In an industry where taste and trust go hand in hand, understanding the legal landscape of advertising is crucial for both businesses and consumers.
From posters and point-of-sale displays to product packaging, TV commercials, and TikTok videos, ‘advertising’ encompasses a wide range of activities. All of these are essential tools for promoting and selling products in the food and beverage sector, but fall foul of the advertising laws, and you could be in for a nasty surprise.
This series of three articles will provide you with: (i) an overview of the laws in relation to advertising, (ii) examples of the most popular types of advertising and the pitfalls most commonly associated with them, and (iii) top tips for navigating the sometimes rocky road of advertising law, giving you plenty of food for thought before you publish or broadcast your next advertisement.
The legal landscape
The law
At the date of publication, the primary sources of advertising law and regulation in the UK are:
- the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) and the Business Protection from Misleading Marketing Regulations (BPRs) (the CPRs and BPRs together being the Laws); and
- the regulatory UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) and The UK Code of Broadcast Advertising (BCAP Code) (the CAP Code and BCAP Code together being the Codes).
Whilst the Codes do not have legal force, they have long been a reference for best practice in advertising and are very similar in content to the Laws. If you are in breach of the Laws, you are likely to also be in breach of the Codes (and if you are in breach of the Codes you may also be in breach of one or both of the Laws).
There are various ways in which your advertising could breach the Codes, depending on the type of advert and/or the claims you make within the advert. Our next article in this series will take you through the most popular types of advertising and their common pitfalls.
Your advertising will be in breach of the Laws if it:
- contains false or misleading claims (or omissions) that influence the average consumer to purchase your products and the consumer would not have made the purchase without those false or misleading claims; or
- deceives or is likely to deceive the businesses to whom it is addressed and this influences their economic behaviour, or if the marketing injures or is likely to injure a competitor.
Consequences of breach
There are a number of bodies (both public and private) who are involved in creating, maintaining and enforcing the Laws and the Codes including the Committee of Advertising Practice and Ofcom. However, the Competition and Markets Authority (CMA), Trading Standards (TS) and the Advertising Standards Agency (ASA) (the CMA, TS and ASA together the Regulators) are the main bodies regulating compliance with the Laws and the Codes.
Both consumers and businesses can make a complaint for misleading advertising to any (or all) of the Regulators, the consequences of which could leave you with a bad taste in your mouth.
The consequences of a breach of the Laws or the Codes will vary on a case-by-case basis, but you could be subject to any of the following:
- A CMA investigation (under the new DMCC (see below) the CMA gets direct enforcement powers)
- Fines, criminal proceedings and prison (with the CMA to have new fining powers under the DMCC of up to 10% of global turnover)
- ASA investigations, ad bans, corrections and pre-reviews of future advertising
- Licence revocations or suspensions by Ofcom
- Reputational damage
- Other legal action (e.g. by competitors if you compare your products to theirs and you have defamed them or their product).
Any of these consequences (together or alone) could lead to a loss of customer confidence in your products and/or business, ultimately having an adverse effect on your bottom line.
Recent updates and future changes
Recent legislation changes and further proposed changes will have a profound effect not only on the legal landscape governing advertising, but also the consequences of failing to adhere to the Laws and the Codes.
Later this year, when the relevant provisions come into force, the Digital Markets, Competition and Consumers Act 2024 (DMCC) will replace (and revoke) the CPRs. Whilst the main concepts and rules will remain, the DMCC seeks to expand consumer rights in relation to misleading advertising, for example explicitly adding offences for fake reviews, and making it easier to amend the list of outright banned practices.
Also, as a result of the DMCC, the Codes are under review by the relevant committees in order to address the changes to consumer law brought in by the DMCC, so we would expect to see updated versions of the Codes published at some point later this year.
If your business is one which manufactures so called ‘less healthy’ food or drink (as determined by the Government’s two-stage process, more on this here), you also need to be aware of the recently announced Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024 (in force from 1 October 2025). Any food or drink which falls into the ‘less healthy’ category may not be advertised on Ofcom-regulated TV services or on demand programme services between 5.30am and 9pm, or placed in paid-for space in online media at any time, meaning businesses who have historically relied on such adverts to drive revenue will need to think now about revised marketing strategies for these types of food and drink.
Now that you’re on top of the legal landscape, stay tuned for part two of our series next month where we’ll dive into the most popular types of advertising and uncover the common pitfalls that can trip up even the savviest marketers. Our next instalment will serve up some key ingredients for your advertising success. Hopefully that’s enough to whet your appetite, and we’ll see you next time!
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at January 2025.