Brand Appeal

What is the CAP Code?

In the UK, the Code of Non-broadcast Advertising and Direct & Promotional Marketing, known the ‘CAP Code‘, is the rule book for non-broadcast media and digital marketing. The CAP Code primarily operates through self-regulation, so that marketers, agencies and influencers are all responsible for their compliance. 

For broadcast media, the BCAP (UK Code of Broadcast Advertising) applies.

The central principle applied by the CAP Code is that marketing communications should be legal, decent, honest and truthful. Complaints can be made to the ASA if an ad appears to be contravening this principle.

How is it enforced?

Enforcement of the CAP Code is primarily carried out by the Advertising Standards Authority (‘ASA‘). Its main enforcement powers are requiring that noncompliant marketing communications are amended or withdrawn as quickly as possible. 

By way of illustration, in a recent ruling On the Beach Ltd was found to have misleadingly advertised a £592 saving on a holiday, claiming it was identical to an easyJet package. However, when the complainant clicked the ‘Reveal this Deal’ button, the On the Beach price was over £900 higher than stated in the advertisement comparison. It also excluded a £100 promotional saving on the easyJet package.

As the ad was described as ‘Deal of the Week’, a consumer would expect that the saving could be achieved during the week the email was received, but this was not the case. Although the ad included small print stating “Prices are dynamic and are subject to change. Price comparison may not take into account any promotional savings”, the ad did not make it clear how quickly consumers needed to act to secure the claimed saving, and the small print was not prominent enough in the ad to counter the overall impression.

Accordingly, the ASA ruled the ad was potentially misleading and breached the CAP Code. The ASA required that the ad not be reproduced in the same form again and that future comparisons be clearer.

 Impact of the Digital Markets, Competition and Consumers Act 2024

Up until last year, traders who used misleading advertisements typically faced limited consequences, usually the worst being publicly “named and shamed” by the ASA or referred to Trading Standards.

However, the introduction of the new Digital Markets, Competition and Consumers Act 2024 (the ‘DMCCA‘) has significantly increased the risk for those found to be engaging in unfair advertising.

In April 2025, the DMCCA brought into force an updated unfair commercial practices regime, updating the one previously contained in the Consumer Protection from Unfair Trading Regulations 2008 (the ‘CPUTR’). The DMCCA prohibits unfair commercial practices, with a ‘commercial practice’ including the promotion of a product and creates criminal offences for those who carry out such practices.

Under the DMCCA, there is a list of 31 practices that are deemed unfair in all circumstances and are banned outright. This list includes, for example, bait and switch advertising, fake or misleading reviews, and false closing down sales. Omitting material information from an invitation to purchase (such as delivery fees, payment arrangements, mandatory fees) is also banned outright, to tackle drip pricing.

Implications for getting an ad legally wrong under the DMCCA

Getting an ad legally wrong could result in a criminal offence. Further, new enforcement powers have been given to the Competition and Markets Authority. If a trader carries out an unfair commercial practice, the CMA may investigate the breach, demand documents are handed over, and issue fines of up to 10% of the trader’s global turnover, all without going to court. These sanctions extend much further than those that can be imposed by the ASA.

Final thoughts 

As digital advertising, and the enforcement of digital advertisements continues to evolve, traders must be cautious about misleading adverts and promotions. With new regulations under the Digital Markets Competition and Consumers Act, the stakes for getting advertising wrong have never been higher, with potentially criminal consequences and significant fines for traders found in breach of the law.