Marketing and the law

Business to consumer (B2C)

The Consumer Protection from Unfair Trading Regulations govern business to consumer advertising

Practices that are prohibited include:

• unfair commercial practices (ie if it is considered unprofessional and likely to affect a consumer's ability to make an informed decision about a product)
• aggressive sales practices or pressure selling
• misleading practices (eg advertising goods that don't exist or making incorrect comparisons to other products)
• limited offers - falsely stating that a product will only be available for a short amount of time (or that it will only be available on certain terms for a limited time)
• bait advertising - luring in customers with adverts for products at special prices if the products are not in stock or only in very limited supply

Business to business (B2B)

The Business Protection from Misleading Marketing Regulations 2008 govern business to business advertising. Some of the rules are:

• misleading advertising is prohibited (eg it should not deceive traders in any way or affect their economic behaviour)
• comparative advertising is only permitted subject to certain conditions being met (eg it should not take advantage of the IP rights of a competitor)

Failure to abide by the regulations may lead to the company advertising their products or services being reported to a local trading standards office which can result in fines and prosecution.

Two separate codes of practice, set by the Committee of Advertising Practice (CAP), cover all forms of promotional communications, depending on whether they are broadcast or not.

BCAP Code - The UK Code of Broadcast Advertising (BCAP Code) applies to advertising on television, radio and video-on-demand services. It is enforced by the Advertising Standards Authority (ASA). The rules cover issues such as misleading advertising, ensuring that harm and offence are not caused and protecting children. The BCAP Code essentially puts into effect the Ofcom Broadcasting Code (Ofcom designated ASA as the regulator for broadcast advertising).

CAP Code - The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) applies to non-broadcast advertising (eg newspaper, magazine, cinema and online advertising). It covers many of the same issues as the BCAP Code.

One of the important rules in both codes relates to product description. Any claims made about a product or service should be verifiable and all costs - including ongoing or associated costs - must be accurately set out.

Businesses should not contact consumers directly by email, phone, text or post unless they have given permission (or have opted in).

The term 'soft opt-in' is sometimes used to describe the rule about existing customers. The idea is that if an individual bought something from you recently, gave you their details, and did not opt-out of marketing messages, they are probably happy to receive marketing from you about similar products or services even if they haven't specifically consented. If they have opted in, they should always be given a way to easily opt-out (eg provide an unsubscribe link in emails).

Anyone carrying out telesales activity should check with the Telephone Preference Service (TPS) to find out if any numbers have opted out.

For more information on direct marketing rules, read Direct marketing and marketing guidance from the ICO.