ASA & CAP Code Update

United Kingdom

ASA to become One-stop Shop

Ofcom has proposed that broadcast advertising regulation of TV and radio commercials be transferred to the umbrella of the Advertising Standards Authority (ASA), creating a 'one-stop shop' for all advertising. Ofcom believes that the new system will be effective, adequately funded and sufficiently independent.

If it is to contract out of the regulation of broadcasting advertising, Ofcom will need to obtain Parliamentary approval which, if given, could see the new system launch in November 2004. Ofcom will monitor the system's effectiveness and also retain some powers to enforce compliance with the Codes through Ofcom's licensees, the TV and radio broadcasters. Ofcom will also be able to amend the broadcast advertising codes and reinstate direct statutory control if necessary.

Ofcom Chief Executive, Stephen Carter, said, "The UK's advertising industry through the ASA has successfully regulated its own actions in the non-broadcast environment for over 40 years. Extending that responsibility to create a 'one-stop shop' for all advertising offers real benefits to consumers and advertisers alike".

Already this year the ASA has turned away 2,500 complaints about TV and radio advertisements because they were outside the ASA's remit. Having a one-stop shop will simplify the procedure and make it easier for any concerns over advertising, in whatever medium, to be addressed.

CAP Code Updated

Following consultation by the Committee of Advertising Practice (CAP) with the Office of the Information Commissioner, changes have been made to the British Code of Advertising Sales Promotion and Direct Marketing (the Code) in order to bring it in line with the Privacy & Electronic Communications (EC Directive) Regulations 2003. The changes took effect on 4 May 2004.

Two significant changes are in relation to unsolicited electronic marketing communications and information to be provided in distance-selling marketing communications.

1. Unsolicited Electronic Marketing Communications

The March 2003 edition of the Code, which reflected the E-Privacy Directive but pre-empted the UK implementation legislation, prohibited businesses from sending unsolicited email marketing to consumers without first having obtained their explicit consent. The only exception to this was in relation to existing customers. It was unclear as to whether business-to-business email marketing was caught by this, as the Code did not differentiate between business-to-business email marketing and business-to-consumer email marketing.

The amended Code makes it clear that explicit consent is not needed when sending unsolicited emails or text messages to "corporate subscribers" (including their named employees) as long as the message promotes "business products". Therefore, the Code allows emails promoting a business product to be sent to an employee's work related email address or the corporate employer's email address.

2. Distance-selling Marketing Communications

The Code previously required that distance-selling marketing communications should be recognised as such. The amended Code now makes it clear that distance-selling marketing communications must contain the full name and address of the marketer and, if different, the supplier. The requirements change slightly depending on the mode of communication. Emails and text messages must contain enough information to enable the recipient to send an "opt out request" to the message sender. For example, messages sent by email should contain an email address to which the recipient may respond. With regard to postal communications, a geographical address, for example a full postal address should be given. CAP has suggested in its communications that a P.O. Box number may not be sufficient.

There are still differences between the language used in the Regulations and the less technical wording of the Code. Therefore anyone planning electronic marketing campaigns will need to take care to ensure that they comply with both requirements.

For further information, please contact Susan Barty on +44 (0) 207 367 2542 or at [email protected] or Lucy Kilshaw on +44 (0) 207 367 2044 or at [email protected] or Emma Burnett on +44 (0) 20 7367 3565 or at [email protected] or Lydia Watts on +44 (0) 207 367 2054 or at [email protected]