Consultation into the proposed revised CAP and BCAP Codes now open

BCAP and CAP have announced today the opening of the long awaited consultations into the proposed revised Codes.

The media has already picked up on issues such as the relaxation of the broadcast rules regarding advertising of condoms and abortion. However, the review of the Codes is far reaching across all types of media (including print, cinema, internet, radio and TV) and is likely to affect the rules on a range of key topics such as environmental claims, prize draws, alcohol and financial services. The new Codes will be updated to take account of new legislation including the AVMS Directive, the Consumer Protection from Unfair Trading Regulations 2008, the EC Regulation on Nutrition and Health claims made on Foods and the Communications Act 2003. Some examples of the proposed changes are set out below:

• The last 12 months has seen the number of environmental claims in ads rise dramatically. The proposed BCAP rules have been amended so that environmental claims must be based on the full life cycle of the advertised product or service, unless the advertisement states otherwise, and must make clear the limits of the life cycle. This confirms the approach which advertisers have seen the ASA take over the last year.
• Further, the proposed CAP and BCAP Codes state that advertisements “must not mislead consumers about the environmental benefit that a product or service offers”. For example, by highlighting the absence of an environmentally damaging ingredient, if that ingredient is not usually found in competing products or services, or by highlighting an environmental benefit that results from a legal obligation, if competing products are subject to the same requirements.
• There are a host of new rules put forward as a result of the EC Regulation on Nutrition and Health claims made on Food for both the CAP and BCAP Codes. For example, claims boasting a nutrition or health benefit that gives rise to doubt the safety or nutritional adequacy of another product are unacceptable. Similarly, it will not be acceptable to state or imply health could be affected by not consuming a food. The consultation also underlines the impact of the EC Regulation generally on health and nutrition claims.
• In relation to advertising of alcohol, the BCAP Codes appear to be aligning the rules for radio and TV where previously they had differed. Both CAP and BCAP consider that the current exception for low-alcohol drinks, in relation to the rules preventing encouragement of immoderate drinking, is not warranted and should be deleted. However, there are no ‘substantive’ changes to the rules which will no doubt be a relief to alcohol advertisers.
• There is a new rule on price comparisons in the BCAP Code. Rule 3.38 states that “Advertisements that include a price comparison must state the basis of the comparison. Comparisons with competitors’ prices must be with the prices for identical or substantially equivalent products or services and must explain significant differences between the products or services. If the competitor offers more than one similar product or service, the advertisement must compare the advertiser’s price with the price for the competitor’s product or service that is most similar to the advertised product or service.” This is likely to have been included as a result of the recent spate in supermarket price comparison ads. However, it is surprising that neither of the revised Codes have taken this opportunity to clarify the rules regarding access to the data which verifies the claims.
• There have been several changes to rules on prize promotions. CAP has acknowledged that the rule on prize draws being observed by an independent observer should be amended to allow for the proper use of a computer randomly to select a winner in accordance with the laws of chance.
• There are also new rules on the collection of data on children. For example, marketers must not knowingly collect personal information for marketing purposes from children under 12 about themselves without first obtaining the consent of their parent or guardian and marketers must not knowingly collect personal information about other people from children under 16.
• CAP has inserted a new rule regarding misleading by exaggeration. It proposes that “marketing communications must not exaggerate the capability or performance of a product; claims must be based on normal use.” This will be important across a range of industries including cosmetics and household goods.

The consultation closes at 5.00pm on Friday 19 June 2009.