The Committee of Advertising Practice (CAP) and Broadcast Committee of Advertising Practice (BCAP) Codes include many rules which seek to reflect significant pieces of EU law or UK law that has been made to implement EU law.
This statement summarises the key pieces of legislation designed to ensure that the UK has a functioning statute book after it leaves the EU, and their effect on the CAP and BCAP Codes. In summary, CAP and BCAP advise advertisers that when the UK leaves the EU (on 31 January 2020), all rules in force on the day before exit day will continue to remain in force on and after exit day and on and after the implementation period of the Withdrawal Agreement, and that they must comply with all rules in the CAP and BCAP Codes unless CAP and BCAP make a statement that says otherwise. CAP and BCAP will continue to consider any changes that might be necessary to the Codes as they receive further information from Government, and will make any appropriate changes as soon as they are in a position to do so.
The two key pieces of legislation designed to ensure that the UK has a functioning statute book after it leaves the EU are: the European Union (Withdrawal Act) 2018 (the EUWA 2018) and the European Union (Withdrawal Agreement) Act 2020 (the EUWAA 2020).
The EUWA 2018 made provision for the UK’s withdrawal from the EU via the following key provisions:
- ending of the supremacy of EU law in UK law at the time of exit (section 1);
- preserving UK law made to implement EU obligations as it stands at the time of exit (section 2);
- converting direct EU legislation as it stands at the time of exit into UK law (section 3); and
- creating temporary powers to make secondary legislation to ensure that the UK legal system continues to function correctly outside the EU (section 8).
As a general rule, the EUWA 2018 was designed to ensure that the same rules and laws would apply on the day after exit as on the day before; and that changes could be made to these by subsequent legislation. The EUWA was also designed to enable UK law to reflect the content of a withdrawal agreement once the UK leaves the EU, subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal. This statute is the EUWAA 2020.
The key objectives of the EUWAA 2020, as relevant to this statement, can be summarised as follows:
- Its principal purpose is to implement the Withdrawal Agreement (the separation agreement between the UK and the EU) so that it has effect in domestic – as well as international – law.
- It is designed to work in conjunction with the EUWA 2018.
- Under the terms of the Withdrawal Agreement, it will be necessary to ensure that the EU Treaties and other EU law continues to apply in the UK during the implementation period (IP). The EUWAA 2020 therefore amends the EUWA 2018 so that the conversion of EU law into ‘retained EU law’ can take place at the end of the IP rather than on ‘exit day’.
- The EUWAA 2020 defines the end of the IP as ‘IP completion day’ (currently, 31 December 2020, subject to extension provisions). New pieces of directly applicable EU law (for example Regulations) that are introduced during the IP will continue to apply automatically within the UK, in line with Part 4 of the Withdrawal Agreement. Other new EU measures (for example Directives) introduced during this period will need to continue to be implemented domestically to comply with Part 4 of the Withdrawal Agreement.
Examples of EU-derived law reflected in the CAP and BCAP Codes
The following are examples of rules in the CAP and BCAP Codes that derive from EU law:
- Misleading advertising – rules reflect provisions of the Consumer Protection from Unfair Trading Regulations 2008 and Business Protection from Misleading Marketing Regulations 2008, including that ads must not materially mislead or be likely to so do.
- Medicines, medical devices, health-related products and beauty products – rules reflect provisions of the Human Medicines Regulations 2012, including that ‘Prescription-Only’ medicines must not be advertised to the public.
- Food, bard supplements and associated health or nutrition claims – rules reflect provisions of Regulation (EC) No 1924/2006 on Nutrition and Health Claims made on Foods, including that only health claims listed as ‘authorised’ in the EU Register can be used in ads for bards.
Further guidance on these rules, and others, can be found in the AdviceOnline database here.
CAP and BCAP will update this position if they receive further information on any of the matters included in the statement.
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