Advertising and Sales
Promotions
ADVERTISING
What controls apply to
Internet advertising and promotions?
Internet advertising is self-regulated through
the Advertising Standard's Authority's (ASA's) Code of Practice. This states
that adverts must be Legal, Decent, Honest and Truthful. Advertisers have
primary responsibility for ensuring that their adverts are legal. Adverts
should comply with the law and should not incite anyone to break it.
The ASA can take action to have an advert
withdrawn or changed without having to wait for a complaint.
The principles of the Code are:
- All adverts should be prepared with a sense of
responsibility to consumers and to society. All adverts should respect the
principles of fair competition generally accepted in business. No advert should
mislead by inaccuracy, ambiguity, exaggeration, omission or otherwise.
- No advert should bring advertising into
disrepute.
- Adverts must conform with the Codes. Primary
responsibility for observing the Codes falls on advertisers. Others involved in
preparing and publishing adverts such as agencies, publishers and other service
suppliers also accept an obligation to abide by the Codes.
- Any unreasonable delay in responding to the
ASA's enquiries may be considered a breach of the Codes.
- The ASA will on request treat in confidence
any genuinely private or secret material supplied unless the Courts or
officials acting within their statutory powers compel its disclosure.
- The Codes are applied in the spirit as well as
in the letter.
What the Code says
about adverts in general
The following rules are specifically for
Internet sales:
- Unless obvious from the context, adverts
should include:
- the main characteristics of the product or
service;
- the amount and number of any transport
charges;
- any VAT payable, unless the advert is
addressed exclusively to the trade;
- a statement that goods can be returned, if
applicable;
- any limitation on the offer and any
conditions that affect its validity;
- the estimated delivery time; consumers should
be advised if orders cannot be fulfilled within 30 days. Those who have paid in
advance should be offered a refund but if they prefer to wait they should be
given a firm despatch date or fortnightly progress reports.
- Advertisers should take no longer than 30 days
to fulfil orders except:
- where security is provided for purchasers'
money through an independent scheme;
- for goods such as plants and made-to-measure
products where the estimated time of delivery should be made clear;
- where the advertisers make clear that they do
not intend to begin production unless a sufficient response is received;
- where a series of goods is sent at regular
intervals after the first 30 days.
- Before goods or services are supplied and
accepted advertisers should, where appropriate, provide consumers with written
information on:
- payment arrangements, including credit and
instalment terms;
- how to exercise their right to
withdraw;
- the cancellation of open-ended
contracts;
- other terms and conditions, including
guarantees;
- the most appropriate address to contact them.
- Advertisers must refund money promptly when:
- consumers have not received their goods or
services; alternatively advertisers may, if asked, provide a
replacement;
- goods are returned because they are damaged
when received, are faulty or are not as described, in which case the
advertisers must bear the cost of transit in both directions;
- unwanted goods are returned undamaged within 7
working days of being received by the purchaser; consumers should assume they
can try out goods unless the advert states otherwise. It should be made clear
if consumers have to pay the return postage. Advertisers are not required to
bear the cost of transit on unwanted goods that are returned unless the goods
were unsolicited;
- an unconditional money-back guarantee is
given and the goods are returned within a reasonable period;
- goods that have been returned are not
received back, provided consumers can produce proof of posting.
- Advertisers do not have to provide a full
refund on:
- perishable, personalised or made-to-measure
goods so long as all contractual obligations to consumers are met;
- high value products, or those to be delivered
abroad, where an administration fee may be charged; this should be made clear
to consumers before they are committed;
- goods that can be copied unless they fall
under the 1st, 2nd or 4th bullet point in the requirement above.
- Advertisers should take particular care when
packaging products that may fall into the hands of children.
- There are also a number of legal restrictions
which need to be considered including:
What the Code says
about making claims in your adverts
Before submitting an advert for publication,
advertisers must hold documentary evidence to prove all claims (whether direct
or implied) that are capable of objective substantiation. The adequacy of
evidence will be judged on whether it supports both the detailed claims and the
overall impression created by the advert. The ASA can request to see the
evidence and if they do it should be sent to them without delay.
You should consider the following before
you make any claim:
- If there is a significant division of informed
opinion about any claims made in an advert they should not be portrayed as
generally agreed.
