Advertising and Trading Measures Guidance

1.1 The Birmingham 2022 Commonwealth Games

The Birmingham 2022 Commonwealth Games (“the Games”) will be the biggest sporting event ever held in Birmingham and the West Midlands, featuring thousands of world-class athletes from 72 nations and territories, with over a million spectators and a global audience estimated at 1.5 billion people.

The Games will be a once in a lifetime opportunity to put the city, the region, and its people on the global stage.

When Birmingham was awarded the right to host the Games, the UK Government, as part of its hosting commitments, introduced measures to manage public investment in the Games.

The Birmingham Commonwealth Games Act 2020 (“the Games Act”) provides a number of temporary, essential measures to support the successful delivery of the Games, in line with commitments made to the Commonwealth Games Federation (“CGF”). Similar legislation was put in place for the London 2012 Olympics and Paralympics and the Glasgow 2014 Commonwealth Games.

The Games Act includes criminal offences for unauthorised advertising and trading in and around specified Games locations and their vicinities at specified times.

Further details of the advertising and trading offences (together with the exceptions that apply) are set out in The Birmingham Commonwealth Games (Advertising and Trading) Regulations 2021 (“the Regulations”).

The restrictions on advertising and trading are an important part of the hosting requirements for the Games.  The measures aim to:

• protect and enhance the Games brand;
• prevent ambush marketing;
• protect the exclusive rights of Games sponsors;
• ensure there is a consistent and celebratory look and feel across all Games locations; and
• ensure spectators can move to and from Games locations easily and safely.

As the organisation responsible for preparing and staging the Games, the Birmingham Organising Committee for the 2022 Commonwealth Games (“the OC”) has offered its sponsors the exclusive opportunity to expose their brand and exploit an association with the Games in exchange for an investment, which in turn helps to reduce the public cost of hosting the Games.

In return, the OC must be able to assure sponsors that appropriate measures are in place to protect their financial contribution to the Games, by ensuring that organisations who are not official sponsors or who have not contributed towards the cost of hosting the Games, cannot exploit the opportunity of the Games to expose their brands to spectators at the events and/or broadcast viewers.

For more information about Games sponsors, see https://www.birmingham2022.com/partnerships/.

3.1. Games locations and vicinities

The OC has worked closely with the UK Government and other interested stakeholders to develop a proportionate approach for the Regulations, which balances the need to protect the rights of commercial sponsors and ensures spectators can access Games locations safely and easily, while minimising disruption on legitimate, existing businesses.

Only advertising and trading activity in, or in the vicinity of, a specified Games location will be subject to the measures.

The Regulations include a number of maps which illustrate the areas affected by the measures and the exact time periods they will be in place.

A list of the Games locations and the maps setting out each specified Games location and its vicinity (showing the areas which will be subject to control) are contained within the Regulations and available online at https://www.legislation.gov.uk/uksi/2021/1198/schedule/2/made.

A full set of printed maps will also be available for inspection by appointment during normal office opening hours at:

Department for Digital, Culture, Media & Sport (DCMS)

100 Parliament St, London, SW1A 2BQ

To schedule an appointment, please contact DCMS at cgcbt@dcms.gov.uk.

Organising Committee – Brand Protection (Trading and Advertising)

One Brindley Place, Birmingham, B1 2JB

To schedule an appointment, please contact the OC at brandprotection@birmingham2022.com.

Examples of the maps are set out in Annex 1.

In order to advertise or trade legally in a specified Games location and its vicinity, while the measures are in place, the activity must either be subject to an exception under the Games Act or the Regulations or otherwise authorised by the OC.

Some advertising and trading activity may not fall within the scope of the definitions set out in the Games Act at all.  This kind of activity will be able to continue as usual.

3.2. What is a specified "games location"?

A Games location is a place in England which:

• is, or is to be, used for a Games event (i.e. an event forming part of the Games (whether or not a sporting event) or any other event arranged by, or on behalf of, the OC); or
• is otherwise used, or to be used, in connection with the Games (whether before, during or after the Games)[1].

This includes but is not limited to the sports competition venues, road event courses (marathon, road race, time trial) and athletes’ villages.

A full list of the specified Games locations and the time periods the measures will apply in relation to those Games locations is set out in Annex 2.

For more information about the Games locations, please contact the OC at brandprotection@birmingham2022.com.

