Black Friday and Cyber Monday (this year, 29 November and 2 December) have become two of the biggest shopping events of the year, with discounts sometimes lasting far beyond the day or two their names suggest. When participating in these events, and any other sales, marketers must ensure that their offers comply with advertising standards. This blog provides a guide to adhering to key advertising regulations.
Key advertising rules
The Advertising Standards Authority (ASA) regulates advertising compliance in the UK, and its rules and codes provide the standard for advertising ethics. When designing adverts, you must ensure that you:
- are socially responsible: always have a sense of social responsibility when preparing advertisements. For example, ads for alcohol should not encourage unwise or excessive drinking, and advertisers should be conscious not to exploit people’s insecurities about their bodies or present an unhealthy body image as being desirable.
- avoid misleading content: ensure that your advertisements do not mislead in relation to the product, its availability, or your business.
- comply with special rules relating to children: additional regulations apply when advertising to children.
For more information, see our Q&A on what to include in an advert.
How to avoid misleading advertising
To comply with advertising standards, you must not mislead customers about your product or service through advertisements. While you can use hyperbole to promote or ‘puff up’ your product, it’s essential that you do not exaggerate its capabilities or performance. Clarity is key; do not omit or obscure critical information that consumers need to make informed decisions.
If you’re making claims that might be perceived as facts, you need to have supporting evidence. Presenting subjective opinions as objective truths can lead to misunderstandings, so it’s crucial to make clear when you’re sharing an opinion rather than factual information. For example, you cannot falsely say that something is only available for a very limited time if this is not true.
You must make sure that you do not mislead customers by leaving out or hiding information that the customer needs to know in order to make an informed decision or present such information in a way that is unclear or ambiguous. For example, you should not increase the price of a product temporarily in order to discount it by a more impressive amount. Whether or not you are misleading the customer will depend on the context of the advert and possibly the medium you are using (as this will affect how much time or space you have).
For more information, see our Q&A here.
Advertised savings
You must ensure that claimed savings are not exaggerated. The sale price should not be available for longer than the usual price and the discount should be calculated against the most recent price. To support your claims, you should keep a record of historic pricing.
Advertised discounts such as ‘up to 80% off’ must be used with care. If making such a claim, a significant proportion of the products must be discounted by the stated percentage. The same rule applies to advertising prices from a set price (eg ‘from £5’); a significant proportion of the products should be available at £5.
If you advertise that a promotion applies to ‘everything’, any exclusions must be clearly indicated.
Extending sales
Sales should not be extended beyond their original advertised closing date unless there are unavoidable circumstances beyond the control of the promoter which make it necessary to do so.
If you do extend a sale period, you must communicate the change transparently and clearly.
Terms and conditions
Significant terms and conditions (information likely to affect a consumer’s understanding of the offer) must be made clear in any advertisement. Examples of significant terms and conditions include how to participate, start and closing dates, and any restrictions or limitations on participation (eg age, date or location).
Any limitations of availability must be clearly stated. Simply stating that availability is limited may not suffice: you should be specific about the limitations. If a product becomes unexpectedly unavailable, you must amend or withdraw relevant advertisements accordingly.
For guidance on how to prepare appropriate terms and conditions, see our Q&A on Terms and conditions of sale. You can use our template Terms and conditions to help you prepare suitable terms and conditions for your business.
Failure to comply
If the ASA believes an advert has breached advertising standards, it can order the advert to be withdrawn or amended. Whilst the ASA does not have the power to issue fines, you will have wasted time, money and resources if it rules that your advert must be withdrawn.
Complaints to ASA can result in bad publicity for your business as the complaints, which identify the specific advert and the name of your business, are placed on the ASA website for five years.
Legal action can be brought against you for failing to follow the ASA’s instructions or for persistently breaching advertising standards.
Conclusion
As Black Friday approaches, you must ensure that your advertisements comply with the advertising standards and codes. By adhering to these rules, you can ensure your promotional materials are legally compliant while maintaining trust with your consumers. For an overview, see our Q&A on Advertising, labelling and pricing.
The content in this article is up to date at the date of publishing. The information provided is intended only for information purposes, and is not for the purpose of providing legal advice. Sparqa Legal’s Terms of Use apply.
Becca joined Sparqa Legal as a Legal Editor in 2024 after transferring from FromCounsel. She previously worked as a caseworker at Advocate, the bar’s pro bono charity. Becca regularly writes for Sparqa’s blog, covering topics including employment, health and safety, intellectual property, and company law.