Advertising and Marketing 2024 Comparisons

Marketing and advertising are subject to a combination of regulations (general and industry-specific), laws, codes of practice and guidelines.

The Regulatory System

The primary regulatory controls are set out in two regulatory codes of practice:

• the CAP Code (for non-broadcast advertising); and
• the BCAP Code (for broadcast advertising) (together: the “Codes”).

Each of the Codes is administered and enforced by the Advertising Standards Authority (ASA). The CAP Code is a self-regulatory code, written by the industry (by the Committee of Advertising Practice, or CAP) and enforced by the ASA. The BCAP Code is also administered and enforced by the ASA, partly under delegated authority from Ofcom (the communications regulator) in respect of television and radio advertising.

Ofcom retains some regulatory oversight for television and radio advertising (including product placement).

Industry-specific regulators are responsible for marketing communications within those industries, imposing restrictions on advertising certain products and services via applicable legislation, including the Financial Conduct Authority (FCA) under the Financial Services Act for financial services and products, and the Medicines and Healthcare Products Regulatory Agency (MHRA) for medicines under the Medicines Act.

The use of personal information in marketing communications is regulated by the Information Commissioner's Office (ICO). The Gambling Commission has regulatory oversight of the Gambling Act (regarding prize competitions).

Law

There is no codified “marketing and advertising” law in the UK. The applicable laws are a combination of statute and common law, which relate to different aspects of the industry, as follows.

• Intellectual property laws are key issues in creative content, in particular registered and unregistered trade marks/passing off, copyright and designs (especially on product packaging).
• Consumer protection is regulated by the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) and the Consumer Rights Act 2015 (CRA). The Digital Markets, Competition and Consumers Act 2024 (DMCCA) will replace and enhance the CPRs and introduce new and powerful enforcement measures for consumer protection and unfair trading in late 2024/2025.
• Data protection: the use of personal information, especially in electronic marketing, is governed by the UK General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018 (DPA), and by the Privacy in Electronic Communications Regulations (PECR).
• The Gambling Act regulates the legality of prize competitions or “sweepstakes”.

The law of defamation and privacy may be relevant where advertising features recognisable individuals.

Best practice is set out in a number of industry codes of practice published by industry associations to which member organisations agree to be bound.

ASA

The ASA is the principal regulatory authority. It is responsible for the enforcement of the Codes and handles complaints from consumers and competitors. It has the power to request (but not compel) the removal or modification of non-compliant advertising and the withdrawal of certain privileges (eg, trading privileges on direct mail). It publishes its rulings on a weekly basis; notable rulings are frequently published by national and trade press and, in practice, the ASA's principal “power” is the negative publicity associated with the publication of such adverse rulings, which can have a significant impact on brand reputation and trust, especially when dealing with issues such as misleading advertising or social responsibility.

The ASA publishes a list of repeat offenders and may refer egregious cases to the Competition and Markets Authority (CMA) or Trading Standards bodies, which have the power to investigate and may take action on misleading marketing practices that violate consumer protection law. Action may be taken through the civil courts by way of an enforcement order, or criminal action through the Magistrates Court where criminal liability arises. Criminal conviction may lead to fines of up to GBP5,000 or imprisonment of up to two years.

CMA

In recent years, the CMA has taken particular interest in transparency in influencer marketing, deceptive online reviews, misleading pricing practices by supermarkets and greenwashing.

Under the DMCCA, the CMA (and other public bodies) will be given additional enforcement powers, with the ability to take direct action (rather than having to go through the court) and impose penalties of:

• up to 10% of annual global turnover or up to GBP300,000 for breach of consumer protection law;
• up to 5% of turnover or GBP150,000 for breach of binding undertakings; and
• up to GBP30,000 for individuals.

Additional penalties may be imposed for ongoing breaches and for providing misleading information. The CMA may also award affected consumers compensation or rights to cancel. A new consumer enforcement body – the Consumer Association – will also be created. These rules are expected to come into force in April 2025. Draft guidance has been published by the government, and CAP will be consulting on any necessary changes to the Codes.

ICO

The ICO has regulatory oversight of data protection law and electronic marketing (email, SMS, etc). Its general approach is to encourage compliance through education and guidance, but it has power to impose fines and enforce undertakings to compel change. The ICO cannot award damages to affected individuals or businesses (claimants must go through the courts to obtain damages).

Advertisers are primarily responsible for deceptive advertising published by them or on their behalf (including via affiliate marketing). Other entities involved in the creation or distribution of deceptive advertising may also be held responsible (such as creative agencies, publishers and affiliates).

Influencers and endorsers (particularly on social media) may face liability (alongside brands) if they fail to disclose commercial relationships with brands or otherwise breach the Codes or break the law.

Consumer protection law may impose criminal liability on all those engaged in misleading marketing practices; this can include trading companies and responsible directors if they have committed or allowed a criminal offence to occur.

Advertising is not defined in the Codes, which instead list the types of marketing communication that fall within the ASA's remit, including marketing communications in television, radio, cinema, print, online (excluding purely editorial content), social media, email marketing, direct mail and promotional marketing. Certain types of communications fall outside the ASA's remit, such as product packaging (unless part of a promotional offer), in-store displays and purely editorial content. Online content is within remit where it is “directly connected with the supply or transfer of goods, services, opportunities and gifts … solicitations of donations etc”. The remit excludes press articles (unless in the form of paid advertorials), private classified ads and financial promotions (regulated by the FCA). Where not within the ASA's remit, other regulators like Ofcom, Trading Standards or industry-specific bodies may have authority.

