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CAP Code remit

Thursday November 8, 2018 at 12:57pm

Helen Hart, Regulatory Affairs Manager, IPM 

On Wednesday 7th November I attended a meeting of CAP's promotional marketing and direct response panel, which provided feedback to the ASA and CAP about issues directly affecting promotional marketing. This is of direct relevance to the IPM and its members.

One of the issues that arises is deciding whether something falls within the remit of the CAP Code and in particular the promotional marketing section. Quite often you see ASA adjudications ​in which the advertiser has claimed that their marketing material wasn't advertising and therefore didn't fall within the remit of the CAP Code, and so the ASA should not be dealing with it. Generally the ASA takes a robust view of its role and the scope of the Code, taking action if it believes certain activity is within scope.  Sometimes CAP and the ASA ask their advisory panels for an industry view.

The CAP Code includes a section at the beginning which sets out its scope. It includes obvious and more traditional areas such as press and television advertising, as well as possibly less obvious such as the content on advertisers' own websites and in tweets.  

However, this section does not specifically define advertising, so there is still room for disagreement. For example, in the past, people have argued that leaflets about wind farms were not advertising. The distinction between editorial and advertorial is constantly being considered, especially when it comes to influencer and social media marketing.  

As well as the remit of the Code generally, section 8 of the Code applies specifically to sales promotions, so extra arguments can arise about whether an activity is a promotion or, for example,  just a business scheme which does not include promotional aspects. A non-exhaustive list of promotional marketing techniques includes: 'two for the price of one' offers, money-off offers, text-to-wins, instant-wins, competitions and prize draws. The rules do not apply to routine, non-promotional, distribution of products or product extensions, like one-off editorial supplements (in printed or electronic form) to newspapers or magazines.​

CAP has issued guidance on remit in which it points out that there are many shades of grey involved in decisions about what is and what is not covered by the Code and the considerations are not always straightforward. If marketers are in any doubt, they can seek advice from the Copy Advice team or from the IPM Legal Team on whether their chosen medium is likely to be subject to the CAP Code. The ASA has also published similar guidance which includes useful examples.
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