As we approach the run-up to Black Friday and Cyber Monday, businesses will likely be in the final stages of preparing their advertising and marketing campaigns. Last year on Black Friday in the UK, a whopping £1.4 billion was spent on online sales. For businesses to make the most out of this high-profile, busy sales period and retail event of the calendar year, it is imperative to take note of legal restrictions and ensure that your promotional material complies with the UK’s rules and regulations regarding advertising and marketing.
GDPR: rules for advertising materials
- Include an accurate description of the product or service. This includes ensuring your prices are accurate and include any taxes (such as VAT) and any related subscription fees
- Ensure that all advertising materials are:
- Socially responsible, and not encouraging illegal, unsafe or anti-social behaviour
In particular, it is imperative that businesses do not mislead or harass customers. The rules and regulations prevent businesses from advertising using false or deceptive messages, leaving out important information and using aggressive sales techniques.
From a competition perspective, you must also remember that you are not permitted to compare your product with that of a competitor, where their product is not the same as yours. As a wider point, businesses should not make misleading comparisons with competitors, and cannot use a competitor’s logo or trademark.
Broadcasting or non-broadcasting?
Depending on whether you market to clients via non-broadcast advertising (print, online, telesales, email marketing, etc.) or broadcast advertising (TV and radio), will determine which rules you have to comply with. For both broadcast and non-broadcast marketing, you must be careful to abide by rules on pricing, particularly the use of the word ‘free’. Both types of advertising must also be clear in terms of availability of products, comparisons and testimonials. Businesses must be careful about rules relating to causing harm and offense, particular requirements for advertising to children, political adverts and shock tactics. And for broadcast advertising, a key factor to remember is loudness of adverts.
Some examples of rules to be aware of are:
- Obvious exaggerations are allowed, provided they do not mislead and it wouldn’t be reasonable for a consumer to believe them
- Adverts must not omit material information or present that information in an unclear or untimely way
- Children cannot be encouraged to enter strange places, talk to strangers or be shown hazardous situations
- Adding “subject to availability” to your advert doesn’t remove your duty to do everything reasonable to avoid disappointing customers
- If you are advertising a prize draw, it is reasonable for the prize to be awarded within 30 days
In addition, there are specific rules relating to food, alcohol, beauty products, medicines, tobacco and environmentally-friendly products. Businesses selling these types of products should be aware of these rules. If you operate in one of these industries and are unsure of your specific obligations, please contact a member of the LawBite team for further information.
Some recent examples
To give you an example of how these rules can function in practice, note the recent Vodafone case. The Advertising Standards Authority (ASA) banned a Vodafone advert because it misled customers to believe that they could leave their phone contract at any time. In reality, Vodafone only permits customers to cancel within the first 30 days of their new contract. This advert was banned after only 11 complaints.
And just a few weeks ago, it was announced that Eurostar and Gatwick Express were ordered by the ASA to change their adverts. The Eurostar online advert stated that tickets were available “from as little as £29”, but someone who complained said they could not find that price online. The Gatwick Express advert stated that the express service travels “non-stop to Victoria station in half an hour”. Only 79% of trains made the journey on time.
Finally, B&M had their marketing material banned in March of this year for advertising a prosecco glass that can hold a full bottle of prosecco, for going against health guidelines and implying “it was acceptable for one person to consume an entire bottle of prosecco in one sitting”.
Whilst all of these recent headlines affect large companies, the ASA can become involved with adverts for any company. Becoming involved with the ASA could result in losing time and resource to dealing with the issue, as well as reputational damage. If businesses don’t cooperate with the ASA, they can be referred to Trading Standards or Ofcom, and may receive further sanctions, including a fine.
If you have any concerns about your advertising material in the lead up to Cyber Week, you can contact the author of this article, expert LawBrief Barbara Jamieson. For any further business legal advice feel free to get in touch with the LawBite Team by entering an enquiry or call us today on 020 7148 1066 to speak to a member of our friendly Client Care Team.