Committees of Advertising Practice publish advice note on Brexit and the CAP and BCAP Codes

The CAP and BCAP Codes include many rules that seek to reflect significant pieces of EU law or UK law that have been made to implement EU law.

The CAP has published a statement summarising 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 now the UK has left the EU, all rules that were in force on the day before exit day continue to remain in force during the implementation period of the Withdrawal Agreement and beyond. Advertisers must therefore 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 the 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 and the European Union (Withdrawal Agreement) Act 2020.

The 2018 Act 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 (s 1);
  • preserving UK law made to implement EU obligations as it stands at the time of exit (s 2);
  • converting direct EU legislation as it stands at the time of exit into UK law (s 3); and
  • creating temporary powers to make secondary legislation to ensure that the UK legal system continues to function correctly outside the EU (s 8).

As a general rule, the 2018 Act 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 2018 Act was also designed to enable UK law to reflect the content of a withdrawal agreement now that the UK has left the EU, subject to the prior enactment of a statute by Parliament approving the final terms of withdrawal, i.e. the 2020 Act.

The key objectives of the 2020 Act, as relevant to the CAP and BCAP 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 and international law;
  • it is designed to work in conjunction with the 2018 Act;
  • 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 2020 Act therefore amends the 2018 Act so that the conversion of EU law into “retained EU law” can take place at the end of the implementation period rather than on exit day; and
  • the 2020 Act defines the end of the implementation period 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 implementation period will continue to apply automatically within the UK, in line with Part 4 of the Withdrawal Agreement.

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; and
  • food, food supplements and associated health or nutrition claims: rules reflect provisions of the Nutrition and Health Claims made on Foods Regulation (1924/2006/EC) on, including that only health claims listed as “authorised” in the EU Register can be used in ads for foods.

CAP and BCAP will update this position if they receive further information on any of the matters included in the statement. To read the statement in full, click here.