The new ASA has an ally with a big stick

A major shake-up in the advertising landscape is being implemented: next week, Ofcom hands over its power to regulate broadcast advertising to the Advertising Standards Authority (ASA). The move to bring together a self-regulatory system and a statutory-control one comes amid increasing pressure for a crackdown on food and alcohol advertising and advertising to children.

The ASA, set up in 1962, oversees print, cinema and online advertising. However, since the launch of commercial television in 1955, broadcast ads have been subject to statutory codes. The Independent Television Commission and the Radio Advertising Bureau governed TV and radio ads respectively. Ofcom took over this remit last year, under the Communications Act.

But Ofcom is transferring all these responsibilities to a new self-regulatory body – the “new” ASA – from next month. The ASA, with a freshened-up logo, will act as a one-stop shop for broadcast and non-broadcast advertising. It will include a code-writing body for TV and radio advertising, the Broadcast Committee of Advertising Practice (CAP (Broadcast)). This will mean that for the first time, stations – alongside advertisers – will have a direct say in drawing up and reviewing standards for the ads they air.

CAP (Broadcast) will work alongside the non-broadcast Committee of Advertising Practice; a judicatory body called ASA (Broadcast) and a funding body, the Broadcast Advertising Board of Finance (Basbof). Advertisers will pay the ASA 0.1 per cent of the cost of airtime, regulated by the funding body.

Ofcom, however, will retain formal legal responsibility for broadcast ad regulation, while broadcasters will remain answerable to Ofcom over programme content. All TV sponsorship will also fall under the remit of the super-regulator, and Ofcom will continue to enforce rules on preventing certain kinds of TV ads, such as those for political parties.

So it is no surprise that, while the advertising industry is congratulating itself on its ability to ward off government intervention and instead set up a completely self-regulatory system, there are voices of concern regarding Ofcom’s “back-stop” powers.

Though maintenance of the current TV and radio advertising codes will now be the responsibility of CAP (Broadcast), any changes will have to be supported by evidence, subject to public consultation and eventual approval by Ofcom. It may also be significant that Ofcom’s new, tougher regulations on alcohol advertising are set to be unveiled on the same day as the launch of the new ASA.

Publicis chief executive Grant Duncan says: “We support broadcast advertising co-regulation. But if Ofcom has back-stop powers, to what extent will it use them? Also, what will be the speed of its response? The industry will want that to be based on commercial realities and not led by civil servants.”

Organisations such as the Consumers’ Association (CA) have opposed the move to hand powers to the ASA. Alan Williams, senior policy adviser at CA’s Which?, says: “Theoretically, a one-stop shop for consumers is a great idea, but our main concern is about the harmonisation of codes in coming years. Consumers have different expectations when reading FHM magazine to when they are watching TV at four in the afternoon.”

Williams adds that there is concern that the ASA’s new remit could lead to a loosening of regulations.

ASA director general Christopher Graham rejects these criticisms. He says: “The reason Ofcom retains its back-stop powers is that, if the new ASA is not taken seriously, then Ofcom can act like a stick in the cupboard. Also, the name of the game is consistency and alignment, not rewriting all codes.”

Graham says that the new joined-up regime will try to avoid inconsistencies such as the Tetley case of two years ago. Tetley’s TV scripts, which claimed tea is rich in antioxidants that can help keep the heart healthy, were cleared for screening, but the ASA upheld complaints questioning the same “flimsy” health claims in other media.

However, he concedes that one of the main challenges for the new system will be speed of response. It has already been decided that if a TV ad proves to be massively contentious, then it will be taken off air immediately pending an ASA decision.

Industry experts are of the opinion that if anyone can make the “joined-up” effort work, it is Graham. A former secretary and head of internal complaints at the BBC, he has stood twice as a parliamentary candidate for the Liberal Democrats and is seen to have the right kind of clout needed for the “big” job. He also chairs the European Advertising Standards Alliance.

For the moment, the advertising industry seems comfortable that the Government has acknowledged that self-regulation is effective. But while the ASA has been given a chance to show the industry that it is ready to take on the challenge and responsibility of self-regulation, it has made it clear that the situation is anything but a free-for-all. If the ASA falls down on its enlarged remit, there are ample opportunities for Ofcom to step in.