Regulation 2 of the Business Protection from Misleading Marketing Regulations 2008 defines advertising as “any form of representation which is made in connection with a trade, business, craft or profession to promote the supply or transfer of a product”.

Section 9 of the Ofcom Broadcasting Code, which principally focusses on in-programming advertising, defines “commercial references” as “any visual or audio reference within programming to a product, service or trade mark (whether related to a commercial or non-commercial entity)”.

The Ofcom Code on the Scheduling of Television Advertising defines “television advertising” as “any form of announcement broadcast whether in return for payment or for similar consideration or broadcast for self-promotional purposes by a public or private undertaking or natural person in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property rights and obligations, in return for payment”.

Generally, no mandatory pre-approvals are required from government authorities or self-regulatory bodies. Certain industries may require pre-approval, such as pharmaceuticals, financial services and gambling.

Television and cinema ads require pre-approval from Clearcast and the Cinema Advertising Association respectively, and special categories of radio ads (including for gambling and alcohol products) require approval from Radiocentre before the media owners will permit them to be broadcast. Clearcast is owned by the major UK commercial broadcasters and is responsible for vetting and approving television advertisements to ensure compliance with the BCAP Code before broadcast. Clearcast will conduct reviews on scripts and finished ads to ensure compliance and to ensure that verifiable claims are substantiated with appropriate evidence. Pre-approval is mandatory but approval is not a guarantee of compliance; advertisers may still be subject to legal proceedings or an adverse ruling by the ASA if the ad is later found to breach the Codes. CAP operates a voluntary non-binding pre-publication clearance service.

Advertising content must comply with IP laws, particularly the law on trade marks and passing off, designs (registered/unregistered) and copyright. IP rights are frequently relied on by competitors and in copycat product claims.

The UK does not have a standalone “right of publicity” but unauthorised use of an individual's name, image or likeness may lead to claims of trade mark infringement or passing off (false endorsement) or (depending on context) breach of an individual's rights of privacy (where there is a reasonable expectation of privacy), or copyright infringement (where copyright in the underlying work is owned by a third party). Such use may also infringe an individual's rights under data protection legislation. Legal cases (for passing off) have involved famous sports people (Eddie Irvine) and popstars (Rhianna).

The BCAP Code requires consent to be obtained before featuring or referring to an individual in advertising, but this is not a strict requirement under the CAP Code unless there is an unfair portrayal or implied approval of an advertiser's product or service.

There are limited (and closed) fair dealing defences to copyright infringement, which may apply in certain circumstances, including the defences of “caricature, parody or pastiche” and “quotation”. These are relatively untested in the English courts.

The law of defamation may be relevant if an individual is associated with a product or service that could damage their reputation and that association is likely to cause them serious harm.

Unauthorised use of third-party IP rights may lead to claims of infringement and liability for damages or an account of profits, and the possibility of an injunction to prevent ongoing use of the infringing content.

The Codes are administered by the ASA and require that all advertising is “legal, decent, honest and truthful”. They include general rules regarding misleading marketing, social responsibility, harm and offence, and specific rules on issues such as marketing to children, gambling and environmental claims.

The ASA responds to complaints from consumers and businesses regarding advertisements that fall within its remit. The ASA may also take action of its own volition, and will often focus on particular industries or practices in response to consumer protection concerns or wider societal issues.

Complaints may be resolved informally (often following agreement to amend or withdraw the advertisement) or formally (through a complaints process leading to published rulings).

The ASA cannot impose fines nor compel any particular action, but can refer offenders to other authorities, such as the CMA or Trading Standards. The ASA's principal enforcement tool is the risk of adverse publicity arising from an adverse ruling. It works with media owners to prevent ongoing publication of non-compliant advertising or to compel pre-clearance for future advertising by the brand, with search engines to restrict paid-search advertising, and with social media platforms to disable access to non-compliant content.

Consumers have certain rights to take private action regarding misleading advertising, and may pursue legal action for misrepresentation if they are induced into entering a contract by misleading or deceptive advertising. They might also be able to claim breach of contract if a business fails to deliver on promises made in its advertising. Remedies available include damages to compensate for financial losses, refunds and rescission, which allows consumers to cancel contracts based on misleading advertising. In some cases, injunctions may also be obtained to stop ongoing deceptive practices.

Consumers may report breaches of the CPRs to regulatory bodies like the CMA. However, private legal action is limited under the CPRs and is difficult in practice, and there is currently no right to damages or compensation (other than through court action).

Consumers can also turn to various ombudsmen services for certain regulated industries. For example, for financial services disputes, the Financial Ombudsman Service can award compensation and require businesses to correct their mistakes. This can offer a quicker and more accessible alternative to court action for financial-related complaints.

The DMCCA will increase the CMA's enforcement powers (see 1.2 Enforcement and Regulatory Authorities).

The last 12 months have seen a continuing focus on health, online safety and transparency, environmental claims and greenwashing, and ongoing discussions regarding the regulation of AI. Online safety has come to the fore with the Online Safety Act 2023 (OSA), increased scrutiny on dark patterns and harmful online choice architecture, regulatory action regarding deceptive financial promotions and crypto advertising, and concerns around brand safety within the programmatic media buying ecosystem. Transparency remains crucial, with regulatory attention on cookie compliance, the use of AI, ongoing issues around the disclosure of commercial relationships by influencers and (more recently) misleading pricing (including dynamic pricing).

