Advertising and marketing

Horizon scanning

Consumer law spotlight: CMA's enforcement of the DMCCA

What's happening
The Competition and Markets Authority (CMA) has wide-ranging new enforcement powers under the new Digital Markets, Competition and Consumer Act 2024 (DMCCA) which came into force on 6 April 2025. These new powers include the ability to investigate and decide upon consumer law breaches and to issue fines of up to 10% of global annual turnover.

Background

In March 2025, the CMA published guidance on its direct consumer law enforcement powers under Part 3 of the DMCCA. This follows the draft guidance published last year and sets out the enforcement process, from the power to launch direct investigations to its provisional infringement notices against traders, which may lead to a final infringement notice depending on the representations made by the trader under investigation. The CMA also provides guidance on its use and acceptance of undertakings, settlement and remedies, its power to enforce

monetary penalties (up to 10% of global annual turnover) as well as an insight into their decision-making and handling of cases.

Enforcement priorities

In addition to the guidance, the CMA has recently set out its approach to consumer protection, including establishing its enforcement priorities for the first 12 months under the DMCCA, as well as how the CMA will apply the “4Ps” framework (Pace, Predictability, Proportionality and Process) to the new consumer protection regime. The CMA understands that businesses now face significant consequences of non-compliance and will therefore focus its efforts on the “more egregious practices” in the early enforcement period. These include: (i) aggressive sales practices that prey on the vulnerable; (ii) providing objectively false information to consumers; and (iii) obviously imbalanced and unfair contractual terms.

Further, in relation to the new banned practice regarding fake reviews, for the first three months (ie until 6 July 2025), the CMA will support businesses to comply with the new rules, rather than enforcing punitively. It will also take a “phased approach” to the drip pricing provisions, with enforcement in respect of aspects of drip pricing that have created more uncertainty only beginning after detailed guidance is published in the autumn.

On 6 April 2025, the CMA also updated its consumer protection regime guidance to clarify how its new direct enforcement powers sit alongside the broader enforcement regime - for example, when it will decide to use the new powers or continue to enforce through the courts. The guidance outlines the CMA’s role and powers in terms of consumer protection, its approach to enforcement and its partnerships with other consumer protection bodies.

Regarding penalties for infringements of the consumer protection provisions, the CMA has acknowledged that fines are likely to be lower in the initial period of the new regime, given that the DMCCA does not apply retrospectively to activity that took place prior to 6 April 2025. However, the CMA has confirmed that it may have regard to the conduct of businesses before the DMCCA came into force when determining penalties, such as previous failures to comply with an enforcement action.

What impact has it had?
The CMA’s guidance and its published approach provides a useful road map for enforcement of the DMCCA in the short term. The CMA’s initial focus on high-impact infringements and its transitional approach to newer rules like fake reviews and drip pricing signal both an opportunity for early compliance and a warning to businesses to prioritise their consumer law obligations or face enforcement action.

Conclusion
Businesses should familiarise themselves with the CMA’s enforcement guidance and the approach to ensure compliance with their obligations under the DMCCA. They should also have internal procedures in place to ensure future compliance, such as having appropriate policies in place, providing regular staff training and ensuring "compliance by design" for all aspects of their consumer facing activities (eg user journeys on e-commerce stores).

Hettie Homewood
Senior Associate
+44 7759 524371
hettie.homewood@rpclegal.com

Horizon scanning

Consumer law spotlight: unfair commercial practices under the DMCCA

The consumer protection provisions under the Digital Markets, Competition and Consumers Act 2024 (DMCCA) came into force on 6 April 2025, replacing the previous regime under the Consumer Protection from Unfair Trading Regulations 2008 (CPRs).

Like the CPRs, the DMCCA sets out a number of provisions prohibiting unfair commercial practices, such as misleading consumers (by act or omission) or behaving aggressively towards consumers. The DMCCA distinguishes between two main types of unfair commercial practice:

those which are unfair if they are likely to cause the average consumer to take a transactional decision they would not otherwise have taken (such as providing consumers false or misleading information about a product or service)
those which are always considered to be unfair regardless of their likely impact on average consumers (the so-called “banned list”), such as publishing fake reviews – as listed in Schedule 20 of the DMCCA.