3.3. What does advertising or trading "in, or in the vicinity of, a games location" mean?

For all Games locations (other than the Time Trial Course and Road Race Course, where different rules will apply – see section 3.4 below), a person is to be treated as being in, or in the vicinity of, a Games location when that person is advertising or trading:

• In or on a railway station, where any part of that station is on, above or under the ground in the non-shaded area that is bounded by a dotted green line on a relevant map;
• On any road marked with a blue line on the relevant map (“event road“);
• In any other place within the non-shaded area that is bounded by a dotted green line on a relevant map;
• On any pavement that is outside the non-shaded area, but is next to any part of a road that is within the non-shaded area (including on anything on or above the pavement);
• Where there is no pavement (or where there is less than 2 metres of pavement), on the land or water that is outside the non-shaded area but within 2 metres of any side of a road that is within the non-shaded area (including on anything on or above the land or water);
• On any part of a bridge where that bridge carries an event road (including any parts that are outside the non-shaded area);
• Advertising on the frontage or roof of any building or the frontage of a bridge, where that frontage or roof can be seen from any of the places listed above and any part of that frontage or roof is within 25 metres of that place.

For the avoidance of doubt, any advertising or trading in the airspace above a railway station, event road, pavement, land or water will be caught by the measures.

3.4. What is the treatment of toad events (Time Trial course and Road Race Course)?

For the time trial course and road race course:

• Advertising on the frontage of any building on any pavement or land (that is outside the non-shaded area but is within 2 metres of any part of a road that is within the non-shaded area), will not be captured; and
• Advertising on the frontage or roof of any building or bridge, where that frontage or roof can be seen from any of the places listed in section 3.3 above and any part of that frontage or roof is within 25 metres, will not be captured,

other than in sections of the road event courses that appear in other Games location maps.

3.5. How to read the road event maps (marathon course, time trial course and road race course)

The Marathon Course, Time Trial Course and Road Race Course interact with certain maps for other Games locations.  In those instances, you will need to view the maps for the relevant road event and other Games location together to understand how the measures apply.

For example:

Marathon Course, Birmingham City Centre and Edgbaston

The Marathon Course appears on the Marathon Course 1, 2 and 3 maps.  Parts of the Marathon Course are also incorporated into the non-shaded areas on the Birmingham City Centre and Edgbaston maps.

Where the Marathon Course extends into the non-shaded area in both the Birmingham City Centre and Edgbaston maps, the treatment applicable in those other maps shall apply.  For the avoidance of doubt, the same treatment applies across the Marathon Course, Birmingham City Centre and Edgbaston maps during the time periods that the measures are in place for the Marathon Course.

This means that any advertising that is visible on the frontage or roof of a building or the frontage of a bridge and within 25 metres of a non-shaded area (or pavement which is outside that area but next to any part of a road that is within that area or, if there is no pavement or the pavement is less than 2 metres, the land or water outside the non-shaded area but within 2 metres of any part of a road in that area), will be captured by the advertising measures.

Time Trial Course and West Park

The Time Trial Course appears on the Time Trial Course 1, 2, 3 and 4 maps.  Parts of the Time Trial Course are incorporated into the non-shaded area of the West Park map.

Where this occurs and parts of the Time Trial Course appear on the West Park map, the treatment in the West Park map shall apply to any advertising or trading activity being carried out in those particular sections.

That means that for those sections of the Time Trial Course that are covered by the West Park map, any advertising that is visible on the frontage or roof of a building or the frontage of a bridge and within 25 metres of a non-shaded area (or pavement which is outside that area but next to any part of a road that is within that area or, if there is no pavement or the pavement is less than 2 metres, the land or water outside the non-shaded area but within 2 metres of any part of a road in that area), will be captured by the advertising measures.

Road Race Course and St Nicholas Park

The Road Race Course appears on the Road Race Course 1 and 2 maps.  Parts of the Road Race Course are incorporated into the non-shaded area of the St Nicholas Park map.

Where this occurs and parts of the Road Race Course appear on the St Nicholas Park map, the treatment in the St Nicholas Park map shall apply to any advertising or trading activity being carried out in those particular sections.

That means that for those sections of the Road Race Course that appear in the St Nicholas Park map, any advertising that is visible on the frontage or roof of a building or the frontage of a bridge and within 25 metres of a non-shaded area (or pavement which is outside that area but next to any part of a road that is within that area or, if there is no pavement or the pavement is less than 2 metres, the land or water outside the non-shaded area but within 2 metres of any part of a road in that area), will be captured by the advertising measures.

Road Race Course and Victoria Park

There is a small section of the Road Race Course that is incorporated into the non-shaded area of the Victoria Park map (along Princes Drive).