The DMCCA will mark a significant shift in enforcement of (and thus compliance with) consumer protection laws.

Advertisers must be sensitive to various cultural and taste concerns to avoid causing offence or breaching regulations. These include the following.

Gender Representation

The ASA has been particularly vigilant on gender representation following its 2019 ban on harmful gender stereotypes in advertising, and this remains an area of hot debate. In 2023, a Calvin Klein ad featuring FKA Twigs faced initial backlash for being overly sexualised and objectifying women, sparking complaints leading to an ASA investigation. The ASA initially ruled that the ad breached rules on social responsibility and harm and offence but re-evaluated parts of its ruling after intense public debate, citing the “strength of public feeling”.

Gambling

Several gambling ads have been subject to adverse ASA rulings for failing to adhere to guidelines that require that such advertising should not appeal to those under the age of 18.

High Fat, Salt and Sugar (HFSS) Foods

In light of concerns regarding obesity, ads promoting HFSS foods face ongoing scrutiny. Brands have also been penalised for placing HFSS ads in content likely to appeal to younger audiences. From October 2025, junk food advertising will be banned in paid-for online advertising and on television before the 9pm watershed.

Broader Cultural Sensitivities

Advertisers should also note the Obscene Publications Act 1959, which, subject to certain requirements, makes it illegal to publish or distribute material considered to “deprave or corrupt” those encountering it.

Other cultural concerns also need to be considered, such as representations of race, religion, gender, sexuality and disability, all of which must be handled sensitively. Content that is perceived as offensive or reinforcing harmful stereotypes can lead to significant public backlash and regulatory scrutiny.

In July 2024, the Labour Party was elected to government for the first time since 2007, marking a significant shift in the political landscape. The new government has recognised the importance of and indicated support for the creative industries. With its initial legislative focus, the government has demonstrated a willingness to intervene in many areas of public life, and has outlined a number of measures it intends to implement in the marketing sphere, particularly relating to public health and safety.

• Restrictions on junk food advertising: as noted in 1.10 Taste and Cultural Concerns (in addition to existing restrictions regarding the advertising of HFSS products), advertising of so-called “junk food” will be prohibited outright in paid-for online advertising and before the 9pm “watershed” on UK regulated television and on-demand programme services, with effect from October 2025.
• Vaping and nicotine products: there is a proposal to impose a ban on forms of advertising of vaping and nicotine products that appeal to children.
• Digital advertising: it is currently unclear what approach the new government intends to take towards regulation of the digital economy more widely, and advertising in particular.

Under the CPRs, an advertisement is considered misleading if it provides false information, omits critical facts or is likely to deceive consumers regarding the nature, characteristics or price of a product or service. These principles are reflected in the Codes. Claims are actionable under the CPRs if the misleading advertising is likely to cause a change in consumer behaviour (eg, buying a product).

Claims that cannot be objectively measured, such as opinions or “puffery”, are typically not regulated unless they are likely to mislead. Otherwise, all advertising claims, whether express or implied, must comply with the Codes. Objective claims (express and implied) must be verifiable and substantiated with evidence. Regulators have paid particular attention to vague claims like “natural” or “sustainable”, “green” and “healthy”, increasingly demanding evidence to back up such assertions.

The CAP Code requires objective claims to be supported by sufficient documentary evidence; such evidence is to be held by the advertiser before the claim is published and provided upon request to the ASA, Trading Standards or the CMA. If a claim cannot be sufficiently substantiated by appropriate evidence, it is likely to be deemed misleading (and therefore a breach of the CAP Code or the CPRs). The type of evidence that is required will depend on the particular claim being made and the product sector. For example, claims about product performance, environmental impact or health benefits would need to be supported by empirical evidence such as scientific studies, clinical trials or independent expert verification.

Product demonstrations must accurately reflect performance under normal usage conditions. Misleading demonstrations, where products are shown to perform better than they do in real-world settings, are prohibited. Advertisers must ensure that demonstrations do not give consumers an unrealistic impression of the product's capabilities.

Endorsements and testimonials must be genuine and reflect the honest opinions or experiences of the individuals featured. Advertisers must hold documentary evidence that a testimonial or endorsement is genuine and hold contact details for the person who gives it. Signed and dated proof is likely to be considered acceptable documentary evidence. Advertisers should always seek permission before using a testimonial from a customer or consumer. Paid-for endorsements or testimonials must clearly disclose the nature of the commercial relationship (see 5. Social Media Influencer Campaigns and Online Reviews regarding influencer marketing campaigns).

Under the CAP Code, ads “must be obviously identifiable as such”. Consumers should be able to recognise that something is an ad, without having to click or otherwise interact with the content. Disclosures must be clear, unambiguous and prominently placed. Disclosures are required to ensure transparency in claims and pricing, and their effectiveness can determine if a message would be deemed misleading or otherwise non-compliant. The ASA states that, where legal lines are used (linked-to via an asterisk in the body copy), they should qualify and support, rather than contradict, the main message. There are particular rules around advertorials, where disclosures such as “Advertisement Feature” or “Advertisement Promotion” should be used, according to guidance from both the ASA and the CMA.