To assist businesses with compliance, on 4 April 2025 the CMA published guidance on unfair commercial practices under the DMCCA. As part of the consultation, the CMA explored the widened scope of key definitions such as “commercial practices” and “transactional decision”, as well as streamlined legal tests for misleading actions and omissions, all of which make it easier for the CMA to pursue businesses for breaches of consumer protection law. The large number of consultation responses on the topic of drip pricing have led to the CMA confirming that it will consult on detailed specific guidance on this over the summer, with a view to final guidance being published in autumn 2025.

Fake consumer reviews

The DMCCA introduces detailed prohibitions relating to reviews not based on genuine experiences or misleading consumer reviews (including concealed incentivised reviews). These may be reviews in text, speech or a star rating. The DMCCA places a positive obligation on businesses to take “reasonable and

proportionate” steps to prevent and remove these types of reviews. In addition to the CMA’s general guidance on unfair commercial practices, it has published separate guidance concerning fake reviews.

The CMA suggests the following steps for businesses to ensure compliance:

the publication and implementation of a clear policy banning fake or misleading reviews, and setting out the business’s approach to incentivised reviews (either not allowing in any circumstances or allowing them but requiring them to be clearly and prominently disclosed)

conducting regular risk assessments of consumers being exposed to fake or misleading reviews on the business’s platform
taking a proactive approach – putting in place systems and processes to mitigate, identify and address the risks. For example, clear rules on who can submit reviews, requiring conditions such as verification of accounts or the fact that the consumer has purchased or used the product or service. Businesses should also try to deter fake reviews by taking strong action in response (ie appropriate sanctions).

Drip pricing

The DMCCA prohibits drip pricing (when a consumer is shown an initial price upfront for a product/service but incurs additional charges later in the transaction process). Businesses must show a headline price which incorporates any “mandatory charges” at the invitation to purchase stage. Mandatory charges are any charges that a consumer must pay to purchase, receive or use the advertised product. If a mandatory charge cannot reasonably be calculated in advance (ie goods sold by unit measures), the consumer must be given information on how the total price will be calculated. This information must be displayed as prominently as the headline price (ie not in small print) or, if this is genuinely not practicable, in as close proximity as possible - “no more than one click away”. In summary, traders must overcome any limitations in time and space resulting from the medium the product is advertised on.

The CMA’s approach to the drip pricing provisions in the draft guidance it consulted on has caused rumbles among businesses. Retailers have pointed out circumstances where, for example, delivery fees cannot genuinely be calculated in advance if they are calculated based on various factors such as minimum

basket spend, membership costs and delivery location (such that it will be difficult for retailers to give all this information at the invitation to purchase stage without overloading customers).

In response, the CMA has subsequently announced that a further consultation will be run in the summer to finalise more detailed guidance on the finer nuances of the drip pricing rules in autumn. Until then, the CMA will only enforce clear and obvious breaches of the drip pricing provisions.

What impact has it had?

The guidance sets out the CMA’s expectations for businesses and practical steps to ensure compliance with unfair commercial practices under the new consumer protection regime. This is particularly important given that the CMA will have direct investigatory and enforcement powers, including the power to issue fines of up 10% of global annual turnover for breach of consumer protection laws.

Conclusion
Now that the DMCCA is in force, businesses should be well underway in their efforts to ensure compliance and have in place policies, procedures and systems for continuing compliance. The CMA’s guidance should be considered carefully by businesses to ensure that their current practices will not be considered “unfair” by the CMA, and changes implemented if required. Whilst many of the prohibited unfair commercial practices under the DMCCA are the same as under the old CPRs regime, the risk landscape is significantly increased now because of the CMA’s direct enforcement powers and its well-publicised intent to clamp down on businesses engaging in practices that harm consumers.

