The Code Review: a busy summer for CAP and BCAP
16 July 2009
In March this year, CAP and BCAP invited comments from all interested parties on their proposed Advertising Codes (see
CAP Code Review consultation and
BCAP Code Review Consultation). The proposed Codes stemmed from an 18 months consideration of the present rules and regulations that govern TV, radio and non-broadcast ads. Led by an advertising industry steering group, the pre-consultation stage took into account the views of public and private bodies, research and the law. Pre-consultation can only tell you so much, however, and now we must consider the thousands of significant comments that may shape the proposed Codes still further.
Significant comments are difficult to define. In general, they are comments of substance that fall within the scope of the Code Review. Significant comments may include new and relevant information that was not contained in the CAP and BCAP consultation documents. They might be raised by a person or a body (expert or not) of clear significance to a proposal in particular or the proposed Code in general and they might owe their significance to the large number of responses received on the same theme.
CAP and BCAP must document their evaluation of those comments and show if and how they have been reflected in the penultimate draft of the new Codes before they are presented to key external regulatory stakeholders. Because CAP and the ASA comprise the established means for regulating non-broadcast marketing communications that fall under the Consumer Protection from Unfair Trading Regulations 2008 and the Business Protection from Unfair Trading Regulations 2008, the OFT must be content that the CAP Code is not incompatible with those Regulations. BCAP’s evaluation will take account of advice given by the Advertising Advisory Committee, before its penultimate draft Code is considered, in full, by Ofcom who must agree the final broadcast Advertising Code taking into account the requirements of the Communications Act 2003.
Ultimately, those checks and balances help CAP and BCAP to fulfil their stated objective: to create Codes based on the enduring principles that marketing communications should not mislead, harm or offend. Codes that adequately protect children and others whose circumstances put them in need of special protection. Yet Codes that provide for an environment in which responsible advertising can flourish. Before they can be published, CAP and BCAP must present their new Codes to the independent ASA and invite its Council to administer them.
Given the number of external parties involved in the post-consultation stage of the Code Review, it would be foolhardy to promise a publication date at this time. But all things being equal, CAP and BCAP intend to publish their evaluation of significant responses to the Code Review and the new Codes before the end of the year. Clearly, the Codes will be subject to a grace period before they become fully enforceable.
These summer holidays may be a quiet time for some organisations but it promises not to be for CAP and BCAP who must immerse themselves in the thousands of responses that they have received to their Code Review consultations. Interested parties should take great comfort in knowing that CAP and BCAP do not underestimate the importance of ensuring their approach to the evaluation of responses is open-minded, fair and transparent.