Posts Tagged ‘ASA’

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ASA clarifies its online remit

Friday, October 8th, 2010

Last month we reported that the ASA plans to significantly extend its online remit. Our opinion was that this would bring much new material into their territory, and that your competitors may start complaining to the ASA if they feel there is potentially misleading information on your website.

This issue has clearly now been picked up by the ASA and CIPR. The ASA have clarified that “online public relations”, defined as “press releases, other public relations material and editorial content”, are not covered. The ASA will be concerned only with marketing communications, including advertising, sales promotion and direct marketing.

In our view, the boundaries of the above definition are currently insufficiently clear to prevent an influx of complaints once the new system gets underway. However CIPR will be giving further guidance, including examples of common types of activities considered as “public relations”– whether this will resolve the issue remains to be seen.

Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.

Oliver Sweeney

Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com

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Ice cream is our religion

Wednesday, September 15th, 2010

On Wednesday the ASA ruled that an advert for Antonio Federici ice cream was offensive to Catholics. The advert depicted a heavily pregnant woman, dressed as a nun, holding a tub of ice cream. The advert’s text said “Immaculately Conceived….”

Federici said that their advert was a form of art and self-expression. They felt that advertising should be challenging and often iconoclastic. However the ASA said that the use of the image was likely to be seen as a distortion and mockery of the beliefs of Roman Catholics, and using it in a light hearted way to advertise ice cream was likely to cause serious offence.

In response, Federici have stated that they will be unveiling a new advert, which continues this theme, to coincide with the Pope’s visit to the UK.

This approach is similar to ambush marketing, and at the very least, contradicts the spirit of the ASA’s ruling. Is this another example of an adverse ASA ruling providing useful publicity for a brand?

Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.

Oliver Sweeney

Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com

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ASA to investigate your website

Wednesday, September 1st, 2010

The Advertising Standards Authority (ASA) today announced that it will be extending its remit to cover marketing communications which appear on businesses’ own websites. Previously, the ASA’s online coverage only extended to paid-for adverts. The change will come into force on 1 March 2011.

This is a significant change, as it brings a large amount of new material into the ASA’s territory. The ASA will now have the power to, for instance, examine claims made about your product on your website, and pronounce that they are misleading, or socially irresponsible. The ASA would then require that such claims not be made again. Businesses which operate primarily online through their own website could find themselves subject to ASA investigation for the first time.

An adverse ASA adjudication can produce a great deal of negative publicity, and in addition the ASA have decided that they may in future place their own advertisements online, to be found by search engines, to name and shame advertisers who refuse to comply with their rulings. For this reason your competitors may look to instigate a complaint if they feel there is misleading information on your website. Businesses should take the opportunity now to submit their website’s content for review, to avoid the risk of a complaint.

Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.

Oliver Sweeney

Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com

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New ASA rules come into effect this week

Friday, August 27th, 2010

The new CAP and BCAP Codes come into effect on 1 September 2010.

Changes include:

  • an over-arching “social responsibility” rule for broadcast adverts
  • clearer guidance for both broadcast and non-broadcast on what the ASA will consider are unfairly exaggerated “green” claims
  • rules preventing marketers from collecting data from children under 12 and from exploiting the trust that young persons place in parents, teachers or other persons
  • clarification on the acceptable use of the word ‘free’
  • a requirement that prize promotions be clear about which prizes are available to win and those that are guaranteed to be won
  • new sector-specific rules for charities, food and drink, adult products, debt advisers and lotteries

Advertisers should review their current marketing projects against the updated Codes, so that they do not get caught out by the changes – and so they do not miss out on any new opportunities now available.

Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.

Oliver Sweeney

Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com

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7 is more than 3 but less than acceptable

Friday, August 13th, 2010

In the motor industry it is important to differentiate your product, and currently concerns about quality are running high. So Kia’s ’7 year warranty’ advertising campaign is timely – however, the ASA have this week ruled that it should not be repeated as it is misleading.

Kia had failed to sufficiently highlight that the warranty was subject to a 100,000 mile limit, and that not all items would be covered for the full length of the warranty – even though the 100,000 mile limit was referred to in the final frames of the ad, and was considerably in excess of the UK’s average annual mileage (around 10,000 miles).

Although the ruling is not fatal for Kia’s ’7 year warranty’ strapline, Kia will have to alter its adverts. Advertisers of course want to have a clear message, but this ruling shows how difficult this can be if there are significant qualifications to an offer, which need bringing to the consumer’s attention. If an offer is qualified – that information must be as clear as the strapline itself.

Fiona Carter

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

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Marie Stopes to run first ever abortion advisory TV advert

Monday, May 24th, 2010

At 10.10pm on Channel 4 this Monday, the UK will see its first ever TV advert aimed at providing women with advice about abortion.

Abortion has been legal in the UK for more than 40 years, but advertising rules still restrict commercial providers from advertising their services. Though clearly the advert will be highly controversial, Marie Stopes say they have taken legal advice and have been given permission to air the advert, as they are a “non-commercial organisation.” Such organisations, including the Government, are permitted to advertise “pregnancy advisory services.”

Similar, the ASA have said that non-commercial providers of post-conception advice services have long been permitted to run such advertisements. Any advert that is broadcast has to comply with all the relevant rules in their Advertising Code. However, the ASA cannot act on objections that viewers might have about the service being advertised at all – they can only act on complaints, after broadcast, that the advert has breached its codes, for instance on its actual content, or inappropriate scheduling.