Oliver Bray
Partner
+44 7981 232447
oliver.bray@rpclegal.com

Hettie Homewood
Senior Associate
+44 7759 524371
hettie.homewood@rpclegal.com

Horizon scanning

The uncertainty continues… an update on brand advertising for “less healthy” food and drink products

As part of the last government’s response to concerns around childhood health and obesity in the UK, the Communications Act 2003 was amended in 2022 to include restrictions on ads pertaining to “identifiable” Less Healthy Food and Drink (LHF) products. LHF products are subset of the products categorised as high in fat, sugar or salt (HFSS).

Background

The revised rules, which were due to come into effect from October 2025 (but have recently been delayed so as to come into force three months later, on 6 January 2026), will see in-scope ads prohibited from airing on Ofcom regulated TV services and on-demand services between the hours of 0530 and 2100, and completely banned from paid-for space in online media at any time.

2024 consultation and guidance

CAP and BCAP's first consultation on the proposed implementation of the new rules into the UK advertising codes, offered some early insight into how the Advertising Standards Agency (ASA) would likely enforce the restrictions. Notably, CAP and BCAP determined that “brand advertising”, defined in this context as ads which did not explicitly feature or refer to specific LHF products, would not be subject to restriction. On this reading of the rules, ads depicting ranges of LHF products or using only generic references to or images of LHF products would entirely avoid curtailment, so long as no specific LHF product was identifiable to the viewer.

Interested parties from across the food and drink, advertising and media industries, as well as non-industry actors such as public health groups, questioned the seemingly confused approach adopted by CAP and BCAP in its original guidance.

Much of the contention centred around the meaning of the word “identifiable”, and the extent to which it was conflated with “specific” in the initial consultation. Respondents queried, for example, how an ad for a range of entirely LHF products could not comprise an ad for an identifiable LHF product or products. Attention was also drawn to the fact that the legislation makes no reference to ranges of or generic references to LHF products, and that the guidance should therefore not have distinguished these ads from those depicting “specific” LHF products.

2025 new consultation and the "identifiability test"

On the basis of the responses and following receipt of legal advice, CAP and BCAP published a second consultation, which ran from 18 February to 18 March 2025. The revised guidance incorporated an “identifiability test” for qualifying ads.

This effectively excludes the possibility of a blanket "brand advertising" exclusion from the restrictions, instead applying an objective test. Under this test, ads will be subject to the new restrictions provided that “persons in the United Kingdom (or any part of the United Kingdom) could reasonably be expected to be able to identify the advertisements as being for that [less healthy] product [or products]”. In other words, the fact that an ad used only generic references or ranges of products would no longer be enough to avoid the restriction.

The government steps in…

Shortly thereafter, the government confirmed in a statement in April that: "the government’s view remains that pure brand advertising is not in scope of this policy. This is because the legislation only restricts adverts that could reasonably be considered to be for identifiable less healthy products, and not adverts that could be reasonably understood to be advertising brands".

The statement also said: "For example, brands could promote their non-product attributes, such as corporate social responsibility commitments or customer experience, or advertise the healthier products within their portfolios. We do not expect the perception or association of a corporate brand with less healthy products to automatically bring an advert into scope of the restrictions."

Then, on 22 May 2025, the government confirmed this intention and that it will introduce a new Statutory Instrument to expressly set out the parameters of the exclusions from the restrictions. It is expected that this exclusion will mean that adverts which don’t feature LHF products (even when a brand name and logo are used) will not be caught by the restrictions, but the detail of the clarification is yet to be confirmed. The government also confirmed that the new advertising restrictions will be delayed by three months – with a new coming-into-force date of 6 January 2026. Despite this delay, many of the leading advertisers, online platforms and broadcasters have committed to complying with the restrictions as if they were coming into force on 1 October 2025.

Guy Parker, CEO of the ASA has since written to the chair of the House of Commons Culture, Media and Sports Committee, acknowledging the intentions of the government to legislate on the brand advertising point and confirming that – once there is further clarity - CAP will more swiftly to develop and publish rules and supporting guidance accordingly. But in the meantime, we wait…

What impact has it had?
This shift in approach by CAP and BCAP, followed by the express confirmation of its intentions for brand advertising by the government, shows that sometimes neither the legislature nor the regulator get it right first time around.