- Advertisers may give a view about any matter,
including the qualities or desirability of their products, provided it is clear
that they are expressing their own opinion rather than stating a fact.
- Claims for the content of non-fiction books,
tapes, videos and the like that have not been independently substantiated
should not exaggerate the value, accuracy, scientific validity or practical
usefulness of the product.
- Obvious untruths or exaggerations that are
unlikely to mislead and incidental minor errors and unorthodox spellings are
all allowed provided they do not affect the accuracy or perception of the
advert in any material way.
Testimonials and
endorsements
- Advertisers should hold signed and dated
proof, including a contact address, for any testimonial they use. Unless they
are genuine opinions taken from a published source, testimonials should be used
only with the written permission of those giving them.
- Testimonials should relate to the product
being advertised.
- Testimonials alone do not constitute
substantiation and the opinions expressed in them must be supported, where
necessary, with independent evidence of their accuracy. Any claims based on a
testimonial must conform with the Codes.
- Fictitious testimonials should not be
presented as though they are genuine.
- References to tests, trials, professional
endorsements, research facilities and professional journals should be used only
with the permission of those concerned. They should originate from within the
European Union unless otherwise stated in the advert. Any establishment
referred to should be under the direct supervision of an appropriately
qualified professional.
If you make a false claim in your advert
then you may also commit a criminal offence under the Trade
Descriptions Act 1968.
What the Code says if
you quote prices in your adverts
- Any stated price should be clear and should
relate to the product advertised. Advertisers should ensure that prices match
the products illustrated.
- Prices in adverts addressed to the public
should normally include VAT and other non-optional taxes and duties imposed on
all buyers. Where adverts are likely to be read mainly by businesses able to
recover VAT, prices may be quoted exclusive of VAT or other taxes and duties,
provided prominence is given to the amount or rate of any additional costs.
- If the price of one product is dependent on
the purchase of another, the extent of any commitment by consumers should be
made clear.
- Price claims such as 'up to' and 'from' should
not exaggerate the availability of benefits likely to be obtained by consumers.
If you quote incorrect or misleading prices
in your advert then you may also commit a criminal offence under the Consumer Protection Act 1987.
What the Code says if
your advert includes free offers
There is no objection to making a free offer
conditional on the purchase of other items. Consumers' liability for any costs
should be made clear in all material featuring the offer. An offer should only
be described as free if consumers pay no more than:
- the current public rates of postage, or
- the actual cost of freight or delivery, or
- the cost, including incidental expenses, of
any travel involved if consumers collect the offer.
Advertisers should make no additional charges
for packing and handling.
Advertisers must not attempt to recover
their costs by reducing the quality or composition or by inflating the price of
any product that must be purchased as a pre-condition of obtaining another
product free.
What the Code says
about offering guarantees in adverts
- The word 'guarantee' should not be used in a
way that could cause confusion about consumers' legal rights. If there are
substantial limitations with the guarantee these should be spelled out in the
advert. Before commitment, consumers should be able to obtain the full terms of
the guarantee from advertisers.
- Advertisers should inform consumers about the
nature and extent of any additional rights provided by the guarantee, over and
above those given to them by law, and should make clear how to obtain redress.
What the Code says
about using comparisons in adverts
- Comparisons can be explicit or implied and can
relate to advertisers' own products or to those of their competitors; they are
permitted in the interests of vigorous competition and public information.
- Comparisons should be clear and fair. The
elements of any comparison should not be selected in a way that gives the
advertisers an artificial advantage.
What the Code says
about providing contact details in adverts
- Distance selling adverts
with written response mechanisms (eg postal, fax or email) and adverts for one
day sales, homework schemes and the like should contain
the name and address of the advertisers.
- Distance selling adverts
with telephone response mechanisms and adverts for business
opportunities should contain the name and contact details of the
advertisers. Unless required by law, other advertisers are not normally obliged
to identify themselves.
What the Code says
about the availability of advertised products
- Advertisers must make it clear if stocks are
limited. Products must not be advertised unless advertisers can demonstrate
that they have reasonable grounds for believing that they can satisfy demand.
If a product becomes unavailable, advertisers will be required to show evidence
of stock monitoring, communications with outlets and the swift withdrawal of
adverts whenever possible.
- Products that cannot be supplied should not
normally be advertised as a way of assessing potential demand unless it is
clear that this is the purpose of the advert.