There are also particular rules in the Ofcom Broadcasting Code and the BCAP Code – eg, around the separation of editorial and advertising, the signalling of product placement by means of a universal neutral logo and the prohibition of “surreptitious advertising”.

In 2019, the ASA introduced new rules to restrict ads that reinforce harmful gender stereotypes. These rules and related guidance aim to prevent ads from perpetuating negative or harmful stereotypes based on gender, race, age or other protected characteristics.

Recent rulings have targeted ads portraying outdated gender roles or offensive racial depictions. In 2023, the ASA published guidance on avoiding racial and ethnic stereotypes after several adjudications against ads which it found mocked or insensitively depicted particular ethnic groups. The ASA continues to address complaints regarding representation, ensuring ads promote inclusion and avoid discriminatory content.

Environmental claims (“greener”, “cleaner”, “carbon neutral”, etc) are heavily regulated under the Codes and other legislation, including the CPRs. Claims about the environmental impact of a product must not be misleading, must be substantiated with credible evidence, and must not make vague or unverified “green” claims. In recent years, several high-profile companies have been sanctioned for making unsubstantiated claims about sustainability, recycling or carbon neutrality. The CMA has issued a “Green Claims Code” to ensure that environmental claims are clear, accurate and not misleading. Product claims must take into account the whole product lifecycle, and claims regarding a business must take account of all aspects of that business (including, for example, its investment strategy).

Dark patterns – techniques designed to manipulate consumers into taking actions they may not otherwise take – are increasingly being scrutinised in the UK. They often appear as deceptive design elements in digital advertising or service functionality intended to mislead, pressure or confuse consumers into making purchases or signing up for services. Not all such techniques will amount to “advertising” and, if not, they will not fall within the remit of the ASA. The ASA has remit over misleading claims – eg, regarding price reductions, countdown timers, drip-pricing and subscription traps.

Dark patterns are also likely to implicate consumer protection regulation, including the CPRs, the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (CCR) and the CRA. The CMA has published an open letter with further examples and taken action against businesses using such tactics. The DMCCA will designate practices such as drip-pricing and hidden fees as automatically unfair, and the Secretary of State may specifically add “dark patterns” to such “blacklist”.

Advertising to children is subject to stricter regulations under the CAP Code, which sees a child as anyone under the age of 16. The CAP Code requires that ads aimed at children do not exploit their credulity and vulnerability, nor encourage poor nutritional habits, lifestyles or “pester power”. Advertisements for HFSS products are subject to timing restrictions, ensuring they are not targeted at children. The past year has seen significant political and regulatory focus on protecting children, leading to tighter restrictions on HFSS product advertising, more robust enforcement actions by the ASA and additional protections under the OSA. The OSA requires that online platforms prevent children from accessing age-inappropriate and harmful content, which includes some advertising. Under the CPRs, there is an automatic prohibition on advertising that seeks to encourage pester power.

Data protection legislation treats anyone under the age of 13 as a child, and requires processing to be fair and clear, have a lawful basis and not exploit children's vulnerability.

Sponsored and branded content must be clearly identified as such. Advertisers must make it clear when content is paid for or sponsored, using clear and prominent disclosures to avoid misleading consumers. This is a significant issue in social media marketing (see 4. Social/Digital Media).

There are particular rules around advertorials, where disclosures such as “Advertisement Feature” or “Advertisement Promotion” should be used. Failure to appropriately identify an advertorial is both a breach of the CAP Code and an automatically unfair practice under the CPRs. Product placement is also regulated on Ofcom-regulated television channels with signalling requirements (via a recognised logo) before and after the show and briefly in the ad break, in relation to commissioned programming.

Other regulated claims – such as “natural”, “organic” or “made in [Country]” – are subject to specific rules under the CAP Code. As always, claims must be accurate and properly substantiated with evidence. Misleading claims about a product's origin or natural ingredients can lead to regulatory action, especially if they create a false impression of quality or ethical production standards. Over the last year, the ASA has issued rulings against several companies for making unverified claims about their products being “free from” certain ingredients or produced under specific ethical standards.

Comparative advertising must comply with the Business Protection from Misleading Marketing Regulations 2008 (BPRs), which are reflected in the Codes. A comparative claim is one that explicitly or by implication identifies a competitor or their goods and services. Claims such as “the best” might amount to a comparison with all relevant competitors.

To be lawful, such a claim must:

• not mislead in a way that is likely to affect the economic behaviour of consumers or injure the competitor (eg, misleading regarding the characteristics of the goods or services or how prices are calculated);
• compare like with like – ie, compare goods or services meeting the same needs;
• be an objective comparison of one or more material, relevant and verifiable features of the goods or service; and
• not denigrate or discredit the competitor, nor take unfair advantage of the reputation of the competitor's brand.

Comparative claims must also comply with IP laws (particularly trade mark law) and other laws, including defamation, malicious falsehood and potentially economic torts such as unlawful interference.

Use of a trade mark in a comparative claim will expose the advertiser to liability for trade mark infringement, unless the advertiser complies with the BPRs, which will provide a defence to such a claim. Unauthorised use of a competitor's logo and packaging could give rise to claims for copyright infringement. Fair dealing defences such as “caricature, parody or pastiche” and “quotation” are unlikely to be available for comparative claims. Copycat products and services have been the subject of several court decisions in 2023/2024.