Advertisers should be cognisant to the grey area that exists between legislation and implementation and may wish to engage with future relevant consultations to increase the likelihood that the brand advertising exclusion is both properly understood and effectively implemented.

Conclusion

Advertisers with product ranges that include "less healthy food" products should play close attention to the latest developments on this topic. It is hoped that the proposed express exclusion for brand-only advertising from the restrictions will provide much needed clarity.

More generally, advertisers should be alert to the increasing importance of audience perception. This comes with a set of complex challenges and will require ever-more careful consideration of how the words, imagery and overall narrative employed in adverts are likely to be perceived by the viewer, irrespective of intention.

Oliver Bray
Partner
+44 7981 232447
oliver.bray@rpclegal.com

Hettie Homewood
Senior Associate
+44 7759 524371
hettie.homewood@rpclegal.com

Horizon scanning

UK advertising codes updated to reflect new DMCCA

The Committees of Advertising Practice and Broadcasting Advertising Practice (CAP and BCAP) have amended the CAP and BCAP Codes (Codes) to better align these with the Digital Markets, Competition and Consumers Act 2024 (DMCCA) and other earlier legislation. The Advertising Standards Authority (ASA) has indicated how it intends to enforce the new rules in the coming months.

Background
The CAP and BCAP Codes set out the UK’s rules for non-broadcast and broadcast advertising, respectively. These rules are enforced by the ASA as the UK’s regulator for ads. The consumer protection law shake-up under the DMCCA took effect on 6 April 2025 and includes key changes to the laws on marketing, such as stronger rules on misleading ads, prohibiting “drip pricing”, cracking down on fake reviews and introducing greater protections for vulnerable consumers.

Amending the Codes

The amendments to the Codes, brought about by the DMCCA, follow the publication by CAP and BCAP of the outcome of its consultation that closed on 5 February 2025. The changes, which came into force on 7 April 2025, largely mirror the unfair commercial practices provisions in the DMCCA, for example:

amending CAP Code rule 3.20 to reflect the new requirement to include “optional” fees in marketing communications
introducing a new rule 3.44 to reflect the new prohibition on fake reviews.

As part of the publication of the new rules, CAP and BCAP confirmed that they are committed to ensuring that rule amendments are both effective and free from unintended consequences. Therefore, the revised rules will undergo a review after 12 months.

In addition to reflecting the changes being brought in by the DMCCA, the updates to the Codes also include changes seeking to better align the Codes with the wording of earlier pieces of legislation, such as the Business Protection from Misleading Marketing Regulations 2008.

Following the CMA’s recent announcement on how it intends to enforce the DMCCA in the coming months, the ASA has similarly announced that it intends to follow the CMA’s lead in this respect (other than for testimonials and endorsements, where it will continue to apply its existing rules).

What impact has it had?

The DMCCA has introduced the largest shake-up of the consumer protection regime in the UK in decades, and its effects will ripple throughout industry for the foreseeable future. The changes to the Codes highlight the need to align consumer protection legislation with the rules on advertising, and follow CAP and BCAP’s protocol of consulting on significant changes to the Codes.

Advertisers in all industries should pay close attention to the changes to the rules. Whilst these amendments largely mirror the changes introduced by the DMCCA, alignments with other prior legislation have been introduced, such that advertisers should be mindful of the full suite of changes that have come into effect.

Conclusion
Edgy advertising and marketing tactics may bring rewards, but think very, very carefully before deploying them as we enter a whole new era of consumer protection regulation. At the very least:

check your adverts – make sure all claims are accurate and backed-up with substantiating evidence
be upfront about pricing – look to display the full cost, including any extra fees
monitor reviews – only use genuine customer reviews in promotions
stay cautious with health claims – if you’re advertising health benefits, make sure these can be substantiated
consider your audience – avoid ads that could take advantage of vulnerable consumers.

Oliver Bray
Partner
+44 7981 232447
oliver.bray@rpclegal.com

Hettie Homewood
Senior Associate
+44 7759 524371
hettie.homewood@rpclegal.com

Horizon scanning

New UK guidance for “consent or pay” online ads

The UK Information Commissioner's Office (ICO) has published guidance for organisations operating or considering “consent or pay” online advertising models.

