Advertising Standards Authority

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The Advertising Standards Authority (ASA) is the independent British self regulatory organisation (SRO) of the advertising industry. The ASA is a non-statutory organisation and so cannot interpret or enforce legislation. However its codes of advertising broadly reflect legislation in many instances.

The ASA is not funded by the British Government. The ASA is funded by a levy on the advertising industry, thereby operating a system of self-regulation.

The ASA's core purposes are to be a best-practice 'one-stop shop' for advertising regulation and to ensure that advertising is legal, decent, honest and truthful".

Contents

[edit] History of the ASA

In 1961, the Advertising Association established the Committee of Advertising Practice (CAP) to draft a code of advertising for advertisers to adhere to. CAP drafted the first edition of the British Code of Advertising Practice (the CAP Code. The advertising industry, along with the Advertising Association had concluded that it was in their best interests to set up a system of self-regulation, because some form of regulation was inevitable and if no self-regulation system was set up, it would be a matter of legislative regulation which would bring with it the threat of fines and court orders.

In 1962, following the introduction of the CAP Code, the industry set up the Advertising Standards Authority to adjudicate on complaints that advertisements had breached the Code. The ASA operated under an independent chairman who was to have no vested interest within the industry so as to remain fair and impartial.

Not long after the inception of the ASA, the Molony Committee considered, and then rejected proposals to introduce a system to regulate the advertising industry by statute, similar to the Federal Trade Commission used in America. The Committee reported that they were 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. [1] The inference was, of course, that should the ASA not be up the job, they would be stripped of their powers and a statutory system would be put in its place.

With the ASA in place and seemingly performing well, a more level playing field was created that appeared to benefit both consumers and competitors.

[edit] How the ASA is funded

Because the ASA is non-statutory and not controlled by the Government, it is not funded either by the Government itself or by tax payers money. The ASA is funded by a voluntary levy on advertising display costs.

In order for the ASA to operate at 'arms-length' from the industry, an organisation called ASBOF was set up to collect the funding for the ASA. ASBOF exists to ensure that the ASA does not know which advertisers have contrinuted to the voluntary funding, so there can be no question of money influencing the ASA's decision. From the advertiser's point of view, it is in their interests to ensure the ASA is fully funded, to avoid the need for potentially more onerous legislative regulation. ASBOF collects a 0.1% levy on the advertising costs of non-broadcast advertisements, and a 0.2% levy on Mailsort contracts from direct mailers. [2]

To collect money from broadcast advertisers (those on TV and Radio), an organisation called BASBOF was set up. BASBOF works in a similar fashion to ASBOF, and collects the voluntary 0.1% levy on boradcast advertising costs, allowing the ASA to operate at arms-length from the industry. Again, the ASA has no knowledge of who has paid into the levy. Under the terms of the agreement with Ofcom, BASBOF must continually demonstrate that they have adequate funding for the ASA; Ofcom has stipulated that it will not subsidise any shortfall in funding. [3]

[edit] History of broadcast advertising regulation

In 1955, the first commercial television programme was broadcast in the United Kingdom, courtesy of ITV. [4] The government was concerned that the control of advertising on television should be subject to the same level of statutory regulation as programmes, due to the highly powerful and suggestive nature of broadcast advertising. The Broadcasting Act 1954 had set down a set of strict guidelines, and from this advertising guidelines were created.

The Broadcasting Act 1990 superseded this legislation and from it the Independent Television Commission (ITC) was created. The Act required the ITC to draw up, review and enforce new, stricter, broadcast advertising codes. The ITC regulated broadcast advertising from 1 January 1991 to 28 December 2003 when Ofcom took over the duty and the ITC was disbanded - although many of their staff joined Ofcom.

In November 2004, control of the regulation of broadcast advertising was handed over to the ASA on a provisional two year contract with a view to making the move permanent should results be satisfactory, effectively making the ASA a "one-stop shop" for advertising complaints.

[edit] The ASA's remit

[edit] Printed media

Typically, advertisements that fall in 'paid-for' spaces in newspapers (both national and regional) and magazines that are published in the UK fall within the remit of the ASA. 'Paid-for' does not necessarily mean an exchange of money; a reciprocal arrangement that does not use money could also be considered within the ASA's remit. Advertorials are also within the ASA's remit as long as a reciprocal arrangement of some kind is in place and - crucially - control over the content of the advertorial lies with the advertiser. If the editor of the publication maintains control over the advertorial, the piece is likely to be seen as editorial rather than advertising and will therefore lie outside the ASA's terms of reference.

