Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
In the interests of transparency and to help avoid vexatious complaints, the ASA expects more from intra-industry complainants than it does of public complainants. To that end, the ASA obliges industry complainants to seek to resolve complaints about competitors directly with them before having recourse to the ASA system. The aim is for disputes to be resolved in a fair and prompt way, in the spirit of fair competition and with the minimum of formality and cost.
Before referring a matter to the ASA;
- Competitors are expected to raise their concerns with the advertiser, ideally by registered post, or by another means of communication which will guarantee swift receipt.
- The complaint must provide an appropriate degree of detail in relation to the claim and the media in which it appeared, together with the factual grounds for complaint. The ASA expect competitor complainants to give solid grounds for their objection and back up any assertions with sound logic and possibly substantiation. The advertiser should be able to readily identify the advertisement and understand what is alleged.
- The complaint should be signed by a suitably senior officer of the competitor complainant (e.g. CEO, Legal, Marketing or Regulatory Director) or by a person who has been identified to the ASA as having suitably delegated responsibility for the accuracy of the complaint.
- The complaint should be addressed to a senior officer or other appropriate contact of the advertiser.
- You should allow five working days for a response from the advertiser. If, at the end of that period, the advertiser has not opened a substantive dialogue, you have other reasonable cause to believe that the advertiser will not act within a reasonable timeframe or in good faith in response to your complaint or you cannot reach an agreement, then you are free to submit a complaint to the ASA (including all relevant correspondence in your submission).
Contact between competitors aimed at the settlement of genuine disputes about advertising claims will not normally give rise to competition law issues. Parties are advised to seek their own legal advice in relation to these issues.
The ASA will take into account any information you supply in support of your complaint when deciding whether or not to investigate it. You should note that, if you wish the ASA Council to then rely on this information when making a ruling, you will have to agree to it being disclosed to the advertiser. They must have an opportunity to see and respond to the case being made against their marketing, and the information that is to be considered by the ASA Council.
The ASA will also disclose the identity of competitor complainants to advertisers and seeks a written assurance that there is no related legal action pending or in progress. Because the self-regulatory process is an alternative to pursuing complaints through the courts, it would be wrong for the ASA to risk prejudicing legal action. As such, the ASA does not knowingly investigate complaints that have or will be the subject of legal scrutiny.
While it is not uncommon for competitors to seek to circumvent these requirements by posing as consumers and not making their competitor status known to the ASA, you should know that they take a very dim view of such behaviour. The Executive is also generally quite adept at spotting competitors masquerading as members of the public, and will often call out the complainant in such cases.