What does the Automated Vehicles Bill mean for the marketing of AVs?

On 8 November 2023, the House of Lords released the Automated Vehicles Draft Bill (the “Bill”), marking a significant milestone in facilitating the secure and extensive integration of automated vehicles (AVs) across the UK. We provided an overview of the Bill when it was released. Since then, the Bill has progressed through the House of Lords and House of Commons with the Bill’s Report Stage having taken place in the House of Commons on 1 May 2024. 

In this post, we look further into Part 4 of the Bill, which focuses on the imposition of marketing restrictions in an attempt to protect trust in AVs. Along with the Bill, we will also refer throughout to the DfT’s policy scoping notes (the “Policy Document”). 

Offences created by Part 4

• Section 78 – creates an offence where a vehicle is incorrectly described as terms specified by the Secretary of State. The Policy Document explains that these terms will initially include ‘self-drive’, ‘self-driving’, ‘drive itself’, ‘driverless’ and ‘automated vehicle’. DfT are conscious “that the language of automated driving is still developing”, and have indicated that they intend to keep the door open to the introduction of other terms, such as ‘automated driving’ and ‘autonomous vehicle’.
• Sectin 79 – creates a more general offence of producing (or causing the production of) a communication that “would be likely to confuse [road-users] in Great Britain as to whether a [non-AV] is capable of travelling autonomously, safely and legally… in Great Britain”. Note that this offence is only committed where other conditions are also met (such as the communication being issued an advertisement and it being “directed” at road-users in Great Britain). 

Enforcement of Part 4 offence

Section 80 seeks to ensure compliance with the above, by rendering individuals responsible for the production of the offending marketing as having committed the offence (even where they were negligent, rather than specifically consenting to the act). This applies to ‘directors, managers, secretaries or other similar officer’ in a body corporate; and to those ‘taking part in the management’ of partnerships or foreign entities. 

As per the respective sections establishing the offences, the offender(s) will be liable to a maximum sentence of two years’ imprisonment, a fine or both. 

Interaction with existing marketing codes

The key existing rules on marketing in the UK sit largely within the UK Codes of Non-broadcast Advertising (CAP Code) and Broadcasting Advertising (BCAP Code), as produced by the Advertising Standards Authority (ASA). 

Rules of particular relevance from the ASA Codes include:

• Background to Section 3 of both Codes – ASA “will rule on the basis of the likely effect on consumers, not the marketer's intentions”. This aligns with the approach taken by section 78 (which prescribes terms likely to have the effect) and section 79 (which revolves around being “likely to confuse” road-users). 
• Section 3.7 of the CAP Code (Section 3.9 of the BCAP Code) – “must hold documentary evidence to prove claims that the audience is likely to regard as objective and that are capable of objective substantiation”. We consider this a likely useful route to nudge manufacturers into self-assessing any claims of autonomous capability. In time, we anticipate that the ASA or DfT is likely to clarify that the ability of a vehicle to drive ‘autonomously’ (or the like) is “objective and capable of objective substantiation”, as to ensure that Section 3.7/3.9 applies to such advertisements. 
• Section 3.11 of the CAP Code (Section 3.12 of the BCAP Code) – “must not mislead by exaggerating the capability or performance of a product or service”. Naturally, this will apply to any statement that a vehicle is capable of driving autonomously (or the like). 
• Section 19.5 of the CAP Code (Section 20.5 of the BCAP Code) – “Safety claims must not exaggerate the benefit to consumers”. For AV marketing, this means that manufacturers will need to take care if considering advertising their technology to be ‘safer than human driving’. 

Comment 

As with the entire Bill, Part 4 provides prospective AV operators (and non-AV operators!) with useful clarification over the legislative restrictions on advertising the autonomous capabilities of their vehicles. In particular, Part 4 together with the Policy Document lays starts to provide clarifications on the terminology that will be monitored carefully, and in line with the DfT's positioning, we anticipate that this list will be regularly reviewed and updated as the “language of automated driving” evolves. 

As noted above, the ASA Codes provide additional restrictions for manufacturers to consider before publishing advertisements. In time, we anticipate that either the DfT or ASA will officially recognise autonomous driving capabilities as objectively verifiable, to nudge advertisers into confirming that such claims are substantiated by evidence. 

Advertisers will have to take care to ensure marketing is accurate and compliant, particularly as the area develops and terminology, and customer understanding, evolves. Additionally, the extra care needed in advertising vehicles which have (or can have) differing capabilities through different classes, models or optional extras will be heightened where these differences alter the automated driving capability of a vehicle.

This article was written by Callum Duckmanton, Richard Hugo and Lucy Pegler.