Under the Codes, advertisers may challenge advertising claims made by competitors, subject to compliance with the ASA guidance on inter-party resolution of complaints.

Before making a complaint to the ASA, complainants must first attempt “in good faith” to resolve the issues directly with the competitor. The competitor should respond within five days; if they do not, or if the complainant considers that any response inadequately addresses the complaint, the complainant may then complain to the ASA. The complaint to the ASA should not raise issues that are not raised with the competitor, and the complainant must confirm that they are not also taking legal action in relation to the same issues. Competitors should not circumvent these rules by posing as consumers.

In applicable sectors, challenges can be raised with industry regulators such as the FCA and MHRA, each of which may have greater powers than the ASA to enforce compliance.

There are no special rules related to ambush marketing. Event owners will seek to protect themselves (and the rights of their commercial partners) against ambush marketing through registered trade mark rights and the law of passing off (false endorsement) and other IP rights. High-profile national events may be the subject of event-specific legislation, as was the case for the London Olympic and Paralympic Games in 2012 and the Commonwealth Games in 2022. There is specific legislation protecting the Olympic indicia, and the Royal Insignia.

Online and social media advertisements come within the ASA remit where communications are “directly connected with the supply or transfer of goods, services, opportunities and gifts … solicitations of donations etc”. This may include the brand's own website, social media channels, “affiliated” or “advertorial” posts published by influencers, and online review sites where content has been adopted by the brand. Rules on transparency and disclosure are particularly important in social media advertising; advertisers must clearly indicate when a post is a paid promotion and where there is any kind of commercial relationship. Advertisers must comply with the platform's own terms and conditions.

Advertisers will be responsible for third-party content appearing on their own channels where they have invited, adopted or promoted such content, or have moderated such content (eg, by filtering out negative feedback) other than for harmful or offensive content. This may also apply where the advertiser has interacted with or adopted content on third-party platforms (eg, online review sites). In that case, the advertiser must ensure that the content complies with the Codes and other relevant laws as if it were their own. This can be problematic since the line between personal and commercial posts online is often blurred.

Where an advertiser uses third-party content without permission, the owner may take action against the advertiser for copyright or trade mark infringement and/or passing off.

The CAP Code requires that any paid promotion or endorsement on social media must be clearly and prominently disclosed and must not mislead consumers. Appropriate labels are required even in space-constrained advertisements like those on X (formerly Twitter), TikTok or Instagram. Labels such as #ad must be positioned so that they are easily visible to consumers before they engage with the content. Where a brand is running a sales or prize promotion online or in social media, or making a pricing or other claim, the ASA will still require the disclosure of exclusions, restrictions or key terms that could influence a consumer's engagement with or understanding of such promotion or claim. Disclosures should be clearly visible or easily accessed (eg, via a link).

Unlike some jurisdictions, there are no laws prohibiting access to any of the major social media platforms in the UK. However, social media platforms themselves are subject to certain rules and requirements that aim to prevent the spreading of harmful speech and disinformation online and the abuse of market power by large online platforms, including obligations under the OSA.

Advertisers must ensure that their use of social media platforms complies with the law and the CAP Code in the usual way and with the platforms' own terms of use and internal advertising policies.

Native advertising must be clearly recognisable as advertising material, and advertorials must be clearly distinguishable from editorial content. Section 2 of the CAP Code requires that native ads be clearly disclosed, so that viewers are not misled into believing they are viewing organic content.

The CAP Code specifically refers to the use of appropriate labels for “advertorial” content, such as “Advertisement Feature”, “Ad”, “Advert”, “Advertising” or “Ad Feature”. Failure to identify or properly disclose an advertorial or piece of native advertising as such would also be automatically unfair under the CPRs.

Influencer campaigns are subject to the same advertising rules and consumer protection laws as traditional media advertisements. Influencers are responsible for disclosing where there is a commercial relationship with the brand (ie, they have received payment or other incentive in return for promoting its products). Where the influencer is employed by or owns (in full or in part) the brand being promoted, this must be clearly labelled so that consumers know the nature of the relationship that exists.

ASA and CMA guidance recommends the use of “#ad”, as the Authorities consider that tags such as “#spon”, “#sponsored”, “#gifted” and “#in association with” do not sufficiently indicate a commercial relationship. Labelling must be prominent and clearly visible to the consumer before engagement with that content, not hidden in the content or at the end of a long list of hashtags. The ASA publishes a “Non-Compliant Social Media Influencers” list to publicly shame influencers who repeatedly breach the rules, and the CMA has conducted investigations and required binding undertakings from repeat offenders, a breach of which could be enforced through the court.

Both advertisers and influencers may be liable for content posted on the advertiser's behalf. The ASA has made it clear that advertisers have a duty to monitor influencer content to ensure compliance, and brands cannot avoid liability by claiming that influencers acted independently.

Consumer testimonials and endorsements in advertising are regulated under the CPRs and the CAP Code. Reviews must not falsely claim or imply that a marketer is acting as a consumer or outside of their profession – fake reviews are expressly prohibited.

Ads must not feature testimonials without permission from the author. Advertisers must disclose where an incentive has been given. Consumers should not be incentivised to provide positive reviews, and marketers are prohibited from suppressing genuine negative reviews. The CMA has been active in cracking down on businesses that manipulate online reviews, with a focus on ensuring transparency. The DMCCA will specifically list “fake reviews” as an automatically unfair commercial practice and strengthen the CMA's enforcement powers. There are certain categories of products which, according to the CAP Code, it is not appropriate for celebrities or health professionals to endorse (eg, medicines).

