Archive for the ‘Regulatory’ Category
Thursday, April 28th, 2011
We have reported that the ASA, with effect from March 2011, would be extending its remit to regulate marketing communications made online. This now includes statements made on marketer’s own websites.
The first such adjudication was published yesterday. The ASA has held that a claim made on the Maperton Trust’s website – that its product repelled head lice – should not be made, since the Maperton Trust did not produce the necessary evidence to support that claim.
We have already had queries from businesses concerned about this extension. Our view is that this first decision reinforces the fundamental principle that a marketer should always be able to objectively substantiate every claim before it is made. What this decision does not address are any of the particular issues arising from online marketing, such as user-generated content, and the enforcement of codes on the use of social media. However we are confident that decisions touching on these issues will not be too far away - and we will keep you posted.
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
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Rating: 10.0/10 (2 votes cast)
Tags: advertising standards authority, ASA, maperton trust, marketing communications, online marcoms ruling, online marketing, online marketing regulation
Posted in Advertising & Marketing, Brands, Regulatory | No Comments »
Tuesday, April 12th, 2011
Guidance by the Crown Prosecution Service recently released on the CPS website has now recognised that when police officers and firefighters perform a heroic act, the public interest may not be served by taking forward a prosecution.
The notes outline that police officers and firefighters may breach the Health and Safety at Work Act 1974 – s.7 – by failing to take reasonable care of their own safety, however in such circumstances (and where the safety of others is not put at risk) a prosecution is now not likely to follow.
The decision will still be taken by the Senior Prosecutor in charge of the case and will be assessed on a case by case basis, but should demonstrate that heroic acts by those working for the public should be recognised and acknowledged by the CPS rather than prosecuted.
Posted by Elaine Heaney, who specialises in health & safety/criminal law ; provides advice and representation from investigation through to court proceedings in both the Magistrates and Crown Court.
Elaine Heaney
0115 976 6090
eheaney@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: CPS, firefighters, Health and Safety at Work act 1974, police officers
Posted in Health & Safety, Regulatory | No Comments »
Wednesday, April 6th, 2011
There have been reports that the 3D effect on Nintendo’s new flagship console, the 3DS, may make certain users feel sick. Nintendo are aware of this possibility, and prudently advise users to take a break after 30 minutes of gaming. The 3D can also be turned off. But we know it can be difficult for companies to regulate how their consumer products are used.
Not all retailers are offering a full refund to users who return the console for this reason. The stores are taking the line that as the individual units are not “faulty,” the goods are fit for purpose and so comply with the Sales of Goods Act 1979.
If a product is not “safe” for its foreseeable use, then we think it cannot be “fit for purpose” – but whether this applies to the 3DS will only be answered if the issue is litigated, by a consumer or by Trading Standards.
Even if the stores are right, this negative PR will undoubtedly harm the product’s sales.
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
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Rating: 9.5/10 (2 votes cast)
Tags: Nintendo, Nintendo 3DS, Sales of Goods Act 1979, trading standards
Posted in Advertising & Marketing, Brands, Regulatory | No Comments »
Wednesday, March 30th, 2011
Justice Secretary, Kenneth Clarke has announced today that the Bribery Act 2010 will come into force on 1 July 2011.
Clarke tried to dispel the concerns expressed by businesses saying that ‘combating the risks of bribery is largely about common sense, not burdensome procedures’, and that he does not expect a ‘large number of prosecutions’.
The guidance clarifies that ‘bona fide hospitality’ and similar expenses on improving the image of a commercial organisation or establishing ‘cordial relations’ are not intended to be caught by the Act. Facilitation payments will continue to be caught by the Act as they are under previous bribery laws.
The guidance clarifies what is meant by “adequate procedures.” The adequacy of procedures will be considered in accordance with the risk of bribery faced by an organisation in light of its size and type, though other factors will also be relevant.
The guidance will no doubt help businesses to prepare for the Act. How it will ultimately be enforced remains to be seen.
Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.
Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: bribery act 2010, bribery laws, hopitality, Kenneth Clarke
Posted in Brands, Manufacturing, Regulatory | No Comments »
Friday, March 25th, 2011
In a response to Asda’s Price Guarantee promotion, Tesco’s PriceCheck scheme promised to refund shoppers double the difference, if they could show that the products they bought at Tesco were on sale for less in Asda. However Tesco has now changed the offer to limit refund vouchers to a maximum of £20 per shop.
The reason? It seems that some customers were making money out of Tesco by specifically seeking out products which a competitor had on promotion. One consumer claimed to have made £600 from the promotion already.
Tescos said that fewer than one in 5,000 customers had been awarded vouchers over £20. However Asda took the opportunity make this statement:
“If you claim to be the cheapest, call me old-fashioned, but it helps to really be the cheapest.”
The moral of the story? Make sure you think carefully and get your terms and conditions right BEFORE you go to the market with a promotion!
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
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Rating: 10.0/10 (3 votes cast)
Tags: advertising, Asda's price guarantee promotion, promotions, Tesco's PriceCheck
Posted in Advertising & Marketing, Brands, Regulatory | 1 Comment »
Monday, March 21st, 2011
We understand that the long awaited Ministry of Justice guidance on the Bribery Act 2010 may finally be released as early as next week. However a draft of the guidance appears to suggest that foreign companies listed on the UK stock market but with no other presence in the UK may have little to fear.
It is suggested that these foreign companies may gain an advantage – some would say unfair – over UK companies as the guidance suggests that they may not be liable for prosecution under the Act. The change in treatment of these companies comes after pressure from the London Stock Exchange and investment banks which generate millions from foreign listings. Some might think it ironic that the government should consider reining back the scope of the Bribery Act for a financial gain!
Nevertheless, this highlights the competitive pressure that has compelled the Government to review the Act before implementation.
Firms will have 3 months from the date of the release of the guidance to prepare for the full force of the Act but they should not delay in their preparation.
Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.
Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Rating: 9.0/10 (2 votes cast)
Tags: London Stock Exchange, Ministry of Justice, The Bribary Act 2010
Posted in Advertising & Marketing, Brands, Manufacturing, Regulatory | No Comments »
Friday, March 11th, 2011
The Advertising Standards Authority (ASA) has banned a Walkers crisps promotion which offered entrants a chance to win £10 if they could correctly predict where and when in the country it would rain.
The promotion initially allowed entrants to enter up to twice a day, however one person complained when they had purchased enough packets of crisps to enter twice a day but were later informed that entries had been reduced to just one per day.
Though Walkers had contacted all customers who had registered an account in the launch phase by email about the change in terms and conditions, the ASA said the promotion had not been administered fairly. Over 40,000 people had entered before the T&C’s were changed who would expect to be able to purchase and bank promotional codes in accordance with the original T&C’s.
Advertisers should take note that the ASA will not be sympathetic to changes in T&C’s once promotions have been launched. Advertisers need to take advice to make sure promotions are fully compliant with the Advertising Codes before running them.
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
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Rating: 10.0/10 (2 votes cast)
Tags: advertising codes, advertising standards authority, ASA, Wallkers crisps
Posted in Advertising & Marketing, Brands, Regulatory | No Comments »
Monday, February 28th, 2011
Nescafe has today made history by being the first company to take advantage of the new rules on product placement on UK TV. However considering all the hype that surrounded the new rules, the first ever paid-for placement of a product on UK TV appears to have gone unnoticed.
The company paid £100,000 for its Dolce Gusto coffee machine to be placed on ITV’s This Morning’s kitchen over the next 3 months. However the machine was only visible for seconds at a time, sitting idly behind Phil Vickery and would not have been noticed unless it was actively sought out.
This is a nervous start by advertisers, and we may have to wait for shows such as the X-Factor to test the waters and see how far the new rules will go. Nevertheless, although Nescafe’s Dolce Gusto went largely unnoticed this morning the press it has since received as the first to take advantage of the new rules make it worth while. Bet you spot it tomorrow!
Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.
Nina Best
0115 976 6529
nbest@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: advertising, Nescafe, product placement, This Morning
Posted in Advertising & Marketing, Brands, Regulatory | No Comments »
Friday, February 25th, 2011
Earlier this week Ofcom announced an extension in the length of advertising breaks in films and single TV dramas. This will last for a trial period of 12 months beginning 28 February 2011, the same day that the new rules on product placement take effect.
The trial will only apply to commercial public service broadcasters, such as ITV, Channel 4 and Channel 5.
Currently broadcasters can only show up to 7 minutes of adverts each hour, but this will be extended to 12 minutes, in line with the current rules in relation to other programmes such as soaps and documentaries.
With new rules on product placement allowing commercial references within programmes, and an extension of the length of time adverts can be shown between them, brands have never had such opportunity to find their way into our consciousness. Maybe this is what is needed to make advertisers move back to this more traditional form of advertising medium rather than focusing most of their marketing efforts on the social media networks as they have been doing of late.
Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.
Nina Best
0115 976 6529
nbest@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: advertising breaks, broadcasters, ofcom
Posted in Advertising & Marketing, Brands, Regulatory | No Comments »
Monday, February 14th, 2011
Product placement logo
Just before Christmas 2010 Ofcom confirmed that as of 28 February 2011, product placement will be permitted in UK TV programmes. Unlike our more relaxed US cousins, as part of the new rules a logo must appear for 3 seconds at the start, the end, and after any advertising breaks within programmes containing product placement.
Ofcom today revealed what that logo will look like. The monochrome double P will be used to signal to viewers that the programme they are about to see contains product placement.
The use of the logo is intended to combat “surreptitious” advertising. In practice this cautious approach may be an added bonus for advertisers who will get two bites at the cherry. As well as being able to place products within programmes, advertisers have the added benefit that broadcasters must tell the viewer that their product is there, drawing the viewer’s attention to what they may otherwise not have noticed at all.
Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.
Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Rating: 7.5/10 (2 votes cast)
Tags: advertising, Brands, marketing, ofcom, product placement
Posted in Advertising & Marketing, Brands, Regulatory | No Comments »
Wednesday, February 9th, 2011
The Government proposes to expand the scope of the Freedom of Information Act (FOIA) to include several new bodies, including the ASA.
Currently, the ASA is not obliged to answer FOI requests for information that a brand uses to attempt to substantiate its claims. However, if the Government do include the ASA in the Act, this could mean it would have to provide the details presented by brands for use in adjudications to anyone making an FOI request.
The ASA are fundamentally against this proposal as it fears it will lose the goodwill that it shares with brands; who incidentally provide it with its funding – essentially it does not want to bite the hand that feeds it.
From a brands point of view, this proposal could be incredibly detrimental and lead to commercially sensitive information being made public. For example, if a complaint is made about a health claim made by a food brand, that company would have to provide evidence that the claim can be justified. This could lead to “secret” ingredients and research information becoming public knowledge and leave the brand without its je ne sais quoi.
Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.
Nina Best
0115 976 6529
nbest@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: ASA, Brands, freedom of information act
Posted in Advertising & Marketing, Brands, Regulatory | No Comments »
Thursday, February 3rd, 2011
The High Court has ruled that those behind 5 UK prize draws are in breach of the consumer protection from Unfair Trading Regulations 2008 on the grounds that they:
- created the impression that a prize had been won when in fact only a chance to purchase a low value item was offered
- described a holiday voucher as a prize when in fact it would cost a significant sum to go on the holiday, and
- downplayed the costs of premium rate calls to claim a prize.
This Judgment shows that the OFT are willing to bare its teeth when it comes to making sure that consumers are not misled. Whilst criminal enforcement will only be used in the more serious cases of breach, the Government’s proposal for the OFT to have a range of civil sanctions at its disposal is likely to lead to less serious breaches being tackled by the more stringent enforcement action of the OFT rather than the perceived tickle of the ASA in the near future.
Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.
Nina Best
0115 976 6529
nbest@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: ASA, Consumer protection, OFT, Unfair Trading Regulations 2008
Posted in Advertising & Marketing, Brands, Regulatory | No Comments »
Wednesday, February 2nd, 2011
In the supermarket price war, Asda’s price guarantee is a major weapon. Asda, using a moneysupermarket.com comparison, offer to refund the difference if your shopping would have been cheaper elsewhere. But on Wednesday, the ASA ruled that some of the adverts for this promotion were misleading.
Interestingly, in upholding certain complaints, the ASA did not follow the advice which Asda had received from Clearcast.
We anticipate that this ruling will result in a lot of negative press for Asda. However, reading between the lines, the ASA only upheld four of the nine complaints made. They did not rule that the scheme could not continue to be advertised, or that Asda were more expensive than Tesco’s – they only ruled that the presentation of certain adverts must be changed, because they falsely implied Asda were generally cheaper or that the promotion covered items such as books.
This highlights the importance of taking advice, and being sure that your complaint can procure the desired outcome, before making it.
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
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Rating: 9.0/10 (1 vote cast)
Tags: ASA, Asda, misleading adverts, supermarket price war, Tesco
Posted in Advertising & Marketing, Brands, Regulatory | No Comments »
Monday, January 31st, 2011
When Dermot O’Leary prompted viewers to download singles of Diana Vickers and Michael Buble on the X Factor last October Ofcom decided to investigate. Despite accepting that this was due to a script error, the media watchdog was concerned that this had happened on two separate occasions and found that the X Factor had breached rule 10.3, ‘products or services must not be promoted in programmes’.
There is a further rule in the Broadcasting Code which prohibits product placement. However X Factor did not breach this rule as product placement would involve a reference to a product in exchange for valuable consideration. There was no financial arrangement in place here.
Interestingly, on 28 February 2011 new rules will come into effect which will subject to exceptions permit product placement in UK TV programmes. Despite this the new rules would not change the outcome for X Factor. This is because the new rules will still not allow positive references to products which directly encourage purchases.
Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.
Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: broadcasting code, ofcom, product placement
Posted in Advertising & Marketing, Brands, Regulatory | No Comments »
Thursday, January 20th, 2011
The Government has revealed plans to set minimum alcohol price levels in England and Wales. The ban, on the sale of alcohol below the rate of duty plus VAT, will see a minimum price of 38p for a can of lager and £10.71 for a litre of vodka.
This move is almost certainly not going to affect smaller retailers, the vast majority of whom are not able to sell at such low prices. The move is aimed at supermarkets which have been using alcohol as a ‘loss leader’. However all retailers should keep an eye out for any further increases as this move has been referred to as ‘an important first step’.
This is a weak move by the Government and is unlikely to significantly reduce crime and alcohol related health issues. The question remains as to how high the price floor must be in order to be effective.
Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.
Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: Brands, minimum alcohol prices, retailers, sale of alcohol
Posted in Brands, Food & drink, Regulatory | No Comments »
Friday, January 7th, 2011
As we all know and have no doubt complained about at some point the rate of VAT increased on 4 January 2011 from 17.5% to 20.0%. Although it will increase their expenditure, this might not deter consumers from most small purchases. For example if an item costs £100, the raise only equates to a £2.13 increase.
But for retailers, the increase creates a particular dilemma. The Price Marking Order 2004 requires all retail businesses selling to consumers to display their prices inclusive of VAT. These businesses therefore have 2 options:
1. continue with their current prices, and absorb the difference (for now at least); or
2. change the price of all of their non-VAT exempt goods, and incur potentially significant costs in terms of re-pricing, amending till systems and other costs.
The answer will be different for each business and product. Retailers should consider with what changes their customers are willing and able to cope.
Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.
Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: re-pricing, retailers, VAT increase
Posted in Brands, Regulatory | No Comments »
Wednesday, December 22nd, 2010
The upcoming implementation of the Bribery Act 2010 next year continues to be a major concern for UK businesses, but with Christmas approaching the Serious Fraud Office (SFO) has offered some extra help.
The question on the lips of every UK company is “how will corporate hospitality be dealt with under the new legislation?” The SFO have volunteered a preliminary answer. Richard Alderman, Director of the SFO has said that ‘sensible and proportionate expenditure on hospitality will remain perfectly lawful under the Bribery Act’, and that the SFO ‘will be happy to help by publishing its views.’ This will follow the Ministry of Justice’s final guidance on the act, due in January, and the Attorney General’s guidance to prosecutors.
This leaves plenty for businesses to look forward to in the new year but it remains to be seen just how practical all of this guidance will be. Meanwhile, enjoy a very hospitable Christmas.
Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.
Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: Bribary Act, corporate hospitality, SFO
Posted in Brands, Government bodies, Manufacturing, Regulatory | 1 Comment »
Friday, December 3rd, 2010
The new offence, which comes into force in April 2011, of “failing to prevent bribery” is a particular concern for businesses. This week there has been a discussion as to whether EU procurement rules, which could ban convicted companies from bidding for large public contracts if the company has been convicted of a bribery offence, will be disapplied in circumstances where despite a management failure to prevent bribery, there was no intention to commit an offence.
The Law Society recently published its response to proposed guidance on ‘adequate procedures’ a company needs to take to prevent persons associated with them from engaging in bribery. They make a number of recommendations and state they are ‘concerned that, particularly for smaller firms, the lack of practical guidance will make putting in place adequate procedures difficult’.
The Bribery Act is undoubtedly a step forward in reducing corruption in business transactions, however many businesses are concerned that without clear, practical guidance UK firms will be at a competitive disadvantage.
Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.
Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Rating: 7.0/10 (1 vote cast)
Tags: bribery act, Procurement
Posted in Competition, Manufacturing, Procurement, Regulatory | No Comments »
Friday, September 10th, 2010
Since October 2009, the OFT has been studying to try and find out how the “average consumer” thinks. This is an important question because the Consumer Protection Regulations (‘CPRs’) require the OFT to consider whether an advert making a price offer has complied with the regulations by reference to whether it would mislead the “average consumer”.
The OFT has now published a series of proposals with respect to price offers. The ideas are still draft and the OFT is looking to discuss them at roundtable meetings with interested parties.
Companies would be advised to consider the proposals carefully, as although they do not represent new rules and are only said to be a “suggested starting point for the OFT to use when assessing whether an advertised price promotion breaches the CPRs”,if the proposals are adopted, the commonplace pricing practices described will to all intents and purposes become illegal.
Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.
Nina Best
0115 976 6529
nbest@brownejacobson.com
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Rating: 8.0/10 (1 vote cast)
Tags: consumer protection regulations, OFT
Posted in Advertising & Marketing, Brands, Regulatory | No Comments »
Friday, May 28th, 2010
Efforts are continuing to contain the oil spill taking place in the Gulf of Mexico. Existing US law makes the parties responsible for an oil spill liable for clean-up costs, but limits to $75 million their exposure to other liabilities. But there is a move in Congress to raise that limit to $10 billion with the intention of applying this law retrospectively to BP.
Laws with retrospective effect are a classic example of a human rights abuse. Equally in a business situation, those seeking and providing insurance should be able to ascertain the costs risk arising. But in some cases the US Supreme Court has upheld such laws as constitutional. One rationale is that such laws are “regulatory” in nature rather than “punitive”. A similar trend for regulatory enforcement has developed in the UK recently with use of “non-criminal” sanctions, such as civil enforcement orders and penalties, which allow for the burden of proof to be lowered due to the “civil” nature of the enforcement.
So does the US attempt to pass retrospective legislation amount to an abuse of Human Rights – or good economic sense?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: oil spill, Regulatory
Posted in Manufacturing, Regulatory | No Comments »
