Automated Vehicles Act: a spotlight on marketing

The Automated Vehicles Act (the Act) regulates the marketing of self-driving vehicles, prohibiting the use of misleading terminology or communications that could confuse consumers. In this article Ben Gardner explores how the use of terminology that could mislead consumers will be regulated.

The Act has now received Royal Assent and creates a regulatory framework which applies to the deployment and use of automated vehicles on UK roads. At this stage, the Act creates a framework under which further regulations will need to be developed by the Centre for Connected and Autonomous Vehicles (CCAV) to provide the detailed rules and requirements that are needed to facilitate widespread deployment and use.

Creation of new marketing offences 

The rapid advancement of automated vehicle technology has transformed the automotive landscape which has understandably led to some confusion amongst consumers. So-called “hands off, eyes on” features have become popular automotive technologies, but the capability of these features and the role of the driver remain somewhat unclear.

Consumers can often misinterpret these features as full self-driving (particularly when accompanied with confusing terminology and advertising) which leads to clear safety risks. The Law Commissions concluded that warnings and disclaimers would not be sufficient to overcome these risks. This is where the Act steps in.

What you need to know

• Misleading marketing: Organisations must not use misleading terminology (so-called “restricted terms”) in promotional material relating to whether or not a vehicle classifies as self-driving.
• Clarity for consumers: Organisations must provide accurate information about the capabilities and limitations of self-driving vehicles to properly manage consumer expectations and avoid safety risks.
• New marketing offences: Organisations and their officers may commit a criminal offence if they use restricted terms in connection with a vehicle which has not been authorised as self-driving, or if they otherwise misrepresent the capabilities of a vehicle in a way which misleads consumers.

What the Act says

If you will be marketing vehicles and services which could be considered automated, understanding the new requirements and offences that the Act introduces is crucial. Here’s what you need to know:

1. Use of Restricted Terms

The Act grants authority to the Secretary of State to specify certain words, expressions, symbols, or marks that can only be used in connection with a self-driving vehicle that has been authorised for use on UK roads. 

As a result, a road vehicle which has not been authorised as self-driving cannot be marketed using these restricted terms, in a move which is designed to prevent misleading marketing practices and promote accurate representations.

The Law Commission has previously proposed to include the terms ‘self-drive’, ‘self-driving’, ‘drive itself’, ‘driverless’ and ‘automated vehicle’ within this list of restricted terms but the eventual list may be different and expanded from time to time. 

2. Use of communications likely to confuse

The Act also makes it an offence to promote a road vehicle in a way that is likely to confuse consumers as to the vehicle’s autonomous capability. For example, if it is not actually capable of safe and legal autonomous driving as per the standards set out in the Act.

This supplements the prohibition on using restricted terms by introducing a catch-all restriction on deploying any other language or practice that could mislead the consumer as to the capability of the vehicle.  Again, with a view to ensuring transparency and safety.

3. Marketing offences

The Act outlines specific offences related to the use of restricted terms and communications likely to confuse a consumer as to the vehicle’s autonomous capability:

• Using restricted terms for road vehicles: An organisation commits an offence if it uses (or causes or permits the use of) a restricted term in connection with the promotion or supply of a road vehicle which is not authorised.
• Using restricted terms for vehicle equipment: An organisation commits an offence if it uses (or causes or permits the use of) a restricted term in connection with the promotion or supply of a product intended for use as equipment of a road vehicle which is not authorised.
• Communications likely to confuse: An organisation commits an offence if it makes (or causes or permits to be made) a confusing communication relating to the promotion or supply of a product or service. An example of such a message would include saying a road vehicle that is not authorised is capable of safely and legally travelling autonomously on roads or other public places.

Sanctions may include fines and imprisonment and, notably, a ‘responsible person’ may commit a criminal offence as well as the organisation. The Act defines a responsible person as being, for example, a director, manager, secretary, or a member of a partnership. Certain conditions apply in order for an offence to be committed and a number of defences are also available.

Key takeaways

• Business teams need to be aware that a road vehicle cannot be marketed using certain restricted terms or other language which could create confusion unless that vehicle has been authorised as self-driving.
• If restricted terms or confusing communications are used in contravention of the Act then a criminal offence may be committed, resulting in sanctions for both the organisation and its officers.
• Communication and collaboration between product, marketing and legal teams at an early stage is paramount to avoid having to rename features prior to launch.
• The exact list of restricted terms and further guidance on marketing offences needs developing and regulations will need to be introduced by CCAV to provide more detail. The marketing offences are likely to be some of the first provisions of the Act to be brought into effect, so consultations on the content of these regulations are expected in the near-term. This presents affected organisations with the opportunity to influence the content of future requirements in this area.

More information

Our legal experts have been engaged throughout the inception, development and introduction of the Act. This series of articles explore how it will impact organisations offering goods and services in this space.

We produce a bi-annual legislation tracker, Accelerate, that helps our clients stay ahead of the legal changes affecting the automotive sector. You can subscribe here.