Posts Tagged ‘Regulatory’

Citroën ad banned by watchdog for causing epileptic seizures

Wednesday, January 18th, 2012

The Advertising Standards Authority has today banned an advert by French car maker Citroën for its DS4 model after it triggered seizures in a number of viewers who suffer from photo-sensitive epilepsy.

The TV advert which was seen on Sky, Watch, ITV, Quest and UK Gold featured scenes in rapid succession culminating in 304 alternating black and white ‘YES’ words appearing across a screen.

Nina Best, a specialist in advertising law at Browne Jacobson commented:

“Adverts must not include visual effects that are likely to affect adversely members of the audience with photo-sensitive epilepsy. Advertisers must remember that the rules are not only about the words or images included in their advertisement, but also the way they appear is subject to constraints. It is not only what you say that can hurt but the way you say it.”

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

Nina Best
0115 976 6529
nbest@brownejacobson.com

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Opportunities for street trading and advertising during the Olympics

Thursday, December 1st, 2011

This week, the application process opened for permits to advertise, or trade in the street, in the vicinity of the London Olympics. The application process is open until 29 February 2012.

Specific Regulations, which prohibit unlicensed advertising or street trading, have now been finalised. The law is wide reaching and can catch, for instance, persons given branded clothing to wear, and pre-existing advertising in the defined areas. The law is also strict – officers have extensive powers to enforce it, and directors may find themselves personally liable for their company’s actions.

It is fair to say that the wide scope of the laws in place during the London Olympics may catch some businesses by surprise. It is therefore important to plan your marketing and trading activities early, so you can still seek advice and/or acquire permits.

Further information can also be viewed at Olympics – law and practice.

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

Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com

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Historic bribery case lands court clerk behind bars

Friday, November 18th, 2011

Munir Yakub Patel, an administrative clerk, made legal history today after being handed a three-year prison term for bribery and ordered to serve six years concurrently for misconduct in a public office.

Patel pled guilty on October 14 this year to requesting and receiving a bribe intending to improperly perform his functions, contrary to Section 2 of the Bribery Act. Patel was charged in relation to his employment at Redbridge Magistrates Court and was the first person charged since the Act came into force.

The imposition of a prison sentence for a relatively minor instance of bribery shows very clearly that the Act will not just be used against big corporates and sends a powerful message to individuals and smaller businesses. If businesses have not yet put in place suitable procedures to ensure compliance with the Act then this case should serve as a reminder as to why they need to so. The threat of unlimited corporate fines and prison for employees is very real.

Matthew Woodford

Matthew Woodford
0121 237 3965
mwoodford@brownejacobson.com

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How clean is your local?

Monday, August 23rd, 2010

Thousands of food businesses will have their hygiene ratings made public from 1 October.

Hygiene ratings will be shown on a numeric scale. A rating of five indicates very good food hygiene standards. There is then a sliding scale to a zero rating which indicates that urgent improvement is necessary.

The FSA today published the newly designed branding that intends to make it easy for consumers to understand and use food hygiene ratings. The design is big and bold.

Although the small print provides that the guide is not a guide to food quality, who would want to dine in an establishment where “URGENT IMPROVEMENT IS NECESSARY”? With hygiene ratings often being the subject of intense debate between the local authority and establishment, and the huge potential for the food business to lose considerable business following receipt of a low rating, is it really fair to force this businesses to display this label?

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

Nina Best
0115 976 6529
nbest@brownejacobson.com

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The BP oil spill and retrospective legislation

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?

Fiona Carter

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

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The ASA extends its reach online

Thursday, March 11th, 2010

The Advertising Standards Authority can require that adverts deemed to be misleading, unfair or offensive, are not to be repeated. But with the expansion of digital media, a noticeable gap in the ASA’s jurisdiction has emerged – the ASA only adjudicates on complaints relating to paid-for advertising.  

Now this gap is to be plugged. The Advertising Association has recommended that the ASA’s remit be extended to cover marketing communications on companies’ own websites. It means that website owners will now need to review their own websites’ content to ensure that they can prove that they comply with the CAP codes.

Key provisions from the Code include that:

  1. marketers must hold evidence to substantiate their claims
  2. marketers should ensure that prices are clear and match the products illustrated
  3. special care should be taken when products intended for adults may fall into the hands of children
  4. claims comparing your products to your competitor’s products are subject to strict conditions.

If the recommendation is adopted, these changes could come into effect from September 2010.

With advertising in digital media becoming increasingly dominant in the marketplace, this was an obvious decision to make. Our immediate thoughts are: will businesses seek to use this to their advantage by complaining about their competitor’s websites? And what implications will this have on the use of user-generated content in marketing?

Fiona Carter

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

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New sentencing guidelines for corporate killing offences

Friday, March 5th, 2010

Following on from the news that the first corporate manslaughter trial is to be adjourned until October 2010 at least, it is worth discussing the new sentencing guidelines which have recently been published for sentencing of Corporate Manslaughter and Health & Safety Offences Causing Death. The guidelines can be found at www.sentencing-guidelines.gov.uk, some interesting points to note from the guidelines:

  • The guidelines do not just apply to Corporate Manslaughter – they also apply to health and safety offences, where the offence was a “significant cause” of death. It is not necessary to prove that death was a result of a health and safety breach to prosecute such offences. However if the prosecution can prove this anyway, it will result in a much larger fine.
  • The guidelines state that the starting point for a fine where a health and safety offence has caused death would be £100,000. For corporate manslaughter, the starting point should be £500,000, increasing to millions of pounds for larger companies. However, it could have been worse – the Sentencing Advisory Panel had initially recommended that fines be linked to a company’s turnover, with the starting point for a fine being 5% of the relevant figure.
  • The guidelines set out a list of factors which will contribute to whether the fine is reduced or increased from this starting point, including whether there has been cooperation with the prosecution, whether there have been any failures to follow previous advice, and whether  the company had a good health and safety record before. Added to this list are the questions of whether or not the injured person was from a vulnerable class (e.g. foreign workers), and the degree of participation of senior management in the breach.
  • The fine should be set at a level which is appropriate to a company’s means to pay – the sum which is fined is in no way intended to reflect the value of a human life.
  • Publicity orders, ordering that the fact that a company has been convicted of corporate manslaughter be publicised, should ordinarily be made when a company is convicted of that offence.

Ultimately, the real question is – will the continuing focus on increasing sentences for health and safety offences actually result in companies taking better precautions?

Fiona Carter

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

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