The Committee of Advertising Practice is updating its guidance, and your marketing professionals will want to be aware of this.

With the Digital Markets, Competition and Consumers Act 2024 (DMCC) shortly to come into effect to give regulators more tools to deal with inappropriate advertising and marketing practices this is an opportune time for CAP to update its guidance. Consultation is underway with a closing date of 5th February.

We’ve reported previously in various editions on elements of the DMCC, one of which is conduct by marketers that is in one way or another misleading and can influence the behaviour of the target for the communication adversely. All marketing communications, excluding those broadcast - which has a separate code of practice - must be compliant with the code.

In terms of consequences when things go wrong the sector is self-regulating so the most likely sanctions are publicity given to complaints and potential refusal of advertising space or other marketing support in the future. Marketing content that is not in compliance is expected to be withdrawn urgently when that fact becomes known.

The code comprises a lengthy list of requirements for advertising and marketing content. At Freeths we’ve looked through these in the context of the selling activities of education businesses and we point out the following as particularly notable.

Missing or hard to access material information

All information that an average consumer needs to take an informed transactional decision is material. Information in this category should not be omitted and, when included, its placement must be easily visible and not unclear, unintelligible, ambiguous or provided in an untimely manner. If there are practical difficulties in providing the information in an effective way the marketer is expected to identify and use work arounds (such as web links to terms and conditions of business).

Particular attention needs to be paid to pricing information

Consumer rights provisions relating to pricing information are being updated through DMCC and that is reflected in amendments to CAP. The practice of drip-feeding pricing information is to be outlawed and marketing material – particular where response is to be given online - must not mislead as to the likely final make-up of the price, with upfront reference to these additional costs and charges that will be incurred as the transaction is concluded.

Product claims which appear to be objective statements

Subjective claims about the characteristics or outcomes achievable from using a product or a service must not mislead by implying that any expression of opinion should be taken as an objective claim.

No exaggeration of the value, accuracy, scientific validity or practical usefulness of a product or service

While it is not compulsory to seek independent validation of particular claims, those claims made must not be exaggerated in a way that would be misleading. More specifically, if a claim is not universally accepted (for example independent researchers disagree) marketing communications must not suggest universal acceptance of the claim.

Product comparison

Comparisons are permitted in principle but, in making the comparison where the other product is identifiable through the marketing communication, there must not be any discrediting or denigration of the product, marketer, trade mark, trade name or distinguishing features.

Product and service reviews

Reviews are a key target for attention in the DMCC and CAP is falling in line. Marketing communications must not include fake reviews. A consumer review is defined as a review of a product, trader or any other matter relevant to a consumer’s decision to enter into a transaction. Reviews must be based upon genuine consumer experience.

When reviews are published there are additional considerations which include:

• a prohibition on not publishing or removing from publication negative reviews
• managing reviews in a way that gives greater prominence to positive reviews is prohibited
• omitting information relevant to the circumstances in which the review has been provided (for example the reviewer was paid to provide the review) is prohibited.

So much to watch out for

The above are just a few of the numerous potential pitfalls. If you engage a marketing professional to oversee your marketing activities, you can expect to receive informed guidance. Otherwise, if you have an important campaign about to start, we can support with guidance on how to navigate through the requirements of CAP.