Currently, advertisers can be held liable for misleading or false consumer reviews that fail to comply with the Codes and CPRs if the advertiser adopts, promotes, solicits or moderates that content (other than filtering out offensive/harmful content).

The DMCCA will include new laws regarding online reviews, introducing new “banned” practices, including commissioning fake reviews, failing to disclose incentives and publishing fake/incentivised reviews without taking reasonable steps to prevent such publication or failing to remove them. These rules are expected to come into force in April 2025. Under the DMCCA, the CMA will have increased powers to investigate and award compensation to consumers and take enforcement action against marketers for failing to comply (see 1.2 Enforcement and Regulatory Authorities).

There are specific rules for email marketing in the UK, mainly governed by the Privacy and Electronic Communications Regulations (PECR) and the UK GDPR. The rules differ depending on whether the communication is business-to-consumer (B2C) or business-to-business (B2B).

B2C Marketing

• Consent: marketers must obtain explicit opt-in consent before sending emails, except where the so-called “soft opt-in” applies. The soft opt-in exception allows businesses to email existing customers about similar products or services without new consent, as long as an easy opt-out (unsubscribe) option is provided in every communication, and customers were given the opportunity to opt-out when their details were first collected.
• Opt-out: each marketing email must provide an easy way for recipients to unsubscribe from future emails and ensure they can withdraw consent at any time. This is usually provided by a simple unsubscribe link.
• Identification: the sender’s identity must be clear, and contact information must be provided in each email, allowing recipients to know who is contacting them.

B2B Marketing

• Consent: generally, consent is not required for B2B emails, but emails should be relevant to the recipient's professional role.
• Opt-out: as with B2C, businesses must provide a simple opt-out mechanism.
• Identification: the sender must clearly identify themselves and provide contact details.

In addition to the specific rules under PECR, the processing of personal data must comply with the UK GDPR, and data controllers must have a “lawful basis” for processing the data, and comply with approved mechanisms for transferring data outside the UK to countries that are not recognised as approved jurisdictions by the ICO. Breaches of PECR can result in criminal prosecution, non-criminal enforcement procedures and fines of up to GBP500,000. Fines for breaches under the UK GDPR can be substantial, up to a maximum of GBP17.5 million or 4% of global turnover. Repeated non-compliance can damage a company’s reputation and customer trust, and lead to further legal action or restrictions on communication activities.

Specific rules apply to inbound and outbound telemarketing including live and automated calls under PECR and the UK GDPR.

Outbound Telemarketing (Live Calls)

Live calls must not be made to anyone who has opted out under PECR, to individuals registered with the Telephone Preference Service (TPS) nor to entities listed on the Corporate Telephone Preference Service (Corporate TPS) unless consent was given, nor for claims management services without consent. Only authorised firms or trustees may make pension scheme-related calls if strict criteria are met, such as prior consent.

Automated Calls

Automated calls that play a recorded message can only be made if the individual has specifically consented to receiving automated calls.

For both live and automated calls, the caller's number must be displayed to the person being called. The caller must also provide their identity and offer an address or a freephone number for contact purposes if requested.

Inbound Telemarketing

If personal data is collected during an inbound call, businesses must inform individuals of how their data will be used.

Violating these rules can lead to fines by the ICO (see 6.1 Email Marketing). This applies particularly to unauthorised automated calls or calling individuals who have opted out via the TPS. In January 2024, the ICO fined two home improvement companies GBP250,000 (combined) for calling individuals registered with the TPS and concealing their identity.

The information outlined in 6.1 Email Marketing applies equally to text messaging. The term “electronic mail” is defined broadly in PECR and encompasses various forms of electronic communication, including email marketing and text messaging.

Targeted or interest-based advertising, particularly through the use of consumer data, is regulated by the UK GDPR and PECR. Advertisers must be transparent about the data they collect and how it is used, and provide consumers with the option to opt-out of targeted ads. The use of cookies and tracking technologies requires explicit consent from users, and failure to comply with these requirements can lead to enforcement actions from the ICO.

In the past year, regulators have focused on ensuring that online behavioural advertising practices align with privacy laws, particularly around the use of consumer data for retargeting purposes. The industry currently relies heavily on the Interactive Advertising Bureau's (IAB) Transparency & Consent Framework (TCF) v2.2, a voluntary tool that seeks to facilitate compliance with the GDPR and PECR, particularly by allowing user consents to be passed down the chain via the publishers' consent management platforms to the various vendors and intermediaries engaged in ad serving, measurement, targeting and media supply. The IAB has faced pressure and was itself deemed to be in breach of the GDPR by the Belgian regulator in 2022, in a case referred to the Court of Justice of the European Union (CJEU), which earlier this year confirmed that the consent strings stored by vendors constitute personal data and that, in some instances, the IAB would be a joint data controller. The case is now going back to the Belgian Court of Appeal and a decision is expected by early next year, which may again have an impact on the framework and, in particular, the consents that may need to be obtained.

