The main laws and regulatory frameworks governing advertising in the UK include:

• the Digital Markets, Competition and Consumers Act 2024 (DMCCA) which applies to conduct from 06 April 2025 onwards, mainly strengthening requirements around transparency, misleading practices and consumer protection;

• the Consumer Protection from Unfair Trading Regulations 2008, which regulates business-to-consumer marketing practices before 06 April 2025;

• the Business Protection from Unfair Trading Regulations 2008, which regulates business-to-business marketing practices; and

• the CAP Code and BCAP Code, together with associated ASA rules, which are enforced by the ASA.

The ASA (Advertising Standards Authority) is the UK’s independent advertising regulator and is responsible for enforcing the CAP and BCAP Codes. The ASA can:

• order that advertisements are amended or withdrawn;

• publicly uphold complaints (with reputational impact);

• require pre-approval of future ads; and

• refer serious or repeated breaches to relevant authorities (such as Ofcom and Trading Standards), which have the power to impose statutory fines and take criminal enforcement action.

If the ASA identifies a breach of the CAP and/or BCAP Code – either following a third-party complaint or its own monitoring – you may be required to amend or withdraw the advertisement. More serious breaches can result in:

1.     public rulings damaging brand reputation,

2.     a referral to Trading Standards and/or Ofcom,

3.     statutory penalties, and

4.     potential legal proceedings under consumer protection legislation.

Early legal advice can help mitigate these risks and shape a strategic approach to an ASA investigation.

You may be able to challenge misleading competitor advertising by submitting a complaint to the ASA, Trading Standards and/or the Competition and Markets Authority.  Exactly who you submit the complain to depends on what the breach is. In most circumstances, it is first advisable to inform the competitor of your complaint and the reasons for it, allowing them to rectify it prior to complaining.

We can evaluate your options, gather evidence, and act quickly to protect your commercial interests.

Environmental or “green” claims must be:

• accurate;

• specific;

• substantiated with evidence; and

• not exaggerated or ambiguous.

Vague terms such as “eco-friendly” or “sustainable” should be avoided unless they are clearly justified.  The CMA’s Green Claims Code, together with the ASA’s guidance notes, provide useful principles, which we can help you apply to adverts and promotional materials.

Comparative advertising is a strategy that involves marketing your own products and services as superior than those of a specific competitor. Generally, you can make comparative claims about competitors, but you must be careful to comply with the Business Protection from Misleading Marketing Regulations 2008, which sets out a number of rules on how comparative advertising must be done.  In short, it must be:

• objective;

• verifiable;

• not misleading; and

• between products meeting the same need or intended purpose.

We can advise on compliant comparative claims and pre-publication risks. This is a very sensitive area and you must be prepared for your competitor to be aggrieved by your comparative advertising.

It’s always best to seek legal advice as soon as you receive an ASA complaint. We can help you:

• assess the merits of the complain and the specific CAP/BACP rules involved;

• prepare a response to the complaint;

• gather supporting evidence; and

• advise on possible amendments to the advert / promotional materials if the complaint has merit.

Your initial response is critical, and we can ensure your position is presented clearly and strategically.

The CAP Code is not legislation, but it reflects and reinforces many legal requirements (such as those contained in the DMCCA).  Although the ASA cannot bring criminal action against advertisers directly, breaches may lead to:

• adverts being banned;

• reputational damage; and/or

• a referral to statutory regulators such as Trading Standards or Ofcom (who may be entitled to bring criminal action).

Compliance with the CAP Code is therefore essential.