Email and the Law

Good advice from CAP?

The Copy Advice Team of the Committee of Advertising Practice (CAP) has recently published a Frequently Asked Questions article on non-broadcast adverts, including email marketing. It focuses mainly, rather predictably, on the legal aspects of copy.

See: New CAP FAQs 

I have a lot of time for the CAP. Their advice is normally quite clear and fairly concise and they are not afraid to address difficult subjects even when there is no definitive answer. All rather impressive. The FAQ article is somewhat different.

The subject headings include:

Does the Advertising Code apply to Facebook, Twitter and other social media?
This is not particularly controversial. Any marketing claims a company tweets or posts is subject to the same rules as advertising in other media. User generated comment is exempt, but if used in your advertising then it needs substantiation. 

My competitors do this, does that mean it’s ok?
Not the most difficult of questions one might feel. 

It’s cleared in the US so that makes it okay, right?
Again, not something that anyone apart from those new to the craft should be confused about. The CAP is for the UK only.

Can I use a testimonial as evidence?
This is the most useful question. Testimonials are persuasive, especially for customers who have not used your service before. However, if you use them, there must be independent evidence, not opinion, to support them should there be a complaint.

Do I need to substantiate claims like ‘excellent service’ or ‘fantastic offers’?
As we’ve mentioned before on these pages, puffery is allowed by the Advertising Standards Authority but there are limits. Subjective claims are allowed, probably because they are difficult to challenge, but suggestions like your product ‘lasts longer than any other at the price’ need to be supported by substantial and independent evidence. 

WizEmail WizBot - The Sheriff - Email Marketing LawThe rest of the article concentrates on the Copy Advice Service that the CAP provides. Whilst the cost for normal procedures is zero, a bargain you might feel, I would suggest care should be exercised.

The CAP has historically been less than adventurous with interpretations. In short, they do not feel inclined to take risks. This is hardly surprising as if they get it wrong then, one would think, the offender has a rather convincing defence. And, one would assume, the ASA would not be amused. 

On top of that, of course, is that should you suggest in any complaint that you did your best, then the fact that you had advice pointing out that the copy did breach the regulations will negate that. Should we not push boundaries and find their extent?

Further, the article points out, at some length, that there is a conditional rapid service, should you wish to avail yourself of it. They reply to most questions within 24 hours but the bespoke service is just four hours. 

What they fail to mention is that there is a cost implication for the quick decision. At the time of writing this is £250 +VAT or £175 +VAT depending on payment method.

So not so much an article as more of an advert for services. The regulations are clear enough for anyone to work out just how much of a risk they are taking. No one wants to create nor receive bland marketing emails.



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