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The Control of Misleading Advertisements Regulations 1988

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Explanatory Note

(This note is not part of the Regulations)

These Regulations implement Council Directive No. 84/450/EEC (OJ No. L 250 19.9.1984, p. 17) relating to misleading advertising.

The Director General of Fair Trading is required to consider complaints (other than frivolous Or vexatious ones) about misleading advertisements. The Director is not required to consider complaints about commercial radio or television advertisements or cable advertisements. Before he considers a complaint the Director may require the person making the complaint to satisfy him that appropriate means of dealing with the complaint have been tried and that, despite being given a reasonable opportunity to do so, those means have not dealt with the complaint adequately. (Such means might include complaining to a local authority trading standards department or to a self-regulatory body, such as the Advertising Standards Authority. It is, however, for the Director to determine what means he considers appropriate in any particular case.) In dealing with complaints the Director is required to bear in mind all the interests involved, including, in particular, the public interest, and the desirability of encouraging the control, by self-regulatory bodies, of advertisements (regulation 4).

The Director is given power to bring proceedings for an injunction to prevent the publication or continued publication of an advertisement which he considers misleading. He is required to give reasons for his decision to bring or not to bring proceedings for an injunction (regulation 5).

The IBA is placed under a similar duty to consider complaints about commercial radio and television advertisements. It is required to give reasons for its decisions and in exercising its powers under the Regulations, to have regard to all the interests involved and, in particular, the public interest (regulation 8).

The IBA may refuse to broadcast an advertisement which it thinks is misleading. It may also require, having regard to the interests affected by the requirement, substantiation of factual claims in advertisements. Failing substantiation of them, it may treat such claims as inaccurate (regulation 9).

The Cable Authority is placed under a similar duty to consider complaints about misleading cable advertisements, but is not to consider complaints about advertisements included in IBA or BBC broadcasts where, after being received, those broadcasts are immediately retransmitted by cable. The Authority is required, in dealing with complaints, to bear in mind the same matters as the IBA (regulation 10).

The Cable Authority is given power to give directions (including a direction not to transmit it) in relation to an advertisement which it thinks is misleading and is required to give reasons for its decisions to give or not to give directions. The Authority is given the same powers as the IBA in relation to the substantiation of factual claims in advertisements and to treating such claims as inaccurate (regulation 11).

The Court is given power to grant applications by the Director General of Fair Trading for injunctions preventing the publication of advertisements it considers misleading, including advertisements likely to convey the same impression as the advertisement to which the application relates. Where the application is for an interlocutory injunction, the Court need not be satisfied that the advertisement is misleading. The Court has the same powers to require substantiation of factual claims and to treat them as inaccurate as are conferred on the IBA and the Cable Authority. No proof of loss or damage to anyone or of intent on the part of the person responsible for publishing an advertisement is needed before the Court may grant an injunction (regulation 6).

Provision is made for the obtaining and disclosure of information by the Director General of Fair Trading and others and for the dissemination of information and advice by the Director (regulation 7).

Various expressions used in the Regulations, including “advertisement” and “misleading advertisement”, are defined (regulation 2).

The Regulations do not apply to certain investment advertisements and advertisements in respect of investment business as defined in the Financial Services Act 1986 nor to advertisements which relate to the official listing of Securities as provided for by Part IV of that Act (regulation 3).

The 1986 Act makes separate provision in relation to those advertisements.

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