[edit] Broadcast media

As of November 2004, the ASA has had control over broadcast advertising. Advertisements that appear in paid-for advertising spaces on both television and radio are within the ASA's remit to consider. Sponsorship Credits are considered to be part of programming content and therefore fall outside of the ASA's remit, and into Ofcom's remit. Claims on shopping channels can generally be considered, however 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.

[edit] Direct marketing

Direct mailings, circulars, leaflets, unsolicited emails, brochures and catalogues are all typically within the ASA's remit. Items such as timeables and price lists are, however, usually outside the ASA's remit, as provided by Clause 1.2 of the CAP Code. Private correspondence, such as a doctor's letter or a bill are also outside its remit, however a leaflet included with the private correspondence would be covered if it were promoting a new or different product.

[edit] Internet

The Internet by its very nature is largely unregulated and the ASA has very specific terms of reference with regards to advertising on the Internet. Claims on a company's own website are generally outside of the ASA's remit. However, the ASA can typically consider claims that appear in 'paid-for' spaces on the Internet; i.e. pop up ads, banner ads and sponsored links. However the CAP Code can only apply to marketers who advertise within the United Kingdom - given the non-geographical nature of the Internet this can be hard to determine. For example, claims by an American company in a sponsored link on Google.com would be outside its remit, whereas claims by an American company in a sponsored link on Google.co.uk would be inside its remit. As well as the above, online sales promotions (see below) are within the ASA's remit as long as they appear in "British web space".

[edit] Sales promotions

The Institute of Sales Promotion (ISP) has had big say over the years as to how Sales Promotions should be administered. Working to the same Code as the ASA, the ISP can refer complaints to the ASA when it feels there has been a breach of Sales Promotions rules. That being said, there has been no clear definition of what constitutes a sales promotion for the purpose of the CAP Code. Examples of Sales Promotions are:

This is by no means an exhaustive list, but it gives an idea of what may be considered a sales promotion. 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 not be considered a sales promotion per se - it could be seen as part of a package deal.

[edit] Time limit

The ASA typically only considers advertisements that have appeared within the previous three months, although there are some exceptions to this rule. Generally speaking, complaints must be made within three months of the advertisement appearing, due to the fact that if it were to investigate advertisements regardless of when they appeared, the ASA's resources would be drained with little hope of remedial action against the advertisers. The ASA can, in special circumstances, consider complaints about advertisements that appeared more than three months previously, namely if it could not have been possible for the complainant to know that the advertisement was misleading at the time (advertisements for long-term investments would be such an example).

[edit] Complaints procedure

[edit] How to complain

When someone has a complaint about a member an advertisement, they need to inform the ASA. They can lodge their complaint in a variety of different ways:

  • Telephone the ASA on (020) 7492 2222
  • Fax the ASA on (020) 7242 3696
  • Email the ASA at new.complaints [at] asa.org.uk
  • Write to the ASA, the full address is on the Contact Us section of the ASA website, www.asa.org.uk.
  • Complete the online complaints form on the ASA website in the How To Complain section.

Tips for complainants: The ASA needs to see the advertisement before it can consider the objections. The ASA does not have access to all regional press or non-commercial magazines. Therefore, complaints made in writing together with a copy of the advertisement tend to be dealt with quicker.

[edit] Data protection

In order to take up a complaint, the ASA needs a 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 are for complaints that a consumer has not yet received their goods, or that a consumer wishes to be removed from a marketer's database (obviously the ASA would be unable to resolve these cases without the complainant agreeing to be named). However the ASA can only reveal details with the express permission of the complainant. In the vast majority of cases, however, the complainant remains anonymous.

That being said, industry complaints are also actioned on a named basis. 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, retaliatory or 'tit-for-tat' complaints. Again, the ASA will only proceed once it has the express permission of the complainant for their organisation to be named as the complainant.

[edit] Investigations

Should the ASA consider the advertisement to be a problem under its Code, it may decide to launch an investigation. This involves contacting the advertiser for their views on the advertisement and to obtain any substantiation, where appropriate. The ASA may, on occasion, seek advice from industry experts on more complex issues.

Once the investigation is complete, a draft recommendation is made which is sent to both the advertiser and the original complainant for any comments. The draft recommendation is then submitted to the independent Advertising Standards Authority Council which adjudicates on ASA investigations. The ASA Council then discuss the complaint in line with the draft recommendation and vote as to whether to uphold the complaints or not uphold the complaints.

The adjudication in full is subsequently posted on the ASA website in the adjudications section and made available to the press.