For this small section and on 6 August only, the treatment in the Victoria Park map shall apply to any advertising or trading activity being carried out in that section.   That means that for that section of the Road Race Course that appears on the Victoria Park map, any advertising that is visible on the frontage or roof of a building or the frontage of a bridge and within 25 metres of a non-shaded area (or pavement which is outside that area but next to any part of a road that is within that area or, if there is no pavement or the pavement is less than 2 metres, the land or water outside the non-shaded area but within 2 metres of any part of a road in that area), will be captured by the advertising measures.

The Road Race event will be held on 7 August and there will be no overlap with Victoria Park on this date (i.e. please only refer to the Road Race Course maps and St Nicholas Park map on 7 August).

Please see the full road event course maps here: https://www.birmingham2022.com/about-us/our-purpose/brand-protection/.

3.6. Specified periods

Controls on trading and advertising activity in, or in the vicinity of, a Games location will apply during specified time periods only.  These times will vary depending on how and when the Games location will be used and are in place for the shortest amount of time possible, while providing the necessary protection during the Games.

Generally speaking, the measures will apply one day before the activity starts and end the same day the activity finishes.  There are a small number of venues where measures will be in place for slightly longer.

Please see Annex 2 for a list of the specified Games locations and the time periods the advertising and trading measures will apply to each location.

Measures will start from the beginning of the day specified (i.e. 00:00) and cease at the end of the day specified (i.e. 23:59).

4.1. What advertising activity is covered by the regulations?

“Games location advertising” is captured by the advertising offence. This is defined in the Games Act as where:

(a) the person does something in, or in the vicinity of, a specified Games location at any time during a specified period, and

(b) the thing is done wholly or partly for the purpose of promoting a product, service or business specifically to members of the public—

(i) who are in, or in the vicinity of, the Games location, or

(ii) who are watching or listening to a broadcast of a Games event.

This could include:

• displaying, projecting or exhibiting any kind of advertisement which includes a logo and/or business name (e.g. billboard, digital screen, projected advertisements, moving or aerial advertisements, flag, banner, balloon and poster advertising, building wraps, large or illuminated signage that requires planning permission, experiential advertising such as sounds, lights);
• distributing or providing any marketing materials for the purposes of promoting a product, service or business (e.g. flyers, leaflets, promotional give-aways and sampling);
• advertisements displayed on vehicles, where the vehicles are being used principally for the display of advertisements;
• carrying or holding an advertisement or something on which an advertisement is displayed;
• displaying an advertisement on an animal;
• wearing a costume that is an advertisement;
• wearing clothing on which an advertisement is displayed or displaying an advertisement on a person’s body (e.g. body paint).

The advertising offence will apply to people who:

• carry out advertising activity;
• arrange for such advertising activity to take place (e.g. business owners and directors);
• permit such advertising activity (e.g. land owners and occupiers).

It is a defence to the advertising offence if a person took all reasonable steps to prevent the advertising from occurring or continuing.

It will not be an offence to:

• carry out advertising activity in a Games location or its vicinity in accordance with an authorisation granted by the OC; or
• to arrange for or permit such advertising to be carried out in accordance with such an authorisation.

Further, the measures will not apply to any advertising activity undertaken by the OC (e.g. any “Look” applied to Games locations by the OC and their vicinities).

There are a number of additional exceptions, which are set out in further detail below.

4.2. What if I already have permission or a licence to advertise?

The advertising offence will apply regardless of any existing permissions, consents or licences to advertise in an area affected by the measures.  That means that only advertising activity that is covered by an exception or authorised by the OC, or otherwise not caught by the restrictions, will be allowed to continue while the measures are in place.

The Authorisation Process (https://www.birmingham2022.com/getset/advertising-trading/authorisation-process/) sets out that existing permissions and licences will be relevant to any application made to the OC for authorisation to advertise.

4.3. What exceptions exist for advertising activity?

The Regulations introduce a number of exceptions to the advertising offence, which are designed to help minimise disruption to existing businesses operating in, or in the vicinity of, a Games location.

An “exception” is a form of advertising activity that will not be caught by the advertising offence.  Any organisation or individual whose advertising falls within the scope of an exception will not need to apply to the OC for authorisation to advertise in a Games location or its vicinity.

4.3.1 Charities

An exception has been made for advertising carried out by a charity that promotes that charity (including a cause, belief or campaign), but does not seek donations or to advertise a service or product unless the service being promoted falls within one of the charitable purposes listed below:

• prevention or relief of poverty;
• advancement of health or the saving of lives;
• advancement of human rights, conflict resolution or reconciliation or the promotion of religious or racial harmony or equality and diversity;
• relief of those in need because of youth, age, ill-health, disability, financial hardship or other disadvantage;
• promotion of the efficiency of the police, fire and rescue services or ambulance services.

