The digital remit of the UK Advertising Standards Authority (ASA) is to be extended significantly to deliver more comprehensive consumer protection online.  From 1 March 2011, the rules in the Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the Committee of Advertising Practice or "CAP" Code) will apply in full to marketing communications on the Internet.  The ASA's new remit will cover:

  • Advertisers' own marketing communications on their own websites; and
  • Marketing communications in other non-paid-for space online under their control, such as social networking sites like Facebook and Twitter.

Journalistic and editorial content and material related to causes and ideas -- except those that are direct solicitations of donations for fund-raising -- are excluded from the remit.

Sanctions

In addition to the ASA's present sanctions, which already achieve a high level of compliance, two new sanctions will apply:

  • Removal of paid-for search advertising -- advertisements that link to the page hosting the non-compliant marketing communication may be removed with the agreement of the search engines; and  
  • ASA paid-for search advertisements -- the ASA could place advertisements online highlighting an advertiser's continued non-compliance.

Guidance and Enforcement

Website owners and agencies are urged to sign up to receive assistance and training from CAP to help ensure their sites comply with the new rules before 1 March 2011.  Some industry members, however, feel there is a lack of detailed guidance and are putting pressure on the ASA to publish this information as soon as possible.

At a recent ASA workshop, for example, there was discussion about how websites would be viewed that are not based in the UK, but that arguably target UK consumers.  Advertising bodies in other countries are likely to be looked at as a first point of call.  A CAP policy manager confirmed that the ASA does not expect an enforcement frenzy next year.  This is, in part, because most of the big companies have applied the CAP Code when developing their online materials for some time.  The ASA will take an ad hoc approach in general, and will consider potential online breaches on a case-by-case basis.

Key Issues

The criteria that the ASA will apply when scrutinising online materials will have major implications for food companies when developing multi-country website marketing campaigns. 

Companies should pay particular attention to the EU nutrition and health claims regulation as a number of websites currently make claims that contravene those rules.  The ASA will be able to adjudicate on such claims from next March.  It is therefore crucial that companies review not only their on-pack, hard copy and traditional broadcast mediums to ensure legislative compliance, but also their digital marketing strategies if they are to avoid the 'name and shame' approach adopted by the ASA.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 03/12/2010.