Sainsbury’s face legal action from cat owners who were not told about potential toxic pet food.

It is a mistake many companies have made – American Express being the latest to be fined by the ICO for it – sending a message to your customers that you decide is a service message but is in fact a marketing message and it has been sent to those opted out.

This can cause a company time and money, especially when it is done on a large scale – £90,000 in the case of American Express – but it rarely can cause any real harm.

But what if you turn this around – you don’t send a message to a customer because you have incorrectly decided it is a marketing message!

This has happened to Sainsbury’s who sent out a product recall on some cat food that was potentially toxic, but some customers did not get the message as they had previously opted out of marketing.

This is not a marketing message. This is a service message, providing important information about a product the customer has purchased.

Sainsbury’s may be the subject of legal action from cat owners whose pets have been affected.

Don’t make the same mistake – if you don’t know the difference between a service message and a marketing message, ask for legal help.

We can help you get this right!

New right to repair law came into force 1st July. ?

You hear this all the time, things don’t last as long as they used to, and certainly, my own experience bears this out.

The added problem is that if they do break, they cannot be repaired by professionals for a reasonable price or by consumers themselves as there are no spare parts available.

As of 1st July, this has changed as an agreement between the UK and the EU agreed 2 years ago came into force.

This so called “legal right of repair” will apply in Great Britain and will mean that appliances, including TVs, should last longer and spare parts will be available, extending the life of a product by up to 10 years.

In addition, higher energy efficiency requirements for appliances have been estimated to save consumers on average £75 a year on their bills.

This will mean if an appliance fails and consumer law states it should be repaired, spare parts should be available. At the moment, it is too easy for a retailer to just provide a replacement, which wastes new materials and the expense of production.

This will help small professional repairers offer consumers a much-needed service at reasonable rates, ensuring this type of service survives, and a reduction in products ending up in landfill.

Good news for all I would say.

Get in contact for help with complying with your consumer law responsibilities. – 07958 463371

Brewdog: an own goal!

I have been supportive of Brewdog’s advertising in the past: fun and topical, but when you deliberately set out to break the rules, that is a step too far.

Brewdog has been rapped again by the ASA for nutritional and health claims they made in an Instagram ad in respect of their new drink “Clean & Press”.

When challenged by the ASA, Brewdog’s reply was that it was “tongue in cheek” and accepted the ad breached the rules.

They must have known this is in breach of the Codes that every advertiser has to comply with before they went ahead with this campaign.

They are not the first to court publicity by setting out to breach the rules, but this is wrong!

Some of the rules come from legislation but many are part of the self and co-regulatory systems that the ASA oversees.

The danger is that, as the ASA has no enforcement powers of its own, brands see this as a way to get free publicity for their products without any consequences.

If the Code is abused in this way, the government will be pushed to act and legislation will follow and no one wants to see this.

Get in touch for help with your advertising compliance. – 07958 463371

UK data adequacy confirmed.

The European Commission has confirmed that the UK data protection regime offers an adequate level of protection for personal data.

This means if you want to transfer personal data from Europe into the UK, you can do so without the need for extra security measures such as Standard Contractual Clauses or Binding Corporate Rules.

The adequacy status, for the first time, includes a “sunset” clause which means it is time-limited and will need to be re-negotiated in 4 years.

It will only be renewed if the UK maintains an adequate level of protection, so there could be a danger that this will not happen if the UK diverges too far from the EU data protection rules.

Changes to our privacy standards to reap greater economic rewards from data have been suggested by ministers which could jeopardise its renewal.

The decision has been heavily criticised by European lawmakers, regulators, and privacy activists, and it is more than likely that the UK data regime will come under intense scrutiny in the coming months and years.

Get in touch for any help with your data protection activities. – 07958 463371

This is a real bugbear of mine!

There have been some great webinars advertised on LinkedIn recently which look informative and would be well worth attending.

BIG PROBLEM – You have to agree to receive marketing from the organiser and all of their sponsors just to register! ?

All this will do is put off your target audience.

Come on guys – getting your data protection right is not rocket science – it just needs the right expertise and experience.

Get in touch for common sense legal advice on getting this right.

Now that’s a job I should have!

I knew I should have continued with that application to be appointed a District Judge – then it could have been me!

You cannot really call that work, can you?

