The lawyer’s view

Clive Halperin
GSC Solicitors LLP

Given advertisers’ familiarity with the regulations, why are there so many complaints about breaches of the codes? Advertising is not a risk-free business and advertisers like to push boundaries, but perhaps in part advertisers feel that the negative impact of a breach is usually limited.
The chances of the public becoming aware that an ad has received complaints is low, save for very few high-profile cases. And even an adverse ruling might not have a detrimental impact on a brand; in the case of edgier brands it could even enhance it.

BT’s complaint about EE’s Kevin Bacon TV ad was not upheld [BT said EE’s claims about superfast broadband were misleading]. Even if it had been the ad had already been seen by millions. Had it been withdrawn, how many of those would ever have found out that it may have been misleading or changed their impression of EE as a result?

Having said that, even when a complaint is not upheld an unsuccessful complainant may feel they have won. Sainsbury’s is going to challenge the ASA’s decision that Tesco’s Price Promise claims are fair. Even if Sainsbury’s is vindicated, its action increases publicity for this campaign. Yet if Tesco successfully defends the promotion, the ongoing publicity may still cause some shoppers to be more suspicious of Tesco’s claims.

However, advertisers should not forget this is not simply a game of chance, with the only consequences being tactical ones. The ASA can refer persistent offenders to the OFT – as it did with Ryanair in 2008 – and breach of legislation such as the Business Protection from Misleading Marketing Regulations and the Consumer Protection from Unfair Trading Regulations can result in criminal prosecutions.

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