Advertising Standards Authority (United Kingdom)

Advertising Standards Authority

Abbreviation	ASA
Type	NGO
Purpose	Advertising regulator
Region served	United Kingdom
Chief executive	Guy Parker
Website	www.asa.org.uk

The Advertising Standards Authority (ASA) is the self-regulatory organisation (SRO) of the advertising industry in the United Kingdom. The ASA is a non-statutory organisation and so cannot interpret or enforce legislation. However, its code of advertising practice^[1] broadly reflects legislation in many instances. The ASA is not funded by the British government, but by a levy on the advertising industry.

Its role is to "regulate the content of advertisements, sales promotions and direct marketing in the UK" by investigating "complaints made about ads, sales promotions or direct marketing", and deciding whether such advertising complies with its advertising standards codes.^[2] These codes stipulate that "before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove all claims, whether direct or implied, that are capable of objective substantiation" and that "no marketing communication should mislead, or be likely to mislead, by inaccuracy, ambiguity, exaggeration, omission or otherwise".^[3][4]

Guy Parker has been chief executive of the ASA since June 2009; his salary for this role is £120,000.^[5]

History

In 1961 the Advertising Association established the Committee of Advertising Practice (CAP) to draft the British Code of Advertising Practice (the CAP Code). In 1962 the industry set up the Advertising Standards Authority (so named even though it is not a public authority in the usual sense) to adjudicate on complaints that advertisements had breached the new Code. The ASA operated under an independent chairman who was to have no vested interest within the industry.

Not long after the inception of the ASA the Molony Committee considered but rejected proposals to introduce a system to regulate the advertising industry by statute. The Committee reported that it was satisfied that the industry could be regulated effectively from within by the ASA. A guarded comment within the report, however, warned that the self-regulatory system depended upon the satisfactory working of the ASA and the maintaining of acceptable standards.^[6]

Remit

Print media

Typically, advertisements that fall in paid-for spaces in newspapers (both national and regional) and magazines published in the UK fall within the ASA's remit. This category covers reciprocal arrangements not involving actual payments of money. Advertorials are also within the bodies remit as long as a reciprocal arrangement of some kind is in place and control over the content of the advertorial lies with the advertiser. If the editor of the publication maintains control over the advertorial, however, the piece is likely to be seen as editorial rather than advertising.

Broadcast media

In November 2004, control of the regulation of broadcast advertising, formerly undertaken by state bodies, was handed over to the ASA on a provisional two-year contract. Sponsorship credits are considered to be part of programming content and therefore fall outside the ASA's remit. Claims on shopping channels can generally be considered by the ASA, but complaints about non-delivery of items are unlikely to be taken up by the ASA unless there is evidence that the shopping channel has misled people or that the non-delivery is a widespread problem.

Direct marketing

Direct mailings, circulars, leaflets, unsolicited emails, brochures and catalogues are all typically within the ASA's remit. Items such as timetables and price lists are, however, usually outside its remit. Private correspondence, such as a doctor's letter or a bill, is also outside its remit, though a leaflet included with the private correspondence would be covered if it promotes a new or different product.

Internet

The ASA's remit has since March 2011 covered claims that appear on a company's own website,^[7] as well as covering claims that appear in paid-for spaces on the Internet, including pop up ads, banner ads and sponsored links. The non-geographical nature of the Internet can make it hard to determine whether the ASA's remit applies. Online sales promotions (see below) are within the ASA's remit as long as they appear in "British web space".

Sales promotions

The Institute of Sales Promotion (ISP), working to the same Code as the ASA does, can refer complaints to the ASA when it believes that there has been a breach of the rules on sales promotions rules. There has been no clear definition of what a sales promotion is for the purpose of the Code, but examples include:

• Buy One Get One Free (BOGOF) offers
• 25% extra free offers
• Discounted purchase offers
• Loyalty reward schemes, such as Air Miles
• Scratch cards, lotteries, prize draws.

Not all offers that give the consumer something free with a particular purchase may be considered sales promotion. For example, a mobile phone deal that offers a free Bluetooth headset may be considered as part of a package deal rather than a sales promotion.

Time limit

The ASA typically considered only advertisements that have appeared within the previous three months, although there are some exceptions to this rule, namely in cases where it was not possible for the complainant to know that the advertisement was misleading at the time it appeared, such as an advertisement for a long-term investment.

Complaints procedure

Data protection

The ASA needs the full name and address of the complainant in order to ensure that the complaint is legitimate. These details are never disclosed without the complainant's permission, in accordance with the Data Protection Act 1998. The only cases where the ASA might ask the complainant for their permission to be named relate to complaints that a consumer has not yet received goods or wishes to be removed from a marketer's database. Even in these cases the ASA can reveal details only with the express permission of the complainant.

If the complaint comes from a competitor or someone with a trade or vested interest with the advertiser about which they are complaining, the ASA requires the company to agree to be named. This, according to the ASA, limits the number of petty or retaliatory complaints. The ASA proceeds only with the express permission of the complainant for their organisation to be named.