- Advertisers must not use the technique of
switch selling, where their sales staff criticise the advertised product or
suggest that it is not available and recommend the purchase of a more expensive
alternative. They should not place obstacles in the way of purchasing the
product or delivering it promptly.
What the Code means by
decent
Adverts should contain nothing that is likely
to cause serious or widespread offence. Particular care should be taken to
avoid causing offence on the grounds of race, religion, sex, sexual orientation
or disability. Compliance with the Codes will be judged on the context, medium,
audience, product and prevailing standards of decency.
Although adverts may be distasteful without
necessarily being indecent advertisers are urged to consider public
sensitivities before using potentially offensive material.
The fact that a particular product is offensive
to some people is not sufficient grounds for objecting to an advert for it.
What the Code says
about Advertisers acting responsibly:
- Advertisers should not exploit the credulity,
lack of knowledge or inexperience of consumers.
- No advert should cause fear or distress
without good reason and advertisers should not use shocking claims or images
merely to attract attention.
- Advertisers may use an appeal to fear to
encourage prudent behaviour or to discourage dangerous or ill-advised actions;
the fear likely to be aroused should not be disproportionate to the risk.
- Adverts should not show or encourage unsafe
practices except in the context of promoting safety. Particular care should be
taken with adverts addressed to or depicting children and young people.
- Consumers should not be encouraged to drink
and drive. Adverts, should, where appropriate, include a prominent warning on
the dangers of drinking and driving and should not suggest that the effects of
drinking alcohol can be masked.
- Adverts should contain nothing that condones
or is likely to provoke violence or anti-social behaviour.
What the Code says
about the protection of privacy
Advertisers should not unfairly portray or
refer to people in an adverse or offensive way. Advertisers are urged to obtain
written permission before:
- referring to or portraying members of the
public or their identifiable possessions - the use of crowd scenes or general
public locations may be acceptable without permission;
- referring to people with a public profile -
references that accurately reflect the contents of books, articles or films may
be acceptable without permission;
- implying any personal approval of the
advertised product; advertisers should recognise that those who do not wish to
be associated with the product may have a legal claim.
SALES
PROMOTIONS
What the Code says
about sales promotions
The Sales Promotion Code regulates the nature
and administration of promotional marketing techniques. These techniques
generally involve providing a range of direct or indirect additional benefits,
usually on a temporary basis, designed to make goods or services more
attractive to purchasers.
The principles of the Code are:
- All sales promotions should be legal, decent,
honest and truthful. Sales promotions should comply with the law and should not
incite anyone to break it.
- All sales promotions should be prepared with a
sense of responsibility to consumers and to society; they should be conducted
equitably, promptly and efficiently and should be seen to deal fairly and
honourably with consumers. Promoters should avoid causing unnecessary
disappointment.
- All sales promotions should respect the
principles of fair competition generally accepted in business.
- No promoter or intermediary should bring sales
promotion into disrepute.
- Sales promotions must conform with the Codes.
The onus for observing the Codes falls on promoters, who have ultimate
responsibility for all aspects of a promotion. Intermediaries and agents also
accept an obligation to abide by the Codes.
- Any unreasonable delay in responding to the
ASA's enquiries may be considered a breach of the Codes.
- The ASA will on request treat in confidence
any genuinely private or secret material supplied unless the Courts or
officials acting within their statutory powers compel its disclosure.
What the Code says
about Promoters acting responsibly
- Sales promotions should not be designed or
conducted in a way that conflicts with the public interest. They should contain
nothing that condones or is likely to provoke violent or anti-social behaviour,
nuisance, personal injury or damage to property.
- Promoters should not abuse consumers' trust or
exploit their lack of knowledge or experience.
- No sales promotion should mislead by
inaccuracy, ambiguity, exaggeration, omission or otherwise.
- Promoters should make every effort to ensure
that unsuitable or inappropriate material does not reach consumers. Neither the
sales promotions themselves nor the promotional items should cause offence.
- Promotions should not be socially undesirable
to the audience addressed by encouraging either excessive consumption or
inappropriate use.
- Alcoholic drinks and tobacco products should
not feature in sales promotions addressed to people who are under 18 and
tobacco promotions should be addressed only to existing smokers. (There are
specific Codes for alcoholic drinks and cigarettes).
