Julika Wahlmann-Smith

Partner

James Jacobi

Partner

In the competitive world of hospitality, direct marketing can be a powerful tool for restaurant owners to engage with customers.  It is crucial to ensure legal compliance when issuing direct marketing materials. Failure to comply may result in fines, warnings, and associated reputational damage.

This article provides practical tips for restaurant and/or café owners, and outlines the key legal requirements that must be complied with when issuing promotional messages directly to customers.

Understanding the Unsolicited Electronic Messages Act 2007

The Unsolicited Electronic Messages Act 2007 (Unsolicited Electronic Messages Act) regulates the sending of commercial electronic messages.  Most messages sent using a telecommunications service to an electronic address are “electronic messages”, but the term most commonly refers to emails and texts.

Consent

Electronic messages are commercial in nature if they market goods, services, and products.  Electronic messages that are commercial in nature can only be sent directly to customers if they have consented to receiving them.

Consent is often obtained through opt-in mechanisms where customers expressly agree to receive marketing communications.  For example, this may be in the form of a box that customers can voluntarily click when making a booking.

In limited circumstances, consent may be inferred, such as when a customer has conspicuously published their electronic address online (without stating they do not want to receive unsolicited electronic messages), and the message is relevant to that customer’s business.

Businesses should keep electronic records of opt-ins, or other records of any written, verbal, or other form of consent.

Unsubscribe Facilities

To send a commercial electronic message, a functional and easy-to-use unsubscribe facility must be present in all messages sent. Unsubscribe facilities must, amongst other things, be free, take effect within 5 working days of use, and be valid for at least 30 days after the message is sent.

Privacy Implications

The Privacy Act 2020 regulates the collection, storage, and use of personal information about an identifiable individual.  When collecting personal information such as names, email addresses, or other personal information, customers must be informed of various details.  For example, customers must be informed that their information is being collected, the purpose of its collection, who will store it, what it will be used for, and that they have the right to access and correct it.

A privacy policy explains your practices regarding customer data collection and protection. Referring to a privacy policy in direct marketing materials that explains your practices regarding data collection and protection can aid in compliance. When customers consent to receiving your marketing materials, it’s the perfect time to refer them to your privacy policy.

Additional Legal Considerations

The content of your direct marketing must also comply with the Fair Trading Act 1986 (FTA), and the Advertising Standards Authority (ASA) codes. For example:

1. the FTA requires that claims made in direct marketing materials are accurate, not misleading, and capable of substantiation; and
2. the ASA codes set out standards for responsible advertising, covering issues such as truthfulness, decency, and social responsibility.  

Practical Tips for Restaurant and Café Owners

To help you comply with these legal requirements, here are some practical tips:

• when collecting personal information, use clear and straightforward language to explain why the information is being collected and how it will be used;

• use opt-in forms on your website or at your restaurant or café to gather customer consent for receiving promotional materials;

• keep up-to-date records of all consents, including any verbal consents;

• provide functional and easy-to-use unsubscribe facilities;

• regularly review your marketing practices to ensure compliance with the Unsolicited Electronic Messages Act and other relevant laws;

• encourage customers to provide feedback on your marketing communications. This can help you refine your approach and ensure it meets their preferences and expectations; and

• ensure that a privacy policy is in place, up-to-date, and clearly outlines necessary details in relation to the collection and use of personal information.

If you have any questions about direct marketing, or want advice tailored to your specific situation, please get in touch with the RA Helpline or Hesketh Henry’s Advertising and Promotions team, or your usual contact at Hesketh Henry.

Disclaimer:  The information contained in this article is current at the date of publishing and is of a general nature.  It should be used as a guide only and not as a substitute for obtaining legal advice.