Investigations

The ASA begins an investigation by contacting the advertiser for its views on the advertisement and, where appropriate, substantiation of claims made in it. The ASA may on occasion seek advice from industry experts on more complex issues.

Once the investigation is complete, a draft recommendation is sent to both the advertiser and the original complainant for any comments, with a request to keep this confidential until publication of the final report. The draft recommendation is then submitted to the independent Advertising Standards Authority Council, which adjudicates on ASA investigations. The ASA Council then discusses the complaint and the draft recommendation, and votes on whether to uphold the complaint or not. The adjudication in full is subsequently posted on the ASA's website, and made available to the press and the general public.

Appeals procedure

If there are grounds for an appeal against an adjudication, the case is reviewed by the Independent Reviewer.

A request for an independent review must be made within 21 days of the adjudication, and in writing direct to the independent reviewer, stating the grounds for appeal. Only the advertiser or the original complainant may request an appeal.

There are two grounds upon which an appeal can be lodged:

• Additional evidence (if it is the advertiser that has brought additional evidence to bear, it must explain why the evidence was not available during the investigation)
• Substantial flaw in either the ASA Council's adjudication or the investigation

The Independent Reviewer's decision as to whether or not to accept an appeal is final. Similarly, the ASA Council's adjudication on a reviewed case is also final.

Sanctions

Bad publicity

The ASA publishes weekly adjudications on its website every Wednesday.

Copy Advice

The ASA can order advertisers not to advertise unless the CAP Copy Advice team has seen the advertisement first and allowed the advertisement to go ahead. For example, the ASA told French Connection UK Ltd, which makes the FCUK branded clothing, to have all its advertisements pre-vetted by the CAP Copy Advice team.

CAP Compliance Team

The CAP Compliance Team is the enforcement arm of the ASA and CAP. The Compliance Team works to ensure that advertisers remove their problematic claims. The Compliance Team does not report back to complainants, nor does it publish the results of its work. However, part of its work does involve contacting media owners and telling them not to take any advertisements from problematic advertisers until the CAP Copy Advice team has pre-vetted the advertisements.

Office of Fair Trading

The Office of Fair Trading (OFT) has powers to fine companies and bring legal actions against them. If the ASA has trouble with a repeat offender, it can refer the matter to the OFT under the Control of Misleading Advertisements Regulations 1988.

Ofcom

The ASA can also refer problematic broadcast advertisers to Ofcom. Broadcasters have ultimate responsibility for advertisements shown on their channels and are therefore directly answerable to Ofcom, their licensing authority. Ofcom has powers to fine or revoke licences. For example, following more than 1,000 complaints to the ASA about the shopping channel Auction World.tv, the ASA referred the matter to Ofcom, which found the company in breach of its licence and fined it. Auction World.tv ended up in administration and went out of business.

Noteworthy rulings

Apple Inc.

Apple has been involved in two major rulings by the ASA; its claim to be selling "the world's fastest personal computer" in 2004, its Power Mac G5 system, was judged to be unsubstantiated. The complaints against two other claims made in advertising for the product were not upheld.^[8] Later, in August 2008, an advertisement for the iPhone was banned because of false claims that it could access "all of the Internet"—due to its lack of support of major plug-ins such as Flash.^[9]

Atheist Bus Campaign

On 21 January 2009 the ASA ruled that an advert campaign, stating "There is probably no God", did not breach the code. Religious groups including Christian Voice had complained that the Atheist Bus Campaign broke the advertising code on the grounds of substantiation and truthfulness. The ASA, which said that some of the complaints were that the advert was offensive and derogatory to people of faith, had to decide if God existed in order to rule on the complaint.

The ASA said that the British Humanist Association's campaign did not breach the advertising code or mislead consumers and that it therefore would not launch an investigation.

"The ASA council concluded that the ad was an expression of the advertiser's opinion and that the claims in it were not capable of objective substantiation," said the ASA. "Although the ASA acknowledges that the content of the ad would be at odds with the beliefs of many, it concluded that it was unlikely to mislead or to cause serious or widespread offence."^[10][11]

Israel tourism advertisement

In July 2009 the ASA banned an Israeli tourism poster following complaints. Palestine Solidarity Campaign, Jews for Justice for Palestinians and 442 members of the public complained about how the map on the poster displayed the West Bank, Gaza Strip, and the Golan Heights as part of Israel. The Israeli tourism ministry responded to the criticism, saying the map was a "general, schematic tourism and travel information map" and was not meant to be a political statement.^[12][13][14]

L'Oréal

L'Oréal's claims in a mascara advertisement featuring actress Penélope Cruz "exaggerated the effect that could be achieved by using the mascara on natural lashes".^[15]

In 2011, two additional makeup ads for L'Oréal's were banned after British Liberal Democrat politician Jo Swinson lodged complaints about ads for foundation products made by L'Oréal-owned brands, Lancôme and Maybelline, featuring actress Julia Roberts and supermodel Christy Turlington. The 2011 complaints stated that L'Oréal ads were not representative of the results that the products can actually achieve. ASA confirmed that both ads were misleading, without the aid of before and after shots. It ruled that the two ads breached advertising standards code for exaggeration and for being misleading, and banned them from future publication.^[16]