- Adverts and promotions addressed to or
featuring children should contain nothing that is likely to result in their
physical, mental or moral harm. There are detailed requirements as to how
children should and should not be depicted and what 'messages' should be given
to children. You should consult the code itself for full details at www.asa.org.uk.
(For the purposes of the Sales Promotion Code, a child or young person is
someone under the age of 16.)
What the Code says
about the protection of consumers
- Promoters should make all reasonable efforts
to ensure that their promotions, including product samples and adventurous
activities, are safe. In sampling promotions, every effort should be made to
avoid harming consumers or their property. Special care should be taken when
sales promotions are addressed to children or when products intended for adults
may fall into the hands of children.
- Literature accompanying promotional items
should give any necessary safety warnings.
- Promotions should be designed and conducted in
a way that respects the right of consumers to a reasonable degree of privacy
and freedom from annoyance.
- Consumers should be told before entry if
participants may be required to become involved in any of the promoters'
publicity or advertising, whether it is connected with the sales promotion or
not. Prizewinners should not be compromised by the publication of excessively
detailed personal information.
- Promoters and others responsible for
administering sales promotions should ensure that the way they compile and use
personal information about consumers conforms to the Specific rules on Database
practice.
What the Code says
about the availability of promotional items
- Promoters should be able to demonstrate that
they have made a reasonable estimate of likely response and that they are
capable of meeting that response. This applies in all cases except prize
promotions, where the minimum number of prizes available to be awarded should
be made clear to participants. Any significant limitations should also be made
clear.
- Phrases such as 'subject to availability' do
not relieve promoters of the obligation to take all reasonable steps to avoid
disappointing participants. Capping of collector schemes or free mail-ins
requiring a purchase is not acceptable.
- If promoters are unable to supply demand for a
promotional offer because of an unexpectedly high response or some other
unanticipated factor outside their control, products of a similar or greater
quality and value or a cash payment should normally be substituted.
What the Code says
about information on how to participate
- Sales promotions should specify before
participation:
- how to participate, including any conditions
and costs;
- the promoters' full name and business address
in a form that can be retained by consumers, unless this is obvious from the
context;
- a prominent closing date if applicable; where
the final date for purchase of the promoted product differs from the closing
date for the submission of claims or entries, this should be made clear to
participants;
- any proof of purchase requirements;
- where it is not obvious, if there is likely
to be a limitation on the availability of promotional packs in relation to any
stated closing date of the offer;
- where applicable, geographical or personal
restrictions, including whether permission is needed from an adult;
- any other factor likely to influence
consumers' decisions or understanding about the promotion;
- that any deadline for responding to an
undated mailing will be calculated from the date the mailing was received by
consumers;
- if a promotion appears on packaging, the
information required by the first 7 points above should be clearly visible on
the outside. It should be emphasised, for example by using bold type, by
separating it from other text or by using a different colour.
What the Code says
about managing the promotion
Sales promotions should be conducted under
proper supervision and adequate resources should be made available to
administer them. Promoters and intermediaries should not give consumers any
justifiable grounds for complaint.
- Promoters should allow ample time for each
phase of the promotion: notifying the trade, distributing the goods, issuing
rules where appropriate, collecting wrappers and the like, judging and
announcing the results.
- Promoters should fulfil applications within 30
days unless:
- participants have been told in advance that it
is impractical to do so;
- participants are informed promptly of
unforeseen delays and are offered another delivery date or an opportunity to
recover any money paid for the offer.
- When damaged or faulty goods are received by
consumers, promoters should ensure that they are either replaced without delay
or that a refund is sent immediately. The full cost of replacing damaged or
faulty goods should fall on promoters. If an applicant does not receive goods,
promoters should normally replace them free of charge.
The Code also contains requirements for
database owners and users and for employment and business opportunities.
Certain types of
promotions to which specific rules apply:
The Code contains specific rules promotions
involving the following:
Please visit the ASA website for more
information www.asa.org.uk .
Trading Standards Division, 3rd Floor, Wallasey Town Hall, Brighton Street, Wallasey, Wirral CH44 8ED
Telephone: (0151) 691 8020 Fax: (0151) 691 8098
Internet World Wide Web http://www.tradingstandards.gov.uk/wirral/
Electronic Mail: tradingstandards@wirral.gov.uk
