Amended CAP Code and new ASA complaints policy

Summary

On 30 April 2015, the Committee of Advertising Practice (CAP) published amendments to a number of the rules for sales promotions in Section 8 of the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the CAP Code). The majority of the amendments focus on two main areas. First, they allow promoters a greater level of flexibility when planning and carrying out their promotions. Secondly, they ensure that consumers are clearly provided with all the information they need to decide whether or not to participate in a promotion at all relevant stages.

In addition to the amendments to the CAP Code, the Advertising Standards Authority (ASA) has announced the introduction of a new policy limiting the number of points to be raised in most complaints about an advertisement or campaign to three.

The amendments to the CAP Code and the implementation of the ASA’s new policy both came into effect on 1 May 2015.

Background

CAP Code

The amendments to the CAP Code are the result of a public consultation conducted by CAP towards the end of 2014. The driving force behind the consultation was to ensure that the CAP Code’s provisions on sales promotions are aligned with the European Unfair Commercial Practices Directive (UCPD) and the Consumer Protection from Unfair Trading Regulations, which implement the UCPD into UK law. Further, CAP wanted to work with industry to ensure that the amendments were commercially viable as well as legally compatible.

ASA policy

The ASA has stated that in the instances where a complaint involves multiple points, it has been spending a disproportionate amount of time and resources to produce an outcome. This was causing an inefficiency in the way ASA utilised its resources.

What has changed?

CAP Code

Certain provisions within Section 8 of the CAP Code have been reworded and, in some cases, re-ordered to allow the CAP Code to read more logically. The amendments in Section 8 specifically relate to:

• how promoters can use estimates of likely responses;
• availability and limitations of promotional items;
• ensuring that conditions are fully communicated to consumers;
• ensuring that conditions are easily accessible and are not unnecessarily complex;
• closing dates for promotions;
• the distinction between prizes and gifts; and
• publishing details of winners of promotions.

These are all key areas where non-compliance has tendered to result in ASA adjudications. CAP has also announced that it will provide guidance on the practical applications of the amendments in due course.

ASA policy

The new policy limits ASA investigations (and therefore adjudications) on an advertisement or a campaign to three points of complaint.

What is the impact of these changes?

CAP Code

The amendments allow promoters more freedom and certainty when planning and executing sales promotions. In particular a number of complaints have related to the availability (or lack of availability) of promotional products and unexpected high response rates to promotions. The amended rules allow promoters to make it clear upfront that availability is limited and therefore avoid further additional responsibility in the event of high demand. This will undoubtedly assist companies engaging in sales promotions, where it has become increasingly difficult to estimate likely demand, whilst still ensuring that the rights of the consumers are fully protected.

The amendments also ensure that the CAP Code is up to date with the current law and will not inadvertently create an unlawful banned practice as set out in the UCPD.

ASA policy

The change in policy encourages complainants to focus on the most pressing concerns regarding an advertisement or a campaign. This will in turn enable the ASA to focus on the issues that are most likely to cause detriment or harm to consumers and the vulnerable and to conserve resources.

The ASA has emphasised that where a complaint indicates that an advertisement has broken the rules, that advertisement will be investigated. Where the ASA receives multiple complaints about the same advertisement or campaign, it has stated that it will assess the situation to see if the issues and concerns can be distilled to form one point.

The ASA has explained that it will take a flexible approach to this policy and that it is willing to consider an investigation that contains more than three points of complaint if it considers that there are merits to this approach. When an advertisement requires wider investigation, the ASA will use its new Prioritisation Principles to guide how to allocate their regulatory resources in those instances.

For any further advice on the impact of the amendments to the CAP Code of the change in the ASA policy, please feel free to contact: