Advertising in the UK: Tips for foreign newbies

If you need a few reasons to consider why your organization may want to consider traditional advertising in the United Kingdom, maybe the following headline statistics will help.

  • Advertising expenditure is expected to reach £20bn in 2015, with £6.3bn spent each year on internet advertising, including £1bn on mobile. An estimated £922m is spent on social media advertising.

  • UK advertising & marketing created £13.3bn of Gross Value Added (GVA) in 2014 - up from £8.35bn in 2008.

  • GVA in the UK advertising & marketing sector increased by 10.9 per cent year on year in 2014, and by a compound annual growth rate of 8 per cent between 2008 and 2014.

  • There are 482,000 advertising and marketing jobs in the UK creative economy, including 329,000 that are advertising and marketing roles outside the creative industries. Of all the creative sectors measured by the ONS, advertising and marketing has the highest percentage of roles outside the creative industries (68.2%).

And when it comes to digital advertising, the figures are just as interesting.

  • Of the estimated £20bn spent on UK advertising in 2015, £6.3bn is predicted to have been digital including £1bn on mobile.

  • The UK online advertising market is expected to be 59% programmatic by 2017, the highest level in europe. UK programmatic advertising spend has grown by 60% year on year.

  • Among UK consumers, 63% use social media; among Millennials, the figure is 86%.

  • On average, UK adults use their phones 264 times a day. for 15-29 year-olds, the figure is 387 times, and for 15 year-olds it is 420. Most mobile use (68%) is at home.

Although enticing, foreign businesses need to tread carefully when planning online advertising campaigns which target or have reach to the UK market.

The main enforcer of advertising in the UK is the Advertising Standards Authority (ASA). The ASA is an independent regulator, set up by the advertising industry body Committee of Advertising Practice (CAP) to enforce CAP’s self-regulatory codes for broadcast advertising (BCAP Code) and non-broadcast advertising (CAP Code).  The self-regulatory regime sits alongside the legislative framework controlling unfair commercial practices, including the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) and the Business Protection from Misleading Marketing Regulations 2008 (BPRs) (which implement European Union law on unfair commercial practices, and misleading and comparative advertising respectively), as well as industry-specific legislation governing advertising of alcohol, diet products, food products, financial services, tobacco products, pharmaceuticals, and health and environmental products and services.

The ASA regulates most forms of advertising, from magazine and newspaper adverts to posters, television, radio and direct mail advertising.  The ASA also has power to investigate complaints relating to online advertising, including banner adverts, paid-for (sponsored) searches and, since 2010, marketing on companies’ own websites and on non paid-for space under their control, such as social networking sites like Facebook and Twitter.

If a foreign business is launching a UK-based advertising campaign, then it should carefully comply with the Codes and the legislative framework (more detail below).  The ASA has limited scope to deal with complaints about adverts that originate outside the UK, although, depending on the country of origin, the ASA will often refer a complaint to the relevant advertising regulator in that country for their investigation. Twenty-four European countries are members of the European Advertising Standards Alliance (EASA), an alliance which promotes reciprocity among national advertising regulators and has a cross-border complaints system.

Under the CAP and BCAP Code, all advertising in the UK (or targeting the UK market) must be legal, decent, honest and truthful, respect fair competition and be prepared with a sense of responsibility to consumers and to society.  In addition, advertising must not mislead (or be likely to do so) directly or by  omission or by presenting information in an unclear, unintelligible or ambiguous manner or by exaggeration, and advertisers must be capable of objectively substantiating their claims (express of implied) by documentary evidence if they are challenged.  

Mere “puffery” is allowed, but only where the claim is obviously exaggerated or subjective (for example, a claim that a product is “out of this world” would not be construed literally). The ASA is extremely active in monitoring and adjudicating advertising and we have seen numerous occasions where business’ creative advertising, bold claims or attempts at puffery have been found to breach the Codes.  For example, the ASA has consistently found that claims such as “best”, “most advanced”, “better”, “best value” have fallen foul of the Codes; although these claims may be considered as puffery in other jurisdictions, the ASA would require the marketer to show that it is indeed the “best” or “most advanced” in the class, by way of documentary evidence. A solution in these cases could be to highlight the superior elements of the product or service advertised, such as it being “lightest in class” or “smallest on the market” if evidence bears that out.  Care should also be taken to avoid advertising that, for example, glorifies alcohol consumption, excessive speed while driving or makes inappropriate “organic” claims.

The ASA’s powers to sanction infringers are fairly limited; they have no power to impose fines, but they can order non-compliant advertisers to take down all infringing adverts. Rulings are published weekly in full detail on the ASA’s public website (the so-called “name and shame” system).  The ASA is also able to refer serious or persistent breaches of the Codes to local weights and measures authorities (local authority regulators that have powers to investigate traders acting outside the law) and to the Competition and Markets Authority, which have greater powers to enforce consumer protection legislation under Part 8 of the Enterprise Act 2002.

Foreign businesses targeting the UK market should therefore take care to review their advertising and marketing practices prior to publication. Crucially, advertising which is seen as mere puffery abroad may not be in the UK.  Businesses must therefore ensure that they hold documentary evidence to prove all claims (express or implied) which are capable of objective substantiation, and take care to comply with the Codes, not only in respect of traditional advertising on television, billboards and in magazines, but also online and on their own websites if directed at the UK market.