Brennan JB7 music player

In March 2011, 3GA's advertisements for a digital jukebox known as the Brennan JB7, which can import content from CDs and cassette tapes, were found to be in violation of ASA guidelines for glorifying illegal acts, because it implied that it was acceptable to rip music, since "[it] repeatedly made reference to the benefits of the product being able to copy music but did not make clear that it was illegal to do so without the permission of the copyright owner".^[17] 3GA denied the claims, stating that the copies of music stored on the device were intended to improve accessibility, and are incidental copies without economical significance. Making private copies of audio CDs is illegal under United Kingdom copyright law.^[18][19]

In January 2013, 3GA was also found to be in non-compliance in another set of ads for the JB7 which promoted an optional dock for attaching an MP3 player such as an iPod. The ASA found that their advertisements did not make clear that the dock was not included with the JB7, and did not adequately mention that it is only compatible with older iPod models (such as the iPod Classic) formatted for use on Windows and could not be used with newer Apple devices such as the iPod touch and iPhone.^[20]

Other rulings

• In February 2012, the ASA ruled that the local Northampton furniture store Sofa King could not use a tagline stating that their prices were "Sofa King low" because it would be considered "likely to cause serious and widespread offense", due to its use of a pun based on a profanity. Sofa King's owner disputed these claims, saying that he had run print advertisements in a local newspaper containing the offending slogan for ten years without any complaints, and compared the situation to FCUK being banned from using their name in such a fashion.^[21]
• Nestlé’s claim that it markets infant formula “ethically and responsibly” was found to be unsupported in the face of evidence provided by the campaigning group Baby Milk Action.^[22]

See also

• Advertising regulation
• Advertising to children
• Clearcast, pre-approval for most British television advertising
• Ofcom, the British telecommunications and broadcasting regulator
• Press Complaints Commission

References

1. "About the Advertising Standards Authority". Archived from the original on 15 October 2008. Retrieved 2008-10-10.
2. "Advertising Standards Authority: A short guide to what we do". Archived from the original on 11 November 2008. Retrieved 2008-10-10.
3. "The CAP Code: Substantiation Rule". Archived from the original on 16 September 2008. Retrieved 2008-10-10.
4. "The CAP Code: Truthfulness Rule". Archived from the original on 15 September 2008. Retrieved 2008-10-10.
5. "Close-up: Confident Parker settles into the ASA hot seat". LexisNexis. 2009-07-17. Retrieved 2010-09-29.
6. "History of Ad Regulation" Information on the history of advertising regulation on the ASA website
7. "ASA Digital Remit Advice". ASA Committee of Advertising Practice. 13 February 2011. Retrieved 2011-02-13.
8. "ASA Non-broadcast Adjudication: Apple Computer UK Ltd". ASA. 2004-06-09. Archived from the original on 25 September 2008. Retrieved 2008-10-27.
9. "UK iPhone Ad Banned for False Advertising". August 29, 2008. Retrieved 2008-12-03.
10. "Atheist bus ad campaign is not in breach of the Advertising Code". ASA. 2009-01-21. Retrieved 2009-01-21.
11. "Atheist ads 'not breaking code'". BBC. 2009-01-21. Archived from the original on 23 January 2009. Retrieved 2009-01-21.
12. Sweney, Mark (15 July 2009). "Israeli Tourism Posters Banned by Watchdog Over Controversial Map". The Guardian.
13. http://www.guardian.co.uk/media/2009/jul/15/asa-israel-tourism-poster# Israeli tourism posters banned by watchdog over controversial map
14. "ASA Adjudication on Israeli Government Tourist Office", Advertising Standards Authority.
15. "L'Oreal Rapped over Penelope Cruz Mascara Ads". Reuters. 25 July 2007. Retrieved 2008-10-27.
16. Sheppard, Mullin, Richter & Hampton LLP (2011-08-21). "About Face: Lancôme's Airbrushed Makeup Ads Banned in the UK". The National Law Review. Retrieved 2011-08-21.
17. "Digital player maker 'incited consumers to break the law', says ASA". The Register. Archived from the original on 7 April 2011. Retrieved 25 April 2011.
18. "Chancellor urged to decriminalise iPod users", Institute for Public Policy Research, 29 October 2006.
19. Spencer Kelly, "Digital lock's rights and wrongs", BBC, 16 March 2007.
20. "ASA Adjudication on 3GA Ltd". ASA. Retrieved 9 January 2013.
21. "Sofa King boss furious as ‘offensive’ shop advert is barred by industry watchdog". Northampton Chronicle & Echo. Retrieved 7 March 2012.
22. Ferriman, Annabel (13 February 1999). "Advertising Standards Authority finds against Nestlé". BMJ 318 (7181): 417. doi:10.1136/bmj.318.7181.417a. PMC 1114895. PMID 9974443.