuse further space for an
advertisement that breaks the Code. CAP sends out an Ad Alert to
its members to warn them of those companies that have chosen not to
co-operate with the ASA. Advertising space can then be denied until
the required changes have been made.
Third, the trade and professional associations in CAP may remove
concessions or incentives associated with membership of that
association, or withdraw commission paid on placing advertisements.
This could significantly increase the costs associated with a
campaign to the point of jeopardising it.
Finally, the ASA can refer a marketer, agency or publisher to
the Director General of Fair Trading (at the OFT) under the Control
of Misleading Advertisements Regulations 1988. The OFT can obtain
an order through the courts to prevent advertisers from using the
same or similar claims in future marketing communications.
The new CAP code is available in PDF format from:
www.asa.org.uk/the_codes/downloads/Bcasp_11.pdf
