What are the key developments in advertising regulation to look out for in 2023?

On Wednesday afternoon we held our Advertising & Marketing Law Annual Review. We again had a record number of guests tune in, so a huge thank you to all those who attended.

Here’s what we think you should look out for in these 6 key advertising and marketing sectors in 2023:

Environmental advertising 

• We’re not only expecting the ASA to continue with strict enforcement around environmental advertising, but we also expect them to publish stricter guidance around environmental claims, specifically ‘net zero’ and ‘carbon neutral’.
• The CMA is currently investigating eco-friendly claims made by ASOS, Boohoo & George at Asda. We expect these to be complete in the first half of this year. The CMA will then move on to look at claims made by the travel, transport and FMCG industries, specifically around food, cosmetics and cleaning.
• Could Schedule 1 of the Consumer Protection Regulations be changed for the first time since they were implemented in 2008? We think 2023 may be the year the CPRs are updated to include unsubstantiated green claims. This would be big. Standardised definitions of terms for marketing and labelling may also be on the cards this year.
• There is also the potential for an EU Directive on misleading green claims. Having said that, there is an argument that this isn’t necessary as the Unfair Commercial Practices Directive can be used already, but it’s worth keeping an eye on to see what happens.

Influencer marketing

• The Department of Culture, Media & Sport select committee published the government’s response to their report in July 2022, which included a number of recommendations, including the possibility of yet another code of conduct. We’re aware the government is speaking to interested bodies, so watch this space.
• The Digital Markets, Consumer & Competition Bill was mentioned in the Queen's Speech 2022. This hasn’t been brought before parliament yet, so while this is uncertain, if it were to go ahead, it would have a big impact.   
• Also watch out for increased powers for the Competition and Markets Authority. This would have huge repercussions, potentially lead to greater, and more frequently awarded, fines.
• #ad is under scrutiny and is being heavily criticised. One size doesn’t always fit all and #ad is arguably not the clearest form of disclosure. Other jurisdictions are also adopting the requirement to use #photoshopped when an image has been digitally altered. Could this be adopted in the UK?  
• Platforms are also under scrutiny to create new tools to help with disclosure. It’s likely we’ll see platforms offer users more options to disclose commercial partnerships in 2023.  

Crypto advertising

• We’re going to be seeing the introduction of mandatory strongly worded risk warnings, as well as personalised risk warnings.
• There is likely to be a complete ban on inducements, whether they’re monetary or not. This will include all ‘refer a friend’ type schemes in the area.
• A necessary 24-hour cooling-off period for people who do make these investments is expected. 
• Appropriateness assessments will be a requirement.
• We’ve got a separate talk coming later in the year on this, so stay tuned; things are definitely going to get much more complicated and much more regulated in the crypto advertising space in 2023.

Direct marketing & AdTech

• We’re due an update on the IAB TCF decision; this will have huge ramifications so do watch out for our commentary on this matter.
• More regulatory action can be expected in this space!
• Hopefully, the Direct Marketing Code of Practice will be finalised from the Information Commissioner's Office.
• A Direct Marketing Association Certification Scheme would be interesting, so this is something to watch out for in 2023,
• The UK Data Protection and Digital Information Bill, and possibly revised EU e-Privacy Regulation, could potentially have significant impacts in 2023, as they will mean fines for e-privacy breaches will increase.

Online Safety Bill

• The Online Safety Bill is still ongoing. In December the bill went back to parliament and it has been significantly changed and diluted which should simplify things.
• The focus is on protecting children.
• Fraudulent advertising is still part of the bill.
• We’ll be running events on this throughout the year as the bill develops, so keep an eye on this blog to make sure you’re up to date.

HFSS food advertising

• HFSS rules on placement and online promotion came into force on 1st October 2022.
• But rules banning multibuy deals on HFSS foods and drinks, for example ‘buy one get one free’ deals, and restrictions on free refills for soft drinks have been delayed until 1st October 2023.
• A 9pm watershed for HFSS products and a restriction of paid-for HFSS advertising online has been delayed even longer, until 1st October 2025.
• The consultation on draft regulations brought forward to clarify key aspects of the new advertising measures is currently open and closes on 31st March 2023.

Thank you again for all those that joined, and many thanks to my partners Bryony Long, Geraint Lloyd-Taylor and Jo Farmer for joining me as speakers. We will be sending out copies of the slides and a recording of the webinar to all those who registered. Please let me know if you would like to be included.