[edit] Appeals procedure

Clause 60.38 of the CAP Code outlines the appeals procedure for ASA investigations. Should there be grounds for appeal, then the case will be reviewed by the Independent Reviewer. Only cases that have been presented before the ASA Council can be reviewed; complaints with which there have not been deemed grounds for investigation cannot be appealed against.

The Clause provides that requests for an independent review can only be made within 21 days of the adjudication, and must be made in writing direct to the independent reviewer stating the grounds for appeal. Only the advertiser or the original complainant may request an appeal; those that did not complain at the time of the adjudication cannot request an independent review. Additionally, there are only two grounds upon which an appeal can be lodged:

  • Where additional evidence has come to light. If it is the advertiser that has brought additional evidence to bear, they must provide an explanation as to why the evidence was not available during the course of the investigation, since Clause 3.1 of the CAP Code states that advertisers must hold substantiation before any claims are made.
  • Where there has been a substantial flaw in either the ASA Council's adjudication, or the investigations process by which the adjudication has been made.

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.

[edit] Sanctions

Enforcing the Code of Advertising is essential for the ASA in order to ensure that advertising values are adhered to. Although the ASA itself cannot fine companies who breach its Code, or bring legal action against bad advertisers, it does have a number of sanctions to hand.

[edit] Bad Publicity

Contrary to the saying, not all publicity is good publicity and the ASA realises that bad publicity is bad news for most marketers. After all, the majority of consumers would find it hard to trust a company that repeatedly found itself in breach of advertising rules. To this end, the ASA publishes weekly adjudications on its website every Wednesday where full details of its investigations can be found. To view ASA adjudications, visit the adjudications section of the ASA website. The press are also granted full access to the same information that is included in its weekly adjudications, bringing even more bad publicity to bad marketers.

[edit] Copy Advice

The ASA can order advertisers not to advertise unless the CAP Copy Advice team have seen the advertisement first and allowed the advertisement to go ahead. The most famous example of this was when the ASA told French Connection UK Ltd, who make the FCUK branded clothing, to pre-vet all their advertisements with the CAP Copy Advice team.

[edit] 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 is a rather secretive arm of CAP as it does not report back to complainants, nor does it publish the result 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 have pre-vetted the advertisement.

[edit] Office of Fair Trading

The Office of Fair Trading (OFT) is the ASA's legal enforcement body. The OFT has powers to fine companies and bring legal action to them. If the ASA has trouble with a repeat offender, they can refer the matter to the OFT under the Control of Misleading Advertisements Regulations 1988. The OFT can then take whatever action they deem necessary.

[edit] Ofcom

The ASA can also refer problematic broadcast advertisers to Ofcom. Broadcasters have ultimate responsibility for the advertisements on their channel and are therefore answerable to the statutory organisation which provides the license, Ofcom. Ofcom has the power to fine and/or to revoke licenses. following over 1,000 complaints to the ASA about the shopping channel Auctionworld, the ASA referred the matter to Ofcom who found the company in breach of its license and fined it. The fine was eventually the final straw and Auctionworld ended up in administration and went out of business.

[edit] Noteworthy rulings

[edit] Thepool.com

In an unusual step, the chairman of the ASA, Lord Borrie Q.C., ordered the advertisements for online gambling company thepool.com to be removed immediately pending investigation following a complaint from a member of the public - the ASA usually only orders advertisements to be removed following an investigation. The advertisement was deemed to have breached strict ASA rules on advertising gambling to under 18s.

One of the series of advertisements asked "Did you know it is legal to gamble at 16?" and featured the number '15' in a crossed-out sign. The ASA took a very dim view on the attempt to circumvent its Codes and upheld the complaint, telling the company not to repeat the approach. To add to the controversy, the minister for Secretary of State for Culture, Media and Sport, Tessa Jowell, wrote to the ASA describing the advertisement as "utterly reprehensible". Thepool.com responded by suggesting that if Tessa Jowell felt that it was wrong to aim their advertisement at 16 year olds then she should change the law to increase the minimum gambling age from 16 to 18.

[edit] Other rulings

[edit] See also

[edit] References

  1. ^ "History of Ad Regulation" Information on the history of advertising regulation on the ASA website
  2. ^ "CAP Non Broadcast Overview" Information on CAP & ASA including how the ASA is funded
  3. ^ "Ofcom Broadcast Regulations Consultation" Information on who will fund the ASA's broadcast arm
  4. ^ "ITV Celebrates 50-year Milestone" BBC article on 50 year ITV history

[edit] External links

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