Revised CAP and BCAP Codes published - Broadcasting: Film, TV & Radio

On 16 March 2010 BCAP and CAP published their revised Codes that regulate non-broadcast and broadcast advertisements. The revised Codes come into force on 1 September 2010, to allow advertisers some time to review and absorb the changes. In their joint press release, CAP and BCAP hailed the revised codes as "self-regulation at its best."

In general, the revised Codes broadly the same as the Codes which they will replace. However, there are some key changes, in particular, enhanced protection for children and consumers, increased focus on social and environmental responsibility and some changes which will impact on specific industries.

Please click here for the BCAP Codes and the CAP Codes in full.

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Purpose of revising the Codes

The review was launched to ensure that the Codes remain up to date, reflecting recent legislative changes, including, for example, the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) and the EC Regulation on Nutrition and Health claims made on foods.

During the review, a comprehensive survey was undertaken by the Advertising Standards Authority (ASA) indicating that the existing Codes were working well on the whole and did not require fundamental changes. To this end much of the Codes remain the same. The more significant changes are set out below.

Significant changes in the revised Codes

1. Format of the Codes

The four existing BCAP Broadcasting Codes relating to Television and Radio (Standards Scheduling) have been rolled into a single "Broadcast Advertising Standards Code". This should make it simpler for broadcast advertisers as they will need to be familiar with only one single code.

Further, additional guidance has been included at the start of each section of the Codes.

2. Health and Nutrition

Nutrition and health claims made on foods now have to comply with the European Regulation on Health and Nutritional Claims. The Codes have been updated to reflect these provisions.
Under rule 11.20, the new Codes also contain rules to regulate advertising of Herbal Medicines to reflect their new regulatory status in the EU.
Use of health professionals in broadcast adverts will continue to be banned from adverts for food or medicines but, significantly, they may take part in other advertisements subject to restrictions. However, ads that include a health professional must make clear if the individual has a direct financial interest in the sale of the advertised product or service. This has already raised queries as to what type of "financial interests" will be caught by this rule. It is thought that reasonable payments for the individual's time are not be intended to be caught but where, for example, the individual owns shares in the company this would clearly need to be disclosed. Further guidance is anticipated on the meaning of "financial incentive" ahead of the changes coming into force.
A new rule has also been introduced in the CAP Code to protect people with epilepsy who might be harmed by flashing images (this is in line with existing television rules).
Late night scheduling restrictions on condom advertising have been relaxed and, subject to taste and decency rules, these adverts can now appear before the watershed provided they are kept away from children under ten years old.

3. Children

There is an increased focus upon television and radio scheduling restrictions, to prevent adverts for age-restricted computer and console games from appearing around programmes made for children.
A new rule 5.14, to comply with the CPRs, makes clear the ways in which advertisers of promotions may fall foul of the ban on exhorting children to buy a product.
CAP has also reinforced rules in relation to the collection of personal data from minors including prevention of any collection of data from under 12s without parental consent. In addition, there is a new broadcasting rule, which prevent adverts from exploiting the trust that children place in parents, teachers and other persons.
Under a new rule 13.8, BCAP states that adverts must not confuse between infant and follow-on formula, reflecting the Infant and Follow-on Formula Regulations 2007.

4. Social responsibility

The Broadcast Code now includes a general principle of social responsibility (such a principle already existed in the CAP Code) giving the ASA the flexibility to act against irresponsible advertising that is not caught by any of the more specific rules. Whether or not this will make any practical difference to adjudications is yet to be seen, given that the Codes are already applied in spirit, as well as in letter and so it is doubtful whether this extension will capture anything which the ASA could not have upheld under the current rules.
Specific provisions have been included to state that debt advice adverts must comply with the Office of Fair Trading (OFT) guidelines on the same.
Adverts for adult films, magazines or other material may be broadcast for the first time, but only on adult entertainment channels.

5. Environment

Over the past year, the number of environmental claims in adverts has risen dramatically. There is a new Environmental Claims section for television advertising; and an additional rule against exaggerating the environmental benefits which a product offers. Again, the ASA is already strict in adjudicating on these issues, adopting a "cradle to grave" interpretation of non-restricted environmental claims, and so the changes may make little practical difference.

6. Lotteries, Competitions & Gambling

A dedicated section covering the National Lottery and lottery licences under the Gambling Act is applicable to all advertisements for lottery products regulated by the Gambling Commission and the National Lottery Commission.
In relation to sales promotions, the promoters must specify the nature of prizes available, as well as the number of prizes.
For the first time betting tipsters are now permitted to advertise on television and radio (subject to strict regulation).

Extending digital remit of the CAP Code

It has been announced that the advertising industry has recommended, and the ASA has agreed to, extending the remit of the ASA to apply the CAP Codes to all online marketing communications. The ASA already regulates paid-for space online such as search marketing and display advertising and promotions on websites, but its extended remit will also cover companies' marketing communications on their own websites. CAP has said that it will be looking at the practicalities of implementing the recommendation, with the hope of bringing the extended regime into force "as soon as possible, later in 2010".

It is also anticipated that Guidance will be published in July as to what will be within remit for user generated content.

Questions remain as to how breaches on websites can be enforced and funded in the long term.

Conclusion

Generally, the changes are not dramatic. BCAP and CAP have a stated preference to maintain continuity, in part because there was nothing essentially wrong with the existing Codes. It has been acknowledged by the ASA that compliance rates with the present codes are very high and that a significant change might unnecessarily confuse advertisers, agencies and media owners who must comply with them. However, there are some changes which will impact on specific industries, and which will have an impact on particular types of claims, for example, health claims.

Please click here for the BCAP Codes and the CAP Codes in full.

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 04/05/2010.

UK: Revised CAP and BCAP Codes published