Wed 20th Sep 2017
How not to end up before the UK Advertising Standards Authority
There are over 200 UK laws and regulations governing promotional communications and advertising and, while consumers increasingly use social media to make direct complaints, a key part of the control of advertising in the UK is the Advertising Standards Authority (the ASA). This is a self-regulated, non-government body paid for largely by the advertising industry, which regulates the content of adverts, sales promotions and direct marketing and has established codes.
As a business, your dealings with the ASA may arise following a complaint filed online, by telephone or in writing, by a customer, competitor or anyone else. The ASA will investigate the objection and will aim to resolve most complaints informally, preferring to work by persuasion and by reaching an agreement. They seek a response from the advertiser, provide advice and may seek agreement that the advert is changed or withdrawn. If they carry out a formal investigation, a ruling is made and it is published on their website.
How many cases does the ASA handle?
Each year, around 29,000 complaints are made in respect of around 16,000 advertisements, leading to around 5,000 adverts being withdrawn or amended.
Adverts in newspapers, brochures, mailings, text, fax, catalogues, posters, cinema adverts, advertorials and so on in UK media are dealt with by the UK Code of Non-Broadcast Advertising and Direct and Promotional Marketing (CAP Code). Radio or television broadcast advertisements are dealt with by the Broadcast Committee of Advertising Practice (BCAP) code. The key is that all marketing communication should be legal, decent, honest and truthful. It must reflect the spirit, not merely the letter of the code and be prepared with a sense of responsibility. It must not bring advertising into disrepute and it must respect the principles of fair competition.
Marketing communications must be obviously identifiable as marketing communications. This is often a factor when dealing with unsolicited direct mail concerning trade mark renewals from organisations, (often with misleading names such as IPA, and .org domains) who send official-looking documentation.
Case Example: 117 complaints were made about the Patent and Trademark Institute’s direct mailings. This is not an official body but had official looking documents and invoices, which were misleading and were condemned by the ASA.
Marketing communications must not materially mislead, or be likely to do so. Obvious exaggerations may be acceptable, provided they do not materially mislead. Marketers must hold documentary evidence to prove any claims that consumers are likely to regard as objective. They cannot describe a product as free if the consumer has to pay anything other than the unavoidable cost of responding and collecting or paying for delivery. They cannot take unfair advantage of the reputation of a competitor’s trade mark.
Case example: A website offered the chance to “Buy a Lord or Lady title… genuine Lordship or Ladyship title with land in England”. It was said to be misleading, in implying they offered ownership of registered land, or genuine titles.
Marketing communications must also not cause harm, or serious, or widespread offence. This might involve issues of race, gender, religion or sexual orientation.
Case example: 36 complaints objected to an advert of Alzheimer's Research UK showing Santa suffering from Alzheimer's disease. However, the ASA declared that the topic had been handled sensitively, with appropriate time-scheduling for the advert.
A major part of the activities of the ASA is not to punish, but to educate and advise marketers and the media as to proposed marketing communications before they are issued. They provide fast, free and confidential information. They also provide training, online information and bespoke advice.
Who controls the ASA?
The ASA’s decisions are subject to independent review which will consider if there was a substantial flaw of process or ruling, or whether additional relevant evidence is available that could not reasonably have been available during the investigation, which justifies the re-examination of the case. The High Court can exceptionally review decisions.
What are the sanctions for breach of the code?
Bad publicity is the key consequence of a ruling against an advertiser. Rulings are published weekly and are accessible long-term on the internet. The ASA can issue alerts to its media contacts warning them to withhold advertising space to certain advertisers.
A ruling can lead to recognition and trading privileges being removed, which could increase business costs. The ASA may also require persistent offenders to have their adverts pre-vetted before they are published in the future. Internet search companies can be asked to remove paid-for search adverts that link to non-compliant online material.
The ASA has a compliance team and they can refer the matter to Trading Standards for further action under their statutory powers. Trading Standards can get undertakings controlling marketing communications. If that does not work, Trading Standards can then get an injunction from the court and if the advertiser is still not in compliance, there may be an order for contempt of court.
In the context of broadcast advertisers, it is the broadcaster that must withdraw, change or reschedule an advertisement. Breach could lead to the matter being referred to the Office of Communications (OFCOM), possible fines and even the withdrawal of a licence to broadcast.
In the meantime, the advertiser will have wasted the cost of producing the advert and lost the revenue it might have generated if a satisfactory advert had been allowed. Over 1,000 complaints were made to the ASA about one shopping channel which lead to OFCOM fining the channel and it ultimately became insolvent.
Despite being a self-regulatory organisation, the ultimate impact of the codes can therefore be very significant. In one typical year, 38 per cent of advertisers who continued to break the rules had their website taken down.
An objection to a complementary therapy website by one complainant as to whether he really provided the health benefits alleged, ultimately led to the owners of Electronic Healing, Stephen and Susan Lee, paying over £9,000 in fines and legal costs as they failed to provide adequate evidence to support claims that were said to be misleading. ASA’s Chief Executive commented that this decision 'Sends out a clear and strong message to advertisers that where they are unwilling to co-operate and stick to the rules, there can be legal consequences'.