Advertising: It’s a minefield on the floor

Flooring contractors can do what they want with respect to advertising but by ignoring the rules a tailwind of discomfort is sure to follow

CONSIDER the trouble UK Flooring Direct found itself in with the Advertising Standards Authority (ASA). An email for the firm stated, ‘OFFER ENDS TOMORROW – HALF PRICE!! HALF PRICE SAVINGS ON SPECIAL FLOORING ENDS MIDNIGHT TOMORROW’.

The recipient challenged whether the claims ‘OFFER ENDS TOMORROW’ and ‘ENDS MIDNIGHT TOMORROW’ were misleading and could be substantiated. The ASA upheld the complaint in August 2015.
Others in the sector, including United Carpets (April 2014), Flooring Megastore (March 2016), Wood & Beyond (February 2012) have fallen foul of the rules too.

The rules
Starting with the ASA, the UK’s independent regulator of advertising across all media, it applies two codes of practice - CAP and BCAP Codes – which it uses to regulate non-broadcast and broadcast advertising respectively.

Donald Mee, an associate at Harbottle & Lewis LLP, says that the Consumer Rights Act 2015 (CRA) is also relevant; this sets out consumers’ rights and remedies. Says Mee: ‘Any public statements made by a merchant about goods and services (including advertising) will be relevant in assessing whether the goods comply with the quality standards set out in the CRA.’

Firms should also be aware of the Consumer Protection from Unfair Trading Regulations 2008 (CPR’s). The premise behind the CPR’s is simple - they prohibit any unfair, misleading and/or aggressive commercial practices. Further, as Mee notes, ‘they also set out 31 ‘blacklisted’ practices that are expressly banned; these include displaying a quality mark without authorisation, falsely claiming to be a signatory to a code of conduct, and falsely stating that a product will be available for a very limited time in order to obtain an immediate decision.’

Responsibility for enforcement of the CRA and CPR’s sits with the Competition and Markets Authority (CMA) and Trading Standards.

Activities allowed
The CAP and BCAP Codes cover a number of specific areas and Mee says merchants would be advised to review the relevant code when planning any advertising. ‘As a general rule, adverts must be identifiable as adverts, not be misleading and not likely to cause harm or serious or widespread offence.’

He explains that the two codes set out particular restrictions depending on, among other things, who the advert is targeting and the product that is being advertised. Particular rules also apply to comparative advertising.

Because the CPR’s prohibit unfair, misleading and/or aggressive commercial practices, the ASA will take factors identified in CPR’s into account when it considers whether a marketing message breaches the CAP or BCAP Code.

The rules make an advert misleading if it’s likely to deceive consumers and likely to cause consumers to take ‘transactional decisions’ that they’d not otherwise have taken with information provided or omitted.

While most consider the rules apply to print, radio and TV, merchants must note that the ASA rules also apply to social media. Adverts and social media posts must be clearly identifiable. So just as with traditional media, the ASA will consider complaints about adverts on social media too. The same applies to promotional activities such as competitions - CAP (Section 8) and BCAP (Section 28) contain particular rules here.

What are the penalties for breaching the law?

With the principles established, the natural question is what happens if a complaint is upheld? ‘Quite simply’, says Mee, ‘if the ASA finds that an advert breaches the CAP or BCAP Code, it will ask the advertiser to withdraw or change it.’

Although the ASA cannot impose fines, the ASA does have other sanctions at its disposal which include publishing its decisions, asking publishers and media owners to refuse space for an advertisement until it has been changed. It can also refer the advertiser to Trading Standards or the CMA.

But while some may consider the ASA toothless – it’s not – Mee doesn’t recommend engaging in a practice that is banned under CPR’s as ‘these are criminal offences punishable by a fine, up to two years in prison or both.

Consumers also have civil remedies against entities that breach CPR’s, these include unwinding the relevant transaction or receiving a discount.’ This legal remedy could prove very expensive.
And as Mee noted earlier, ‘anything you say in an advert may be taken into account and used when a consumer makes a claim under the CRA. Merchants need to remember that consumers can reject goods that are defective (and receive a refund) within 30 days of delivery (or installation, if that is part of the contract).

If a consumer doesn’t reject defective goods, they may require that the goods are repaired or replaced and, if this is not possible, the consumer has the right to a reduction in price of the goods. Consumers can request that defective services are performed again and also have a right to a reduction in the price of defective services.’