If so then I’m in – I would need to do some detailed practical research but then I would be raring to go.

A judge had to taste a selection of Nakd bars as part of an appeal by Morrisons against a tax tribunal’s decision to rate the bars as confectionary and therefore subject to VAT. Morrisons also wanted the £1,000,163.39 they had paid in tax repaid.

After a 3 day hearing where the Judge tasted a number of the bars, including lemon drizzle, banana bread, ginger cake, and cherry bakewell, she dismissed the appeal, ruling that the bars were confectionary and not cakes.

“They do not look like typical cakes; their ingredients are not those of typical cakes; they would look out of place on a plate of cakes, and they are not held out for sale as cakes,” the judge said.

They were “held out for sale as cereal bars to be eaten as snacks”.

Morrisons is considering whether to appeal the decision.

If they do I am happy to help!

This is not marketing: we are just telling you about our wonderful services!

It is a mistake many companies have made and it was fortunate that it did not cost them more – £90,000 is peanuts to a company their size.

American Express sent 7.5 million marketing emails to customers, but nearly 4.1 million had opted out!

AMEX argued that these emails were “servicing” in nature, not marketing.

“We feel that Card Members would be at a disadvantage if they were not aware of these campaigns and promotional periods” they told one complainant.

The ICO disagreed.

The emails contained marketing and advertising aimed at encouraging customers to use their cards to purchase goods and services.

The 9 different types of email sent included an e-newsletter with exclusive events available through the AMEX Concierge Service, some paid for; a “come back” email to customers who had not used their cards for a period of time, and an email encouraging customers to use their card in specific locations abroad, targeted based on the card holders’ travels.

Rules on direct marketing are clear: guidance was issued in 2013, updated in 2016, and a draft code of practice was consulted on in 2020.

Contact me for a legal yet common sense view on your communication content.

Environmentally friendly products and services – are you marketing these legally!

Brands advertise their products and services as ethically sourced, “green” and sustainable, but can these claims be trusted?

There are rules that help to ensure that these claims are true and not misleading.

Consumer protection rules restrict business practices that provide false or misleading information about a product.

In addition, consumer rights legislation provides rules for businesses, such as any description should match the product or service being offered.

If information about sustainability or environmental benefits is misleading or false, the seller may have broken the law.

There is also the UK Code of Non-Broadcast Advertising, (CAP) and the UK Code for Broadcast Advertising (BCAP) which contains general rules on advertising, and specific rules on environmental claims.

These include advertising should not be misleading and any claims made should be substantiated.

Consider the Codes when planning your marketing – it is free to complain about an advert and it only takes one complaint to start an investigation.

It is easy for consumers to cause an advert to become well known for the wrong reasons and adverse publicity for the brand.

Draft adequacy decision published by European Commission

Some good news for a Friday afternoon. The decision we have all been waiting for has been published in draft by the European Commission.

It concludes that the UK has an equivalent level of protection for personal data and there will be no need for additional provisions to safeguard the transfer of personal data from the EU to the UK.

The European Data Protection Board (EDPB) will provide their opinion on the decision and we will need agreement from the Council of Members, composed of representatives of the EU Member States.

Once the decision is adopted, there will remain in force for four years and can be renewed if our standards are adequate.

Even if adopted, the decision could still be challenged, as we saw with first Safe Harbor and then its successor Privacy Shield.

We will have to wait and see.

E-Privacy progress!

It was announced yesterday that the EU Council of Ministers has agreed on a draft text to replace the EU E-Privacy Directive.

The Directive is implemented into UK law by PECR – the Privacy and Electronic Communications Regulations 2003.

In terms of marketing, PECR governs calls, emails, texts, and faxes and has rules for the use of cookies.

It was optimistically intended to update the Directive at the same time as the Data Protection Directive and to bring this into force at the same time as the GDPR in May 2018!

There has been much disagreement over the text since the first draft was introduced in January 2017 by the European Commission.

The agreement of the Council means that negotiations with the European Parliament can begin on a final text.

Whether we will see the end result implemented in UK law is another matter, as the new Regulation will not come into force until 20 days after its publication and will not apply until 2 years later.

Given we have left the EU and in theory no longer have to follow EU law, the Government may decide not to incorporate this into UK law.

It will depend, in my view, on what final text is agreed upon and whether the end result helps or hinders responsible marketing by UK businesses.