If a charity were to promote a product, service (other than the services listed above) or business (other than a charity), then the charity will need authorisation from the OC to advertise in a Games location or its vicinity during the specified times.

For example

Example of advertising activity in a Games location or its vicinity	Likely treatment under the advertising measures
An advertisement by a charity that is raising awareness of its suicide prevention hotline or domestic abuse service	This would benefit from an exception
A representative from a charity is appealing for donations outside of a train station (that is in the vicinity of a Games location)	Unless authorised by the OC, this kind of advertising would be prohibited
A university promotes its educational courses

Please note: the examples provided above are not exhaustive.  Please refer to the Games Act and Regulations to confirm whether your proposed activity falls within the scope of the exceptions.

4.3.2 Town and Country Planning (Control of Advertisements) (England) Regulations 2007

A number of exceptions in the Regulations are based on the Town and Country Planning (Control of Advertisements) (England) Regulations 2007 (“TCPRs“).  Any conditions or limitations that apply in relation to the display of adverts under the relevant classes of exceptions in the TCPRs (e.g. relating to their size or placement) will continue to apply.  To ensure there are appropriate protections in place, a modified approach has been taken for some of the exceptions in the TCPRs (where additional conditions and limitations may apply, as set out in the Regulations).

Please note that authorisation from the OC is likely to be needed where planning permission has been sought for the display of such advertisements (e.g. due to the size of the advertisement).  Please see the Authorisation Process (https://www.birmingham2022.com/getset/advertising-trading/authorisation-process/)

Please see Annex 3 for a list of the TCPR exceptions.  Please also see the Government’s guidance on outdoor advertisements and signs: https://www.gov.uk/government/publications/outdoor-advertisements-and-signs-a-guide-for-advertisers.

Advertising indoors & on enclosed land

An exception is granted for advertisements that are displayed inside buildings and on enclosed land.

Enclosed land is defined in the TCPRs as including:

• any railway station (and its yards) or bus station, together with its forecourt, whether enclosed or not; but does not include any public park, public garden or other land held for the use or enjoyment of the public, or (except as specified above) any enclosed railway land normally used for the carriage of passengers or goods by rail;
• any sports stadium; and
• any shopping mall or covered shopping arcade other than an historic shopping arcade.

However, in accordance with the Regulations, this exception does not apply to advertisements displayed in railway stations and bus stations (and their forecourts), on or in sports stadiums and/or on or in parts of buildings where a sporting event forming part of the Games is taking place, is to take place or has taken place other than “exempt business advertisements”.

In brief, this exception will only apply to “exempt business advertisements” in those spaces.

Exempt business advertisements

An “exempt business advertisement” is an advertisement displayed on business premises within a building (or a forecourt associated with such premises) that refers only to:

• the business carried on;
• the goods or services provided; or
• the name or qualifications of the person carrying on the business or providing the goods or services,

on those premises.

This means that advertising such as standard shop signs typically displayed by businesses and other “business as usual” advertising on commercial premises inside railway or bus stations and inside Games venues will be permitted.  As a reminder, this will not permit any advertising that creates an unauthorised association with the Games.

For Example

Example of advertising activity in a Games location or its vicinity	Likely treatment under the advertising measures
A mini-mart promotes a 2-for-1 offer on its product, inside the shop	This would likely benefit from an exception
A venue being used for a Games event has posters displayed for upcoming music events inside its premises	If the posters are advertising a product, business or service, then they will need authorisation from the OC
Billboards on a train platform advertising the latest campaign for a high street clothing brand	This would need authorisation from the OC, unless the clothing brand is a charity
A sushi chain has the name of its business on a sign above its store in a train station	This would benefit from an exception
Stonework lettering for a stationery shop is incorporated into a building after 21 November 2021 (i.e. the date the Regulations come into effect)	This would need authorisation from the OC
A bakery places an A-frame on the pavement outside of its shop (i.e. public land) advertising its iced buns	This would need authorisation from the OC
A vehicle is wrapped with a brand’s advertising and is driven in the vicinity of a Games location with the principal intention of advertising that brand (e.g. as part of an ambush marketing campaign)	This would need authorisation from the OC
A vehicle is towing a mobile billboard through the vicinity of a Games location	This would need authorisation from the OC
A local authority promotes an upcoming community fair, which is advertised as being sponsored by a commercial brand / business	This would need authorisation from the OC
A local authority promotes an upcoming local event, which is not sponsored by a commercial brand / business	Provided the advertisement does not promote a product, service or business, then this would not require authorisation from the OC
A travelling circus advertises that it will be running shows locally (in the vicinity of a Games location) during Games time	This would need authorisation from the OC
A public transport operator provides its bus route timetable at bus stops	This does not require authorisation from the OC
A car garage advertises its services on a balloon outside of its premises	This would need authorisation from the OC
The hoardings used to screen a building or construction site are branded with the construction firm’s logo and business name	This would need authorisation from the OC, unless it already benefits from one of the exceptions (i.e. Class 3C, Schedule 3, TCPRs)

Please note: the examples provided above are not exhaustive.  Please refer to the Games Act and Regulations to confirm whether your proposed activity falls within the scope of the exceptions.

