Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Also known as: legal, law, prohibited products, illegal behaviour
Although the CAP Code is not statutory and neither CAP nor the ASA interprets the law, the self-regulatory system dovetails with law enforcement bodies and operates within an over-arching legal framework. The Code complements, reflects and, where appropriate, may go beyond the law. In some places it specifically refers to legislation (for example, in financial advertising, food and nutrition claims, or electronic cigarettes marketing) and in others it mirrors the law (for example, it prohibits prescription-only medicines being advertised to the public). Generally, however, the Code merely states that marketing communications should be legal (Rule 1.1), and reminds marketers that they have primary responsibility for ensuring that their advertising is legal (see more on Interaction with the law) and does not incite anyone to break the law (Rule 1.10).
Misleading claims about legality
Illegal advertising
It is unlikely that CAP or the ASA would comment on the content of a marketing communication if its distribution were illegal; for example, the Code does not apply to traditional flyposting or unsolicited faxes to individuals because both are generally illegal.
Prohibited products
Marketers should ensure that the advertised product or service is legal. In 2020, the ASA upheld a complaint about paid-for ads on Facebook for weapons, including firearms which were illegal to purchase or own in the UK, except to a minority of highly specialised professional customers. The ASA considered ads for such products were not suitable for a general audience. The ads also featured knives and swords with blades longer than three inches that were subject to significant legal restrictions, as well as a knuckleduster, a weapon which is banned in the UK. The ads for illegal or heavily restricted weapons, served to an unrestricted adult audience, were found to be socially irresponsible (ContextLogic Inc, 18 November 2020).
Even when marketing communications are not advertising prohibited products, featuring them in ads can still be problematic. A music video for a rap single, seen as a pre-roll ad on YouTube before an unrelated playlist, featured a number of scenes depicting the consumption of illegal drugs. The ASA considered that both featuring drugs, and depicting the use of drugs, was irresponsible in the context of an ad, particularly when it was seen in an unexpected context. (Bamby H2O, 24 March 2021).
Encouraging illegal behaviour
Marketing communications should not incite people to break the law. During the Covid-19 pandemic, the ASA considered that ads for a shop in Glastonbury discouraged customers to wear face masks in the shop. The ads included statements such as “Unmask yourself”, “hoax of Covid-19”, and suggested that masks were dangerous to people’s health. The ASA noted that at the time people in England were required by law to wear face coverings in a number of public settings, including shops, unless they were exempt. It concluded the ads incited people to break the law and were misleading, irresponsible and harmful. (Geraint Christopher, 02 December 2020).
Similarly in 2023, the ASA investigated an ad depicting cannabis plants being grown indoors under artificial lighting. It considered the ad suggested the gardening equipment and lighting could be used in the cultivation and production of cannabis, which was illegal in the UK. The ASA therefore concluded the ad irresponsibly condoned the illegal cultivation of the plants. (SpiderfarmerLED, 15 November 2023).
The ASA has also ruled against ads that encourage anti-social behaviour on the grounds of social responsibility. In 2019, the ASA ruled an ad, published after a milkshake had been thrown at a politician, was irresponsible because it condoned anti-social behaviour and encouraged further instances. The ad referred to a competitor’s decision to suspend sales of milkshakes during a nearby political rally, and stated "Dear people of Scotland. We're selling milkshakes all weekend. Have fun. Love BK. #justsaying". The ASA acknowledged the Tweet’s humorous tone, but considered the ad would be understood to suggest that Burger King milkshakes could be used by people to “milkshake” Nigel Farage, an offence that could potentially result in criminal charges. (BKUK Group Ltd, 2 October 2019).
More recently in 2024, the ASA also upheld complaints against an ad for a water bottle company which depicted a man publicly urinating in a park, as it considered it would be seen as anti-social behaviour, as well as being potentially unlawful in the UK. It concluded the ad trivialised the scenario, which implied his genitalia was exposed and potentially visible to others, and condoned the anti-social behaviour. (Air up GmbH, 03 July 2024).
