Advertising Regulation and the Law

The system of advertising control supervised by the ASA operates within a framework of law. Over 170 statutes directly affect advertising, and the British Code of Advertising, Sales Promotion and Direct Marketing (the CAP Code) the Television Advertising Standards Code and the Radio Advertising Standards Code (the BCAP Codes) operate alongside existing legislation.

The Law

One of the basic principles of the CAP and BCAP Codes is that advertisements should be legal. The ASA does not enforce the law but refers complaints which fall directly under legislation to the appropriate statutory or law enforcement body.

In many instances the CAP and BCAP Codes goes further than the law requires. Under the Authority's system of control, the normal judicial burden of proof is reversed: advertisers must prove to the ASA that their claims are true.

Another distinction is that the CAP and BCAP Codes are applied in the 'spirit' as well as in the letter.

Control of misleading advertisement regulations

The whole system of self-regulation were the subject of official scrutiny in 1978 by the Office of Fair Trading and in 1980 by a Department of Trade and Industry working party.

These investigations concluded that, although the system worked well, some further legislation would provide a better framework within which self-regulation could operate.

The legislation was introduced as a result of the 1984 EC Directive on Misleading Advertising. This provided the ASA with an additional sanction whereby the Director General of Fair Trading could be asked to initiate legal action against advertisers for serious or persistent breaches of the CAP Code.

The Directive was implemented in the UK as the Control of Misleading Advertisements Regulations 1988 (CMARs). These recognised the ASA as an 'established means' for controlling the content of non-broadcast advertising. Where an advertiser, agency or publisher persistently or deliberately breaches the CAP Code, the Authority can ask the Office of Fair Trading to use discretionary powers to seek an injunction through the courts. The Regulations have since been amended through the Control of Misleading Advertisements (Amendment) Regulations 2000.

Although, CMARs will be repealed shortly to make way for the new encompassing Consumer Protection Regulations (CPRs) which are currently going through Parliament; however, the ASA's remit will remain the same. The CPRs implement the EU Unfair Commercial Practices Directive which came into force in May 2005 (Directive 2005/29/EC)

Communications Act

The effectiveness of the advertising regulatory system was supported by Ofcom's contracting out of the regulation of broadcast advertising to the ASA, after it creation in 2003. Therefore, in 2004 the ASA became the one stop shop for all advertising complaints.  

ASA Action

Since June 1988, there have been 30 referrals to the Office of Fair Trading under CMARs. Six resulted in injunctions against the advertisers. On another 6 occasions the OFT accepted formal undertakings from the companies not to repeat misleading claims. These undertakings were made in equivalent terms to those which would have been sought in the courts and any subsequent breach of these agreements would result in a full injunction being sought by the OFT.

In October 1988, an injunction was secured against a company making exaggerated and unsubstantiated claims for a grapefruit diet pill. This prohibited them from making any further misleading claims. 

In November 1989, an injunction was granted against a company making misleading earnings claims in advertisements for a 'work-from-home' scheme. 

In October 1992, a referral of both an advertiser and their agency to the OFT resulted in undertakings secured from the companies that they would stop making misleading claims about a range of health and beauty products.

A company offering hair restoring products was the subject of an injunction in March 1996 when it continued to make misleading and unproven claims in advertisements.

In October 2000, the OFT obtained written assurances from a company that persistently made unsubstantiated claims that their product enabled leaded petrol engines to run on unleaded fuel.

For broadcast problems we have

Judicial Review

The ASA adjudications are open to judicial review and either the advertiser or the complainant in a case can make an appeal against a ruling. There have been 17 judicial reviews of ASA rulings, of which only one has been overturned: The Insurance Service plc in July 1989