4.3.3 Newspapers and periodicals

The Regulations include an exception for selling, distributing or providing current newspapers or periodicals, provided that this is not done:

• in a manner that causes undue interference or inconvenience to people using a street (e.g. any booth or stand from which the newspaper or periodical is sold should not cause undue interference or inconvenience);
• where the version of the newspaper or periodical sold, distributed or provided has been created principally for sale or distribution to people who are in the Games location or its vicinity (e.g. as part of an ambush marketing campaign);
• where this includes an item or advertising supplement that is principally designed to promote a product, service or business specifically to people who are in the Games location or its vicinity (e.g. a tote bag).

For Example

Example of advertising activity in a Games location or its vicinity	Likely treatment under the advertising measures
Newspapers and periodicals are sold or distributed to the general public, as usual	This would likely benefit from an exception, subject to the conditions outlined above
A newspaper seller places their booth or stand in the middle of a designated walking route	If the booth / stand is considered to be causing undue interference or inconvenience to people using a street, this will likely be prohibited
A newspaper comes with a free sample of a commercial brand’s product, which is part of an ambush marketing campaign	This would need authorisation from the OC
A newspaper is sponsored and comes under a branded wrap, which is part of an ambush marketing campaign	This would need authorisation from the OC

 

4.3.4 Advertising on a hand-held device

The restrictions only apply to advertising on a hand-held device that is done with the principal intention of promoting a product, service or business specifically to people who are in, or in the vicinity of, a Games location (e.g. as part of an ambush marketing campaign).

Example of advertising activity in a Games location or its vicinity	Likely treatment under the advertising measures
A person stands in a train station holding a tablet displaying a commercial brand’s product or service, with the principal intention of targeting people attending the Games	This would likely be prohibited and would need authorisation from the OC
A person is targeted with an advert on social media, principally because they are in, or in the vicinity of, a Games location as part of an ambush marketing campaign	This would likely be prohibited and need authorisation from the OC
A person is targeted with an advert on social media while they are in, or in the vicinity of, a Games location, because they meet a certain target audience (e.g. people between the ages of 18 – 45)	This would likely benefit from an exception

Please note: the examples provided above are not exhaustive.  Please refer to the Games Act and Regulations to confirm whether your proposed activity falls within the scope of the exceptions.

4.3.5 Providers of online services

The Regulations introduce an exception to limit the liability of information society services from the advertising offence, where they are mere conduits, providers of caching services and hosts.

4.4. Do all advertisers need authorisation from the oc?

Yes, unless one of the exceptions applies or the advertising activity is not within scope of the advertising offence, anyone who wishes to advertise in a Games location or its vicinity during the specified periods (see Annex 2) must apply for authorisation from the OC in advance and should take into account the OC’s criteria for authorisation (please see the Authorisation Process https://www.birmingham2022.com/getset/advertising-trading/authorisation-process/).

It is important to note that the measures do not replace the legal requirements typically imposed on advertisers.  Even if an exception applies or authorisation has been granted, it is the advertiser’s responsibility to ensure that they hold all and any other authority or permission required for the advertising activity and that any advert displayed complies with all applicable laws and standards.

Advertisers should also take care to ensure their advertising does not create an unauthorised association with the Games and does not otherwise breach any applicable laws (e.g. trade mark infringement).

4.5. If authorisation is received, can anything at all be advertised?

No.  As part of the Authorisation Process, applicants will be required to submit details of where, when and how they propose to advertise, and in some cases the content of the proposed advertising.

The OC reserves the right to attach conditions to any authorisation.  Failure to comply with these conditions will mean that authorisation can be revoked.  If authorised, parties will only be permitted to advertise in accordance with any conditions applied to the authorisation.

Please see the Authorisation Process (https://www.birmingham2022.com/getset/advertising-trading/authorisation-process/).

4.6. What happens if advertising activity isn’t excepted and hasn’t been authorised?

Any advertising activity that falls within scope of the advertising offence, is not subject to an exception and has not been authorised by the OC will not be permitted in a Games location or its vicinity during the time periods that the measures are in place.  If it does take place, then this will be an offence and it may be dealt with by enforcement officers, as described in section 7.