Ads do not necessarily have to link a specific product with illegal behaviour to breach the Code. In 2012 the ASA investigated a Greenpeace ad that promoted the painting of power station chimneys as a form of protest and requested donations to support the cause. The ASA considered that the ad encouraged and condoned defacing property, which would in some circumstances be illegal. It concluded that the ad was harmful and irresponsible and upheld the complaints (Greenpeace, 16 May 2012).
The Code also requires that marketing communications must not link alcohol with driving (Rule 18.12), or encourage consumers to drink and drive (Rule 4.6), an offence in the UK if a driver is over the alcohol blood concentration limit. An ad featuring an image of miniature bottles of vodka placed in frozen drinks, sat on the centre console of a car and taken from the perspective of the driver’s seat, was found to breach the Code due to linking alcohol with driving. (Au Vodka Ltd, 26 July 2023).
Products with illegal uses
If a product has both a legal and an illegal use, it may be advertised, but in those circumstances it should not encourage any illegal usage and the ASA will consider the tone and message of the ad.
The ASA has upheld complaints against several ads for electric scooters, taking into account government guidance at the time stating that they could only be used on private land, and were otherwise illegal on public roads or pavements (with very limited exceptions for rental scooters). The ads were found to misleadingly imply that e-scooters, sold for private use, could be used legally in public spaces and roads when that was not the case, and were therefore deemed socially irresponsible (Currys Group Ltd, 30 March 2022). The ASA found in particular the messaging in one such ad was irresponsible because it suggesting the law around e-scooters was lenient and could be ignored, and that a change in law was imminent (E-Scooters 4 Less (unconfirmed), 17 January 2024).
Using the same principle, the ASA has upheld complaints about ads for electric bikes that were promoted in a way that encouraged illegal usage and omitted key information about their legality. In two investigations, the ASA considered The Department for Transport’s Guidance at the time, which required that electrically assisted pedal cycles (EAPCs) not be treated as motor vehicles. The ASA understood the advertised e-bikes in both cases could exceed the maximum motor power and speed for EAPC’s, and therefore were likely not compliant EAPCs, so would be treated as motor vehicles. As such, the ASA considered it was likely they were subject to road traffic regulations, including that their use on public roads was illegal unless they were licensed, registered, taxed and insured.
Despite the increasing prevalence of electric bikes, the ASA considered consumers were unlikely to be aware that if an electric bike did not comply with the requirements of the DfT’s EAPC guidance, then it would be classified as a motor vehicle. The ASA considered that information about the product’s legal classification was material information consumers needed to make an informed decision about the product. As this information was omitted from the ads, they were found to be misleading. The ASA also considered the ads, which showed the bikes being ridden on what appeared to be public roads, were socially irresponsible for depicting the illegal use of unlicensed e-bikes on public roads and spaces, and without the use of a motorcycle safety helmet (G-force, 27 September 2023, and Cyrusher Outdoors Sporting Ltd, 22 February 2023).
Misleading claims about legality
Marketers should be careful to avoid misleadingly implying that products or practices are illegal in advertising. The ASA upheld a complaint that a marketing communication misleadingly suggested that Covid-19 vaccinations were illegal, and that police forces were undertaking a criminal investigation into the administration of the vaccinations in the UK. The ads were found to give the misleading impression that the vaccine was illegal, when that was not the case. (Stacey Bradley, 25 May 2022).
The ASA also investigated claims in an ad for a building consultant suggesting that a competitor damp specialist company was fraudulent. It featured claims such as ‘Fraud warning’ and ‘scam’. The ASA considered the ad attacked the competitor’s business practices and created the impression that the company and its staff were dishonest and took part in illegal behaviour. It therefore concluded the ad breached the Code by denigrating another marketer. (Campylite Investments Ltd, 31 March 2021).
The Copy Advice team does not give legal advice and marketers concerned about legality should seek specialist legal advice.
See also: ‘Anti-social behaviour’, ‘Social Responsibility’, ‘Weapons’, ‘Drugs’, ‘Alcohol: Unwise locations and activities’, ‘Copyright’, and ‘Female genital mutilation’.