UK consumers enjoy considerable statutory protection from misleading marketing strategies. However, businesses also buy from other companies. It’s crucial that they can trust what a supplier includes in their advertising and marketing materials and be protected from false advertising.
The Business Protection from Misleading Marketing Regulations 2008 (BPRs) have been designed to prohibit misleading B2B marketing and advertising of goods or services. In this article, we set out the main points of the Regulations to help you avoid the serious penalties associated with non compliance.
What is misleading advertising?
Advertising is misleading under the BPRs if:
- It in any way deceives or is likely to deceive the traders to whom it is addressed or whom it reaches
- And because of its deceptive nature, it:
- is likely to affect their economic behaviour
- injures, or is likely to injure, a competitor
How can advertisements be misleading?
When deciding whether an advertisement is misleading under the BPRs, the Court will examine the following:
- The characteristics of the product
- How much the product cost, and how was that price calculated
- The conditions attached to the supply of the product.
- The nature, attributes, and rights of the advertiser
The BPRs provide that the "characteristics of a product" are defined by considering its:
- Availability, quantity, and specification
- Nature, execution, and composition
- Method and date of manufacture
- Fitness for purpose
- Uses and results expected from its use
- Geographical or commercial origin
- The results of any tests conducted
Under the BPRs regulation 3(5), the definition of the nature, attributes, and rights of the advertiser include its:
- Identity
- Assets
- Qualifications
- Ownership of industrial, commercial, or intellectual property rights
- Awards and distinctions
Falsely claiming intellectual property rights can also amount to misleading advertising under the BPRs.
What is comparative advertising?
Engaging in comparative advertising is legal. However, you need to understand the rules to find your business facing complaints from the public and your competitors. According to the Advertising Standards Authority (ASA), you should consider four key questions before running a comparative marketing campaign:
-
Is the claim I want to make to customers clear, and do I have documentary evidence to support it?
Unless the claim is obviously ‘puffery’, any claims that your product is superior or ‘the best’ may result in an ASA investigation as these assertions are viewed as subjective. You need to produce solid proof to show that your product is superior or better than your competitors’ offerings. -
Is the competitor you are comparing your products with identifiable?
There are strict rules concerning comparisons with an identifiable competitor, and it is unnecessary to name the competitor to commit a breach. -
Are you comparing ‘apples with apples’?
Comparative advertising must relate to products that are replaceable as far as consumers are concerned. An example would be a tin of beans with your company’s label and identical beans in a tin sold by a competitor under their branding. -
Can I verify the claims I am making?
The ASA states that comparisons with identifiable competitors must ‘objectively compare one or more material, relevant and representative feature of those products, which may include price.’ Your advertisement has to provide enough information for a consumer to understand the claims and check whether they are correct.
It is extremely easy to breach the rules of comparative advertising, so it’s crucial to seek legal advice if you are unsure whether or not your advertisement is compliant before launching your campaign.
Who can enforce the Business Protection from Misleading Marketing Regulations 2008?
In England, Wales, and Scotland, the BPRs are enforced by the Trading Standards Services (TSS).
In addition, although it does not have a duty to enforce the BPRs, the Competitions and Markets Authority (CMA) and the Gas and Electricity Markets Authority (GEMA) retain the power to do so. Under the Communications Act 2003, Ofcom has to regulate broadcast advertising.
What are the penalties for breaching the Business Protection from Misleading Marketing Regulations 2008?
The TSS can prosecute businesses that breach the BPRs’ misleading advertising prohibition. In addition, it can seek an injunction to force a company to comply with the Regulations. If you are prosecuted for misleading advertising, you can use the following defences:
- Due diligence – you can prove, beyond a reasonable doubt, that the offence was committed by mistake, due to reliance on the information supplied by another, was due to the actions or omissions of another, or resulted from circumstances beyond your control, you took all reasonable precautions, and you acted with due diligence to avoid the offence committed
- Innocent publication – in the case of an advertisement, your business publishes advertisements, and you received the ad in the ordinary course of business and were unaware that publishing it would constitute an offence
Get legal assistance from LawBite
In conclusion, complying with the Business Protection from Misleading Marketing Regulations 2008 is crucial for any business looking to advertise its products or services effectively and ethically. Breaching the regulations misleading the consumer can result in severe penalties, making it imperative to understand and follow the rules carefully. With the complexity of the rules, seeking expert legal advice is highly recommended, especially for comparative ads.
LawBite has a team of experienced commercial lawyers who can guide you through the regulations and help you achieve your commercial goals while staying compliant. To find out more book a free 15 minute consultation or call us on 020 3808 8314.