4.7. Other examples

Example of advertising activity in a Games location or its vicinity	Likely treatment under the advertising measures
A person hands out promotional coupons or leaflets for a local takeaway restaurant or fast-food establishment	This would need authorisation from the OC
A person hands out materials about an environmental campaign or political cause	This would be permitted unless promoting a product, service or business (other than a charity)
An advertisement for a gambling company hangs from a bridge which is within 25 metres of the non-shaded area on a relevant map and it can be seen from that area	This would only be permitted if authorisation is granted by the OC
Posters are attached to a Games venue’s spectator access gates with cable ties	If the poster promotes a product, service or business, this would need authorisation from the OC
A corner shop has a promotional “buy one, get one free” poster inside for a product it sells	This would benefit from an exception
A telephone kiosk (provided for telecommunications purposes) has third party branding on it	This would likely be prohibited and would need authorisation from the OC if it promotes a product, service or business (other than a charity)
A petrol station has A-frames outside its entry	If the A-frames are on the forecourt[8] of the petrol station (e.g. the area at a petrol filling station where pumps are situated), then they are likely to benefit from an exception
A group of individuals remove their outer clothing to reveal advertising logos and slogans of a commercial business, for the purpose of an ambush marketing campaign	This would be prohibited
A plumbers’ van is parked in a residential driveway or on the road, while providing business services as usual	This would benefit from an exception
A brand launches a social media campaign across its channels and targets people with location specific advertisements	If this activity is done wholly, or with the principal intention of promoting the business (or its products or services) to members of the public who are in, or in the vicinity of, a Games location (e.g. as part of an ambush marketing campaign), then this would need authorisation from the OC
Landing pages for free wi-fi include “business as usual” advertising for commercial brands and are not targeting users in and around Games locations	This would likely benefit from an exception

Please note: the examples provided above are not exhaustive.  Please refer to the Games Act and Regulations to confirm whether your proposed activity falls within the scope of the exceptions.

5.1. What trading activity is covered by the measures?

The measures apply to trading activity which takes place in a relevant public place in, or in the vicinity of, a Games location.  This includes trading activity on a highway, car parks and any private and public land to which the public has access.

The trading offence does not apply to trading inside a building, except where the building is designed or generally used as a car park.

The trading activities that fall within the scope of the offence (unless authorised by the OC) are:

• selling an item (or offering or exposing an item for sale) – e.g. trading from a pitch or temporary structure or mobile trading;
• providing a service (or offering to provide a service for gain or reward) – e.g. providing tables and chairs etc on public land adjacent to cafés and restaurants (whether or not the trader is the recipient of the gain or reward);
• appealing to members of the public to give money or other property (or both) for charitable or other purposes;
• providing public entertainment for gain or reward – e.g. busking.

It is not necessary for both of the following conditions to be met:

1. that the making of an offer, or the exposure of an item for sale, occurs in a relevant public place in or in the vicinity of a specified Games location;
2. that any person to whom the offer is made or item exposed is in a relevant public place in or in the vicinity of a specified Games location when the offer is made or item exposed.

This means that both parties do not have to be in a relevant public place in or in the vicinity of a specified Games location at the time an offer is made or item exposed for sale (e.g. an ice cream van parked just outside the non-shaded area on a relevant map is clearly visible from and looking to sell its products to people in that area).

The trading offence will apply to anyone who:

• carries out the trading activity;
• arranges for such trading to be carried out (e.g. business owners and directors); or
• permits it to be carried out (e.g. land owners and occupiers).

It will be a defence to the trading offence if a person took all reasonable steps to prevent the trading from occurring or continuing.

It will not be an offence to:

• carry out trading activity in a Games location or its vicinity in accordance with an authorisation granted by the OC; or
• to arrange for or permit such trading to be carried out in accordance with such an authorisation.

There are a number of additional exceptions, which are set out in further detail below.

5.2. What exceptions exist for trading?

5.2.1 Trading exceptions

A number of exceptions for trading are set out in the Games Act and Regulations, which aim to help minimise disruption to existing businesses in, or in the vicinity of, Games locations.

Under the Games Act, the trading offence will not apply to the following activity:

• Trading on premises adjoining a highway
  • selling an item, or offering or exposing an item for sale, to a person who is in premises adjoining a highway (e.g. a door-to-door salesperson);
  • providing, or offering to provide, a service to such a person (e.g. delivering a parcel);
  • providing a service that consists of doing something in relation to premises adjoining a highway (e.g. a window cleaner);
  • appealing for money or other property from a person who is in premises adjoining a highway (e.g. a charity fundraiser)
• Providing public facilities
  • providing a public lavatory
  • providing a permanent public call box;
  • providing an automated teller machine
• Motor vehicles
  • providing motor vehicle parking services in a building, or on other land, designed or generally used for the parking of motor vehicles;
  • providing motor vehicle cleaning services on private land generally used for the provision of those services;
  • selling a motor vehicle on private land generally used for the sale of motor vehicles;
  • providing motor vehicle breakdown or recovery services
• Trading by the OC          
  • Any trading activity undertaken by the OC will not be caught by the trading offence

The Regulations also provide the following exceptions:

• trading in a specified Games location, except where that activity is done in a relevant public place in a specified Games location (e.g. there is an exception for trading inside a Games venue, but not for trading activity outside of the venue);
• the provision of public transport services (e.g. taxis, public hire vehicles and cycle hire but not pedicabs or water taxi services);
• trading as a guided tour operator, but excluding tours conducted on transport (e.g. segway tours);
• selling, distributing or providing current newspapers or periodicals, provided this is not done in a way that causes undue interference or inconvenience to people using a street (and not where this includes an item or advertising supplement which is part of an ambush marketing campaign);
• offering or exposing items for sale from inside a building to a person who is outside the building, provided that offering of or exposing of the item for sale forms part of the usual business of the premises (for example, as part of a shop window display);
• providing a charge point for electric vehicles;
• providing outdoor exercise classes;
• providing a parcel delivery locker;
• trading on a hand-held device;
• trading on private land adjacent to exempt retail premises (including a shop, café, restaurant, bar, or premises otherwise used for the supply of meals, refreshments or alcohol, a petrol filling station, car showroom or car garage), provided that trading activity:
  • forms part of the usual business of the ratepayer (e.g. owner / occupier);
  • takes place during usual opening hours; and
  • does not cause undue interference or inconvenience to persons using a street;
• offering or exposing an item for sale adjacent to retail premises (see above), provided that activity:
  • forms part of the usual business of the ratepayer (e.g. owner / occupier);
  • takes place during the period for which the premises are open to the public for business; and
  • does not cause undue interference or inconvenience to persons using a street;
• providing “business as usual” services at a burial ground or cemetery;
• “business as usual” trading at a leisure centre or outdoor sports facility.

For Example

Example of trading activity in a Games location or its vicinity	Likely treatment under the trading measures
A van selling ice cream	This would need authorisation from the OC
A drive-through restaurant or cafe in the vicinity of a Games location continues to operate as usual	This would benefit from an exception, if the activity takes place on private land
A pop up trader offers or exposes flags, hats and other products for sale to people along a designated walking route	This would need authorisation from the OC
A tram operator continues to provide public transport services	This would benefit from an exception
Taxis and public hire vehicle providers continue to operate	This would benefit from an exception
A water taxi or pedicab operator continues to trade	This would need authorisation from the OC
A walking tour operator continues to trade	This would benefit from an exception
Newspapers and periodicals are sold to the general public, as usual	This would likely benefit from an exception – subject to certain conditions, including it is not done in a way that causes undue interference or inconvenience to people using a street or includes an item or advertising supplement which is part of an ambush marketing campaign
An organisation provides a charge point for electric vehicles	This would benefit from an exception
A gym or personal trainer provides an outdoor exercise class	This would benefit from an exception
A café, restaurant, bar, or other premises has outdoor seating used for the supply of meals, refreshments or alcohol to the public, which is part of its usual business	This would likely benefit from an exception, provided this activity does not take place on public land
A food truck sets up on a pub’s outdoor terrace (which is private land)	This may benefit from an exception, if this forms part of the pub’s usual business
A cafe places tables and chairs on public land	This would need authorisation from the OC
A grocery store displays some flowers, fruit and vegetables outside of its store (in a way that does not cause inconvenience or interference to people using the street)	This would benefit from an exception if the items are displayed as part of the usual business of the store
A grocery delivery service continues to deliver to households	This would benefit from an exception
A car wash business continues to operate as usual	This would benefit from an exception
A tennis club continues to make its tennis court available for hire	This would benefit from an exception
A trader sells their products in a car park (which is not part of the usual business of the car park)	This would need authorisation from the OC
A stall trader sells sandwiches in the vicinity of the Road Race Course	This would need authorisation from the OC
A busker plays the violin outside of a train station	This would need authorisation from the OC
A home owner offers car parking services from their private driveway (which is not generally used for such services)	This would need authorisation from the OC

 Please note: the examples provided above are not exhaustive.  Please refer to the Games Act and Regulations to confirm whether your proposed activity falls within the scope of the exceptions.

