Protecting consumers, testing claims

We receive more complaints about misleading advertising than any other issue. We insist that ads are honest and truthful - in the large print and the small.

The key to securing a fair deal for consumers and fair competition for business is the Code’s requirement that advertisers hold proof for their claims.

When challenged, advertisers must prove their claims are true. If they cannot prove it, they cannot claim it.

Self-regulation of non-broadcast advertising as we know it today began 40 years ago when the Advertising Association established what became the Committee of Advertising Practice (CAP), the industry body that sets the rules for advertisers, agencies and media. As the foreword to the very first edition of the British Code of Advertising Practice explained: “The function of advertising is the advocacy of the merits of particular products or services … and this Code seeks to define practices considered undesirable by the organisations which have subscribed to it.”

That was in 1961. The following year, the industry established the Advertising Standards Authority under an independent Chairman, to adjudicate on complaints about advertising that appeared to breach the Code.

Ribena Toothkind (1998): Advertiser SmithKline Beecham took the ASA to the High Court over the Authority's upheld adjudications against Ribena Toothkind advertising.  The judge supported the self-regulatory system.

Voluntary control

The same year, an official report on Consumer Protection by the Molony Committee rejected the case for an American-style Federal Trade Commission to regulate advertising by statute. “We are satisfied that the wider problem of advertising ought to be, and can be, tackled by effectively applied voluntary controls,” reported the Committee. “We stress, however, that our conclusion depends on the satisfactory working of the new scheme, and in particular on the continued quality and independence of the Authority at its pinnacle.”

Sony Computer Entertainment UK Ltd (1998): This mailing, which appeared to be a medical card and test results, was judged misleading by the ASA Council.

The aim of industry self-regulation was and remains to ensure that advertisements are ‘legal, decent, honest and truthful.’ That’s in the interest of consumers – and also in the interest of good advertising. The ASA acts to keep a level playing field for all advertisers by maintaining standards – so consumers and business can benefit from healthy competition on fair terms.

Direct Line Financial Services Ltd (1996): The ASA ruled that the words 'with instant access' were not acceptable in this national press ad as customers had to have money transferred to an existing bank or building society before they could access it.

Burden of proof

The majority of complaints to the ASA are about misleading advertising, so stopping dishonest or untruthful ads is the main business of the ASA. Under the self-regulatory system, the burden of proof is reversed in favour of the complainants. Advertisers have to be able to prove the claims they make if challenged. A number of celebrated pre-1962 campaigns would probably not pass the substantiation test today.

(1992): When Anthony Green and Co ignored ASA requests to change their misleading advertising the Authority referred the company to the Office of Fair Trading.

40 years on, advertising in the UK overwhelmingly complies with the Code. Because the industry is committed to making self-regulation effective, advertisements that break the Code can be withdrawn without resort to legal bans. Advertisers who flout the rules can be denied access to newspapers, magazines, poster sites, direct mail or the Internet. Since 1988, self-regulation has been backed up by statutory powers under the Control of Misleading Advertisements Regulations. The ASA can refer advertisers who refuse to co-operate with the self-regulatory system to the Office of Fair Trading for legal action. But this last resort is rarely needed.

Maltesers (1959): Since the introduction of the Codes in 1962, claims like this one have had to be backed up with documentary substantiation.

The Code has developed in detail, over eleven editions, to include specific rules for particular sectors. For example, from the outset the Code has sought to protect children from commercial exploitation. Today there are very few complaints about advertising to children in non-broadcast media. In 2001, we considered complaints about 59 advertisements and upheld only nine of them.

British Railways Board (1984): The Authority agreed with complainants that the layout of this poster ad was likely give a false impression about the proportion of trains that arrived late.

From the very first edition of the Code the misleading confusion of advertising with editorial material has been banned. And advertising must not masquerade as private correspondence.


In 1999 the ASA investigated 'advertorials' such as the one above from Sensodyne, against the background of a 47% growth in the use of this technique.

Partnership

The partnership between the Code writing Committee of Advertising Practice and the complaints adjudicating ASA is the great strength of today’s self-regulatory system. CAP interprets ASA rulings to the industry and helps advertisers to comply with the Code through Copy Advice and Help Notes.

J Sainsbury plc (2000): Claims about organic food have been a feature of recent supermarket advertising.  CAP's Help Note on organic claims is helping to keep such ads honest and truthful.

Self-regulation is flexible and can adapt speedily to new situations or products. Advertising can be aggressive in highly competitive markets. The ASA can move swiftly to address issues as they arise.

Over its first 40 years the ASA has built up a reputation for considered judgements and prompt action to secure compliance.

British Airways plc: Tough action by the ASA forced airlines to quote their prices inclusive of all taxes.  The ASA has also insisted that airline ads make clear exactly which airport is the destination so that consumers can assess flight 'bargains' fairly.

From under 100 complaints in its first year of operation, the ASA now receives nearly 13,000 complaints a year. The system has survived legal challenge from some of the most powerful advertising brands.

JEM Marketing (1994): This press ad breached the specific rules in the Codes for slimming products.

40 years after the Malony Committee reported, the Government too considers the self-regulatory system to be effective in the interests of consumers. Speaking at an industry summit to mark the 40th anniversary of the ASA, Consumer Minister Melanie Johnson congratulated the ASA, and the advertising industry, on its achievements over the last four decades: “The success of self-regulation is due to the hard work of many, including the ASA. But self-regulation could not work without the active participation and commitment of the advertising and publishing industries. The system also has a high level of recognition from the public and is important to consumer confidence in advertising,” she said.