Special rules apply to the collection and use of personal information from children, primarily under the UK GDPR and PECR. These regulations require businesses to obtain parental consent when collecting data from children under the age of 13. Information must be processed transparently, using age-appropriate language, and data should be used for specified legitimate purposes only. Profiling or targeted marketing to children requires careful consideration to ensure it is appropriate and lawful.

The ASA rules reflect the UK GDPR (see Section 10 of the CAP Code). The usual ASA and ICO sanctions apply (see 6.1 Email Marketing).

In 2023, TikTok was fined GBP12.7 million for breaching the UK GDPR and misusing children's data. TikTok failed to take sufficient steps to identify and remove underage children using its platform.

The DPA supplements the UK GDPR to ensure that personal data collected during advertising activities is processed lawfully and transparently.

The following areas should be considered.

• The ICO has increased its focus on cookie consent practices, particularly for advertising cookies. In November 2023, the ICO issued warnings to some of the UK's largest websites, highlighting non-compliant cookie banners. It emphasised that users must be given a fair choice to reject all non-essential cookies just as easily as they can accept them. Websites must stop using practices such as pre-ticked boxes, bundled consent, or making the opt-out option difficult to find. This is part of a joint effort with the CMA to ensure that users have genuine control over their personal data in the online advertising space.
• CAP is currently consulting on its rules regarding the collection and use of data for marketing, including regarding Online Behavioural Advertising (OBA). The aim is to update the rules to align with the UK GDPR and modernise the regulatory framework for OBA. This process is expected to address key privacy issues, including transparency, consent and opt-out mechanisms for consumers. The consultation is ongoing and CAP is expected to release updated rules following the review.

A sweepstake (sales promotion) must comply with the provisions of the Gambling Act 2005 (Gambling Act) so as not to be an unlawful lottery. To be a lawful prize competition, it must either:

• be free to enter or have a free entry route; or
• involve an element of skill, judgement or knowledge.

If neither criteria apply, the competition will be deemed a lottery and must be licensed.

Assuming that the promotion is lawful, marketers must also ensure that the competition terms and mechanics comply with CAP Code rules for prize promotions. These require that all significant conditions and restrictions are made clear upfront, that promotions are run fairly (eg, regarding rules changes, entry route and the availability of prizes) and that the selection of winners is subject to independent supervision (unless randomly generated by computer). Marketers must not overstate the chances of winning, and must anticipate the likely demand for prizes.

Pay-to-enter competitions may be lawful if they provide an easily accessible free entry route or if they involve an element of skill, judgement or knowledge. The skill, judgement or knowledge element must be sufficiently demanding to deter a “significant proportion” of entrants from entering the competition at all, or from winning a prize. It is a relatively low bar and there are limited instances of the Gambling Commission taking enforcement action under the Gambling Act.

If a competition is deemed to be a lottery, a lottery licence must be obtained. Most prize competitions will not be “lotteries”, in which case there is no requirement for prior approval or registration. Lotteries in the UK must be run for good causes, such as charity, sports or cultural purposes.

Price promotions are an important part of the marketing mix and often a contentious area. The CPRs include specific rules regarding free and reduced-price offers, and make it a criminal offence to engage in an “unfair” commercial practice. Pricing offers are also subject to the CAP Code, and additional guidance is provided by the Guidance for Traders on Pricing Practices issued by the Chartered Trading Standards Institute.

Free Offers

If a product or service is offered as “free”, there should not be any hidden charges or any reduction in the usual quality of the product or service. If consumers must pay for anything above the unavoidable cost of responding and collection/delivery, then it should not be offered as “free”.

Reduced-Price Offers

Reference pricing claims (eg, “50% “off” or “25% bigger for the same price”) must be accurate and not mislead. The product must have been sold at the higher price for a significant period before the promotion. CMA guidance published in August 2024 states that the higher price needs to have applied for at least as long as the promotion period (so if the original price applied for two weeks, then the offer can only be described as a “discount” price for two weeks), and that there must have been a sufficient number of sales at that higher price before the discount period. This guidance relates to particular products but may have more general application.

The CMA has also issued guidance on time-limited (“act now”) and other offers that instil a sense of urgency (“only five left at this price”). Again, generally, all such offers must be genuine and not misleading (and should also not fall foul of rules on social responsibility by, for example, rushing people into making serious decisions with undue haste – eg, laser eye surgery).

Pricing promotions have been the subject of considerable scrutiny by the CMA and action by consumer rights groups such as Which?. In July 2024, the CMA announced the findings of its investigation into supermarket loyalty scheme pricing and suspected misleading practices, but found little evidence to show unfair practices.

Contract renewal practices must comply with the CPRs and the CAP Code, and are subject to specific laws under the CCR. The DMCCA will further limit the terms of subscription contracts.

There are currently no specific rules or guidance regarding the use of AI in the development of advertising content. Creative concerns relate to inputs (AI models being trained on confidential or IP-protected input data and personal information) and outputs (potential infringement issues). Getty Images is taking action against Stability AI for use of its images in training its AI model, with the trial expected in 2025.

Existing advertising regulations regarding misleading marketing apply: advertisers using AI-generated content must ensure that ads are not misleading, harmful or offensive, and that they comply with all standard advertising rules. The ASA has issued guidance on the responsible use of AI in advertising, focusing particularly on transparency and the potential for AI-generated content to mislead consumers.

