‘Legal, decent, honest and truthful’ perhaps ought to be every brand’s marketing motto. But since it’s not, the Advertising Standards Authority (ASA) has claimed it as its own.
The body, which is funded by the advertising industry and is independent from government, has been regulating ads since 1962, but it is now adopting a new strategy for enforcing the Code of Advertising Practice. It is a move prompted by the proliferation of digital marketing channels and new advertising formats, which put more pressure on time and resources, as well as the increasing tendency of politicians and campaigners to use advertising as a political football.
It is a strategy that will be accompanied by a new advertising campaign launching in September and targeting both politicians and the public. It will depend on donated space, but the ASA aims to run ads in all the marketing channels it regulates.
The ASA wants to push up awareness levels, which have been static for the past decade, about what it does and how it is adapting. Chief executive Guy Parker says that the extra work the regulator has had to do since extending its remit to online marketing in 2011 means it needs to change. He does not rule out asking for more money from the industry, but the immediate focus will be on “dealing with issues in a more effective way, being more proactive and not thinking that the answer to every problem is a case investigation”.
The pressure is growing on the advertising industry to take a strong stance on provocative social issues – in particular, public health and advertising aimed at children and the financially vulnerable.
This follows recent campaigns to crack down on ads for fatty and sugary foods during children’s TV programmes, the marketing of payday loans and fixed-odds betting terminals, and dubious health claims by brands. The ASA is prioritising these areas at the expense of lower-profile breaches of the code.
There are probably issues we are not addressing to the extent we should because they are not coming through in our complaints bag
Guy Parker, ASA
It means that for many people who complain about ads “we will not be providing the level of service we are at the moment”, Parker admits. He cannot confirm whether some complaints will be summarily dismissed if they are clearly vexatious, or not pursued if they are not important enough. However, he argues the ASA will be able to “do more good” through better use of its time.
The decision to prioritise contentious areas also begs the question of whether the ASA is caving in to the threat of adverse media coverage and political interference, rather than following evidence that shows advertising causes harm to consumers. Parker’s analysis is more nuanced, claiming that they are problems for advertisers in so far as they are problems in society.
“We have a problem in the UK with obesity. The advertising of food high in fat, salt and sugar is a big advertising regulation issue. It’s no coincidence that those two things are true.”
Whereas before the ASA would have waited until a case investigation had allowed it to establish a view on a topic, now the regulator will look at external evidence such as the outcome of Public Health England’s current investigation into food advertising directed at children.
It is an approach that Parker says was foreshadowed by the ASA’s response to the Bailey review into the sexualisation of children. Several adjudications followed the report’s publication in 2011, banning ads that presented unrealistic or sexually objectified body images.
Parker says: “You don’t press a button for the machine to tell you whether the arguments and evidence are good enough. Judgement still must come into it. We need to be proactive in making sure we’re setting the rules in the right place in these sorts of areas. I don’t want the ASA system to be a system that is only ever reactive.”
He expects misleading pricing to be one area where the ASA will do a lot of proactive work. Proactivity does not only mean taking the initiative to address areas of obvious public concern. It also means the ASA will not necessarily wait for complaints to be made against a brand before taking action.
Nature of complaints
“Complaints don’t perfectly correlate with the problems that are out there and we know our complainants are not perfectly representative of the Great British public. They’re skewed towards the south and older, more ABC1 people,” Parker notes. “There are probably issues we are not addressing to the extent we should because they are not coming through in our complaints bag.”
Furthermore, the ASA’s current process of methodically judging all complaints about ads on their merits, no matter the wider context of the subject being addressed, can look slow and outdated. For example, it has frequently banned or cleared Christmas-related ads well into the new year, when the campaigns have long since ended.
The case-by-case approach has also prevented the ASA from giving advertisers clarity over evolving areas of the advertising codes. Parker points to one example of what could be considered ‘native advertising’ – video bloggers who take payment to endorse brands. How should this be flagged up as a piece of advertising? Under the previous regime, the ASA would decline to provide any advice or training unless it had a precedent.
“Advertisers don’t know the answers and I think there’s an onus on us through our strategy to get better at understanding the way these sorts of changes are happening, so we can provide quicker and better answers,” he says.
He cautions that getting advice will not make a brand immune from ASA action and that the regulator will always remain one step behind innovations in the industry, but he argues that this is to be expected. “If you have a regulator that is ahead of innovation, you don’t have innovation. It kills it.”
Parker also wants the ASA to have greater impact through its sanctions. This will mainly come from “being fast when it really matters, [for example] when there are issues of children emulating harmful practice”. He hopes that advertisers that fail to comply with rulings will be referred more quickly to statute-backed regulators with the legal power the ASA lacks.
A major criticism of the current regime is that the punishments available to the ASA are incapable of forcing an advertiser to comply if they simply decide to ignore the ruling. Parker disputes this assessment, saying: “While we may not have the legal muscle directly, we have friends who do – Ofcom and Trading Standards.”
But he admits: “We are not always going to be able to enforce all our decisions.”
An example could be last year’s adjudication against BrewDog, whose website was censured for using indecent language: the brewer responded in somewhat impolite terms that it would disregard the ruling (“they called us motherfuckers”, Parker recalls). In the end the offensive words were removed and not reinstated, but Parker admits that if laws are not broken, no-one can force a change to a company’s website.
In such a case, he argues, the ASA must be honest and recognise that the best course of action would be not “feeding the troll” further by providing the adversarial publicity the advertiser craves. But he adds: “There are not many BrewDogs. The vast majority of companies fight like tigers to avoid that.
What marketers should know: the ASA’s new five-point strategy
The ASA aims to be an authority on advertising, especially as it relates to issues of public concern, listening to calls for changes in regulation and assessing evidence beyond its own case history.
It will offer advice and training to advertisers on contentious areas of the code or emerging advertising techniques – even if there hasn’t been a previous ASA ruling to set a precedent.
The body will focus time and resources on priorities such as advertising to children and the financially vulnerable, as well as public health. It won’t seek to extend its remit further and will spend less time on less significant cases.
The ASA won’t wait to receive complaints if it identifies problem areas of advertising. It will proactively seek evidence, including through its own consumer research, and take action when it sees the need.
The ASA will run above-the-line advertising in donated space, to raise awareness of what it does so consumers and politicians know how they can engage with it.