UK Law and Practice Contributed by: Huw Morris, Dominic Bray, Nick Swimer and Rebecca Coleman, Lee & Thompson LLP
Best practice is set out in codes of practice published by industry associations to which member organisa - tions agree to be bound. 1.2 Enforcement and Regulatory Authorities ASA The ASA is the principal regulatory authority, being responsible for enforcing the Codes and handling complaints from consumers and competitors. It can request (but not compel) the removal or modification of non-compliant advertising and the withdrawal of certain privileges (eg, trading privileges on direct mail). ASA rulings are published weekly, with notable rulings re-published by national and trade press. In practice, the ASA’s principal “power” is the negative publicity associated with such adverse rulings, which can sig - nificantly impact brand reputation, especially in rela - tion to misleading advertising or social responsibility. The ASA publishes a list of repeat offenders and may refer egregious cases to the Competition and Markets Authority (CMA) or Trading Standards bodies, which can investigate and take action against parties that violate consumer protection law (including levying fines). In April 2025, CAP and BCAP updated the Codes to align with new consumer protections introduced by the DMCCA. CMA In recent years, the CMA has taken particular inter - est in transparency in influencer marketing, decep - tive online reviews, misleading pricing practices and greenwashing. Under the DMCCA, the CMA has additional enforce - ment powers, with the ability to take direct action and impose penalties of: • up to 10% of annual global turnover or up to GBP300,000 for breaches of consumer protection law; • up to 5% of turnover or GBP150,000 for breaches of binding undertakings or CMA directions; and • up to GBP30,000 for individuals who fail to comply with CMA investigations.
Additional penalties may be imposed for ongoing breaches and for providing misleading information. The CMA may also award affected consumers com - pensation or rights to cancel. Where criminal liability arises, the CMA can pursue criminal action through the Magistrates Court, leading to fines and up to two years’ imprisonment. Draft guidance on the new enforcement powers has been published by the government. ICO The ICO has regulatory oversight of data protection law and electronic marketing (email, SMS, etc). It generally encourages compliance through education and guidance but has the power to impose fines and enforce undertakings. The ICO cannot award dam - ages to affected individuals or businesses, who must instead go through the courts to obtain damages. 1.3 Liability for Deceptive Advertising Advertisers are primarily responsible for deceptive advertising published by them or on their behalf (including via affiliate marketing). Other entities involved in the creation or distribution of deceptive advertising may be held responsible, including crea - tive agencies, publishers and affiliates. Alongside brands themselves, influencers and endors - ers (particularly on social media) may be liable if they fail to disclose commercial relationships or otherwise breach the Codes or break the law. Consumer protection law may impose criminal liability on those engaged in misleading marketing practices, including trading companies and responsible directors if they commit or allow a criminal offence to occur. 1.4 What Is Advertising? Advertising is not defined in the Codes, which instead list the types of marketing communication that fall within the ASA’s remit, including marketing com - munications in television, radio, cinema, print, social media, email marketing, direct mail and promotional marketing. The remit includes online content (unless purely editorial) if it is “directly connected with the supply or transfer of goods, services, opportunities
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