5.2.2 Providers of online services

The Regulations introduce an exception to limit the liability of information society services from the trading offence, where they are mere conduits, providers of caching services and hosts.

5.3. Do I need any other licences or permissions to trade?

The measures do not replace the legal requirements that apply to all traders at all other times.  Even if an exception applies or authorisation has been granted by the OC, it is the trader’s responsibility to ensure that they hold all and any other authority, consent, permission, licence or certificate required for their proposed trading activity.  Businesses are encouraged to contact their local authority for further information about such requirements where necessary.

Please see the Authorisation Process (https://www.birmingham2022.com/getset/advertising-trading/authorisation-process/)

5.4. How do the measures apply to those providing entertainment?

Providing public entertainment for gain or reward is included in the definition of “trading” in the Games Act.  Accordingly, any busking or other forms of musical or theatrical entertainment in exchange for payment or other reward will be caught by the trading offence.  This kind of activity will need to be authorised by the OC.

5.5. Do all traders need authorisation from the OC?

Yes, unless an exception applies, anyone who wishes to carry out, arranges or permits trading in a relevant public place in a Games location or its vicinity during a specified time period  must apply for authorisation from the OC in advance and should take into account the OC’s criteria for authorisation (please see the Authorisation Process https://www.birmingham2022.com/getset/advertising-trading/authorisation-process/).

5.6. If authorisation is received, can traders sell whatever they choose?

No.  Any authorisation granted to trading activity by the OC will be subject to conditions, which may differ from and may be more onerous than other licences or permissions held by a trader.  This may include conditions which are aimed at protecting the Games sponsors, including prohibiting the sale of counterfeit goods or goods that create an unauthorised association with the Games.

Please see the Authorisation Process (https://www.birmingham2022.com/getset/advertising-trading/authorisation-process/).

5.7. What happens if the trading activity isn’t subject to an exception and hasn’t been authorised?

Any trading activity that falls within the scope of the trading offence, but is not subject to an exception and has not been authorised by the OC, must not take place in, or in the vicinity of, a Games location during the time periods that the measures are in place.  If it does take place, then it may be an offence and dealt with by enforcement officers, as described in section 7.

Please note that in determining whether a person is carrying out Games location trading, only one of the following conditions needs to be met —

• that the making of an offer, or the exposure of an item for sale, occurs in a specified Games location or (as the case may be) a relevant public place during a specified time period; or
• that any person to whom the offer is made or item exposed is in a specified Games location or (as the case may be) a relevant public place, during a specified time period, when the offer is made or item exposed.

 

Please see our Authorisation Process.

7.1. Enforcement action

Enforcement against unauthorised advertising and trading is primarily the responsibility of local authority trading standards officers (and other enforcement officers as authorised by a relevant local authority) who will be provided with training on the advertising and trading measures.

A range of powers are available to these enforcement officers to ensure effective enforcement action can be taken.  These include use of the investigatory powers set out in Schedule 5 to the Consumer Rights Act 2015, such as seizing and detaining any goods or documents for the purpose of:

• ending the commission of an offence;
• preventing the commission of an offence; or
• enabling the goods or documents to be used as evidence in proceedings for a relevant offence.

The Games Act provides additional powers to enforcement officers in Schedule 3, including the ability (in certain circumstances) to:

• search and examine anything that appears to be in a person’s possession or control; and
• seize and detain or remove anything that appears to be in a person’s possession or control,

where the enforcement officer reasonably suspects that a person has committed, is committing or is about to commit an offence.

Enforcement officers can also do anything they consider necessary or expedient to conceal (or destroy where the enforcement officer considers that it is not reasonably practical to conceal) unauthorised advertising.

The police may have a role in assisting enforcement from time to time.  The OC’s brand protection team may also assist by monitoring advertisers’ and traders’ compliance with the Games Act and Regulations.

7.2. Compensation for enforcement action

The measures are intended to be a strong deterrent against anyone seeking to ambush the Games.

While enforcement officers will need to act in accordance with established policies and procedures, the aim is for a consistent, coordinated and proportionate approach to enforcement across the host venue local authorities.

As a safeguard, the Games Act provides a person with a right to compensation in the event of property damage arising from unlawful enforcement, or the use of unreasonable force in enforcement action.

Please see the Birmingham Commonwealth Games (Compensation for Enforcement Action) Regulations 2021 for the process by which a claim for compensation can be made, considered and appealed.

If you have any questions relating to the advertising and trading measures, which are not answered in this guidance, please contact the OC at brandprotection@birmingham2022.com.