As of October 2024, there are no specific regulations regarding claims that a product is developed through the use of AI, powered by AI or has AI-related capabilities. EU legislation (the EU AI Act) has established a broad regulatory framework for the development, deployment and use of AI systems to ensure that AI is used safely, in accordance with ethical principles, and in ways that protect fundamental rights and freedoms. A key obligation is transparency: consumers should know when they are interacting with AI systems and if content is generated using AI, which must be clearly stated.

Post-Brexit, EU legislation does not have direct effect in the UK, but those principles may be reflected in UK AI legislation.

There are no special rules or guidance related to the use of chatbots in advertising, but the general principles of transparency and fairness under the CAP Code apply. Advertisers must ensure that consumers understand they are interacting with a chatbot and not a human, particularly when the chatbot is used for promotional purposes. Chatbots that collect personal data must comply with data privacy regulations under the UK GDPR, ensuring that users are informed about how their data will be used and stored.

The advertising, marketing and sale of cryptocurrency and NFTs in the UK is subject to regulation by the FCA in particular, pursuant to the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (FPO), and must comply with the CAP Code. Advertisements for cryptocurrencies and NFTs must include clear and prominent risk warnings, as these products are often considered high-risk investments. Misleading or unsubstantiated claims about the profitability or security of such investments can lead to enforcement actions by the FCA or ASA. Over the past year, regulators have increased scrutiny of cryptocurrency ads, particularly those targeting retail investors. The CAP Code applies to NFT advertising – for example, rule 3.3 requires that ads must not omit material information that the consumer needs to make an informed decision. Material information must also not be hidden or presented in an unclear, unintelligible, ambiguous or untimely manner.

NFTs which are sold that contain IP must make clear that ownership of the NFT does not necessarily confer IP rights in that content. The ASA has recently adjudicated against influencers who were promoting crypto products, where material information was not made clear in the ad. Crypto ads have been deemed to encourage consumers to engage in high-risk investments without consideration, and to trivialise serious and potentially costly financial decisions, especially in the context of the intended audience who were likely to have limited knowledge of cryptocurrency. Such ads were deemed irresponsible and in breach of the CAP Code.

There are currently no specific regulations governing advertising within the metaverse, but general advertising rules under the CAP Code continue to apply. Whilst there has been a decline in the initial buzz around the metaverse after the peak hype in 2022, and a flattening of user adoption in relation to some of the metaverses spoken of then, huge investment in immersive technologies is still occurring, particularly in virtual reality (VR) and augmented reality (AR), which have the potential to provide new media channels. The ASA has indicated that it will continue to monitor how ads are presented in this virtual space, to ensure they meet the same standards of transparency and truthfulness as other media.

Issues such as targeting ads to children or misleading consumers with virtual promotions are likely to be areas of focus for regulators in the coming years. There will no doubt be challenges in relation to issues such as ensuring that advertising is recognised as such and metaverse influencer advertising. But for now, there are no proposals to supplement the existing codes with specific metaverse provisions. The CMA has also expressed interest in how competition law will apply to metaverse-related marketing practices, with particular concerns around safety and privacy being flagged.

Certain products are subject to stricter advertising regulations in the UK, such as food, drugs, medical devices, alcohol, vaping/tobacco products and cannabis. Most of these regulations emanate from EU legislation, and since Brexit the UK has generally adopted its own versions of EU legislation. For example, post-Brexit, only authorised health and nutrition claims listed in the Great Britain Nutrition and Health Claims Register may be used in the UK since 1 January 2021 (previously the EU Register applied).

Advertisements for medicinal products are regulated by the MHRA under the Medicines Act 1968, and vaping/tobacco products are subject to strict advertising restrictions in legislation under the Tobacco and Related Products Regulations 2016, as well as under the CAP Code, particularly in relation to protecting children from being targeted. The Regulations prohibit the advertising of nicotine-containing electronic cigarettes (e-cigarettes), which are not licensed as medicines, in some media channels. Cannabis products, particularly those containing CBD, must comply with both the Medicines Act 1968 and the Misuse of Drugs Act 1971.

Product placement rules derive from the Audiovisual Media Services Directive (2013/10/EU) (AVMS Directive) and were implemented by the UK through amendment to the Communications Act 2003 and the Ofcom Broadcasting Code, setting out rules for how products can be placed in entertainment content on television, radio and “on-demand programme services”. The Ofcom Broadcasting Code ensures that product placement is transparent and does not mislead viewers. Products cannot be placed in certain types of programming, such as children's shows and news and current affairs programmes, and must not promote harmful or inappropriate products.

Viewers must be informed about product placement and, accordingly, the “product placement logo” must be shown for three seconds at the beginning and end of the programme, and also shown briefly in the ad break during the programme.

The CAP Code contains specific sections for areas that require additional consideration for advertisers, including financial products, gambling services and cosmetic treatments. Financial promotions are regulated by the FCA, while advertisements for gambling services are regulated by the Gambling Commission and must not target children or vulnerable individuals. Cosmetic treatments that involve surgical procedures must comply with the CAP Code and ASA guidance, which require advertisers to ensure that claims about the effectiveness and safety of treatments are not harmful or misleading and are socially responsible. Advertising prescription-only medicines is prohibited to the general public under the Medicines Act 1968. Food advertising in the UK is governed by the Nutrition and Health Claims (Amendment) (EU Exit) Regulations 2020, which require that any health or nutrition claims are backed by scientific evidence and approved by the appropriate regulatory authorities.