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The Advertising Standards Authority (ASA) is the self-regulatory organisation (SRO) of the advertising industry in the United Kingdommarker. The ASA is a non-statutory organisation and so cannot interpret or enforce legislation. However, its code of advertising practice 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. 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".

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.

Remit

Printed media

Typically, advertisements that fall in paid-for spaces in newspapers (both national and regional) and magazines published in the United Kingdom fall within the remit of the ASA. (This category covers reciprocal arrangements not involving actual payments of money.) Advertorials are also within the ASA's 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

Claims on a company's own website are generally outside the ASA's remit, but the ASA can typically consider 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:

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 considers 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

How to complain

Complaints can be made to the ASA in a variety of ways:
  • by telephoning the ASA on (020) 7492 2222
  • by faxing the ASA on (020) 7242 3696
  • by contacting the ASA at new.complaints@asa.org.uk
  • by writing to the ASA at the postal address on its website
  • by completing the online complaints form on the website.


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. 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:
  • where additional evidence has come to light. If it is the advertiser that has brought additional evidence to bear, it must provide an explanation as to why the evidence was not available during the investigation.
  • where there has been a substantial flaw in either the ASA Council's adjudication or the investigation process.


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 Ofcommarker. 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 and/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

Thepool.com

In an unusual step, the former chairman of the ASA, Lord Borrie Q.C., requested that advertisements for an online gambling company, thepool.com, be removed immediately pending investigation following a complaint from a member of the public. The advertisements were deemed to have breached strict ASA rules on advertising gambling to under 18s. One of the 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 of this attempt to circumvent its Code and upheld the complaint, telling the company not to repeat the approach.

Atheist Bus Campaign

On Wednesday 21 January 2009 the ASA ruled that a controversial atheist ad campaign, which sparked the ire of Christian groups for proclaiming "There is probably no God", did not break its code. Religious groups including Christian Voice complained to the Advertising Standards Authority arguing that the Atheist Bus Campaign, which ran on buses with the strapline "There is probably no God. Now stop worrying and enjoy your life", broke the advertising code on the grounds of substantiation and truthfulness.

The ASA, which said that some of the complaints were that the ad was offensive and derogatory to people of faith, faced the prospect of having to decide if God existed in order to rule on Christian Voice's complaint.

However, the watchdog 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."

Israel tourism advertisement

ASU reportedly banned an Israelimarker tourism poster following public complaints. Many complained about how the map on the poster displayed the West Bankmarker, Gaza Stripmarker, and the Golan Heightsmarker as part of Israeli proper. Palestine Solidarity Campaign and Jews for Justice for Palestinians were said to have complained about the tourism advertisement. The Israeli tourism ministry responded to the criticism, saying the map was a "a general schematic tourism and travel map" and was not meant to be a political statement.

Other rulings

  • Apple, Inc.marker's claim to be selling "the world's fastest personal computer" in 2004, its Power Mac G5 system, were judged to be unsubstantiated. The complaints against two other claims made in advertising for the product were not upheld. Later in August 2008, an advertisement for the company's iPhone was banned because of false claims that it could access "all of the Internet" (when it does not support plugins such as Adobe Flash or support for Java).
  • Microsoft's Get the facts campaign was biased.
  • 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. See also Nestlé boycott.
  • 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".


See also



References

External links




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