“Consent or pay” is a type of online advertising model which gives users a choice to:

consent to personalised advertising
pay to avoid personalised advertising
decide not to use the online product or service.

A key concern is whether and how users can freely give their consent in the context of a “consent or pay” model where users have no realistic choice but to use the service; this can result in user consent being considered not freely given, and therefore invalid, owing to the power imbalance between the user and organisation.

The emergence of these models has attracted scrutiny from data protection regulators across Europe. This includes the UK's ICO, whose latest guidance was published in January 2025. The ICO takes the position that these models can be compliant with UK data protection law, if organisations can demonstrate that users have freely given their consent to receiving personalised advertising, as well as complying with other UK data protection law requirements.

The ICO's guidance follows an Opinion published by the European Data Protection Board (EDPB) in April 2024 which adopted a more restrictive position on "consent or pay". The EDPB considered that in most cases large online platforms operating "consent or pay" models will not comply with the requirements for valid consent under the GDPR, particularly where consumers are presented with a binary choice between consenting to personalised advertising and paying a fee.

The ICO’s guidance sets out four factors that organisations operating “consent or pay” models must consider when assessing whether consent to direct marketing has been freely given when the model is used:

any power imbalance in the relationship between the organisation and the individual whose personal data is being processed. This could arise from a variety of factors including the vulnerability of users, the organisation's position in the market, network effects and switching costs. Where there is a clear power imbalance, individuals may not have a real choice about consenting to personalised advertising. This could potentially mean that consent is not freely given for the purposes of UK data protection law

offering a “pay” option as an alternative to consent does not automatically invalidate consent, although the fee must be set at an appropriate level where users have a choice between consenting to personalised advertising or paying to avoid it. If the fee is too high, users may feel compelled to consent, meaning it would likely not be freely given in practice. The ICO’s guidance suggests that the fee should be set with reference to the organisation's size, market position and the nature of the processing

the ICO’s position is that organisations using “consent or pay” models should offer broadly the same core product or service under either the “consent” option or the “pay” option. This is because failing to provide an equivalent service may lead to users being unfairly penalised. Organisations can offer additional features in either the “consent” or “pay” options, provided that the core product or service is equivalent, and the additional features do not change the nature of that core product or service
organisations must build data protection measures and safeguards into “consent or pay” models at the design stage, known as privacy by design, as processing by these models is likely to be higher risk processing. The first step is completing a DPIA or updating any relevant existing DPIAs, identifying risks and how these are to be mitigated. The need for privacy by design also extends to how the options are presented to users. Namely, choices must be presented clearly to enable users to make an informed decision, the consent requested must be specific and granular, and it must be as easy for users to refuse consent as it is for them to give consent. In practice this amounts to not "nudging" users to select less privacy-friendly options through the use of colours or sizes of buttons.

What impact has it had?

Organisations may need to assess whether such "consent or pay" models are suitable for their online business and whether the revenue benefits of personalised advertising outweigh the cost and feasibility of compliance.

At an EU level, "consent or pay" models have been the subject of high-profile enforcement action, with the European Commission recently deciding that Meta's model was not compliant with the Digital Markets Act (DMA), resulting in a €200m fine.

Conclusion
Organisations considering adopting a “consent or pay” model should review the guidance carefully to avoid breaching data protection law. In particular, they must consider whether the model gives rise to consent from users that is freely given, taking into account the four key factors set out in the guidance. No single factor is decisive, so regular reviews and updates of the organisation’s assessment are essential as services evolve.

From a UK law perspective, if a power imbalance exists, offering alternatives like contextual advertising can help mitigate risks. Fees must be fair, and both “consent” and “pay” options should provide an equivalent service to maintain genuine choice. Embedding privacy by design strengthens compliance, and where appropriate, data protection impact assessments should be carried out.

Hettie Homewood
Senior Associate
+44 7759 524371
hettie.homewood@rpclegal.com

Kiran Dhoot
Associate
+44 7749 045210
preetkiran.dhoot@rpclegal.com