Nevertheless, the Society for the Protection of Unborn Children is considering making a challenge to the legality of the advertisement. As the ASA have set out the limits of their involvement, it will be interesting to see what other route SPUC try to pursue to prevent such advertisements – potentially arguments about human rights, including the right to life and the right to free speech, may be involved.

From a legal perspective, this shows the importance of seeking advice before embarking on an advertising campaign, because Marie Stopes are now able to state that they have taken such advice ahead of any controversy which might be brewing. It shows the limits of the ASA’s remit, even in highly controversial cases – but also that these limits do not prevent offended groups from seeking to take other forms of legal action.

advertisement will ask women “are you late?”, and will direct those facing an unplanned pregnancy to Marie Stopes’ helpline. It is anticipated that the advertisement will cause uproar amongst pro-life campaigners.

This may be Legal Honest and Truthful – but is it Decent?

Fiona Carter

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

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Politically Correct

Monday, April 26th, 2010

As some politicians are “firing up their Quattros” for one of the most finely balanced of recent election campaigns every stray vote will count.

We are all likely to find ourselves receiving more and more promotional material. So much so that the Advertising Standards Authority (ASA) has felt it necessary to remind voters that although it regulates nearly all forms of advertising – it does not regulate election advertising.

Adverts that are designed to persuade voters in a local, national or international election referendum are not covered by the Advertising Code.

Does this represent a true example of protecting our human rights to free speech or does it give politicians a right to free unregulated publicity to say whatever they want – at whatever price to win votes and power?

Fiona Carter

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

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The ASA extends its reach online

Thursday, March 11th, 2010

The Advertising Standards Authority can require that adverts deemed to be misleading, unfair or offensive, are not to be repeated. But with the expansion of digital media, a noticeable gap in the ASA’s jurisdiction has emerged – the ASA only adjudicates on complaints relating to paid-for advertising.  

Now this gap is to be plugged. The Advertising Association has recommended that the ASA’s remit be extended to cover marketing communications on companies’ own websites. It means that website owners will now need to review their own websites’ content to ensure that they can prove that they comply with the CAP codes.

Key provisions from the Code include that:

  1. marketers must hold evidence to substantiate their claims
  2. marketers should ensure that prices are clear and match the products illustrated
  3. special care should be taken when products intended for adults may fall into the hands of children
  4. claims comparing your products to your competitor’s products are subject to strict conditions.

If the recommendation is adopted, these changes could come into effect from September 2010.

With advertising in digital media becoming increasingly dominant in the marketplace, this was an obvious decision to make. Our immediate thoughts are: will businesses seek to use this to their advantage by complaining about their competitor’s websites? And what implications will this have on the use of user-generated content in marketing?

Fiona Carter

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

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Alcohol advertising to be subjected to Government regulation?

Tuesday, January 12th, 2010

On 11th December, we reported that the BMA were seeking a total ban on alcohol advertising. But, we noted that to date, the Government had stood firm and supported the self regulation of alcohol advertising by the Advertising Standards Authority (ASA).

Well, now the Parliamentary cross-party Health Committee has called for the introduction of minimum pricing per unit of alcohol, together with tighter regulation on the marketing of alcoholic drinks.

Of particular concern are :

  1. the marketing of alcohol via sponsorship of events at which at least 10% of those in attendance would be under 18, and
  2. marketing of alcohol via online campaigns, including viral and social network marketing.

The conclusion is that these avenues are poorly regulated by the existing scheme of supervision. Proposals include a suggestion that an independent body be set up to regulate alcohol advertising. This would be a significant departure from the existing scheme of self-regulation.

Any new regulator would no doubt be looking immediately to claim a high profile “scalp.” If these proposals do go forwards, it will become more important than ever for drinks companies to ensure that they have an audit trail, to show that their product marketing is responsible and in accordance with guidelines.

Still – if by April we have a Conservative government (who would be looking to cut public spending, and boost the economy), in our opinion any “nanny state” plans such as these may, in the medium term, be substantially amended, if not shelved altogether.

Fiona Carter

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

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Under the Influence

Friday, December 11th, 2009

A total ban on alcohol advertising must be introduced by the Government to halt an epidemic of problem drinking say doctors again… 

Under the Influence is the latest report from the British Medical Association (BMA) that seeks to highlight the damaging effect of alcohol marketing on young people. It says its’ aim is: 

“to identify effective ways of protecting young people from the influence of alcohol promotion and marketing, thereby redressing the excessively pro-alcohol social norms to which they are exposed”. 

It claims that the £800m the industry spends each year on marketing alcohol serves to normalise alcohol as an essential part of every day life, adding that it is therefore no surprise that young people are drawn to alcohol. 

This isn’t the first time that the BMA has beaten this drum. To date, the Government have stood firm and supported the self regulation of advertising of alcohol that is administered by the Advertising Standards Authority (ASA). In 2007, the Department of Health said: 

“We are also working closely with alcohol drinks industry and non-industry stakeholders on promoting more responsible drinking and preventing alcohol misuse.” 

Earlier this year they said: 

“it’s not always right to legislate,”. 

Do you trust in the ASA’s ability to effectively self regulate? Responsible advertising of alcohol encourages the audience to switch brands not drink harmfully. Industry partnerships with the Government are likely to be far more effective in the fight against the binge culture that we have in Britain with projects like the Campaign for Smarter Drinking. 

Agree or disagree?

Fiona Carter

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

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Travelodge makes formal complaint about Premier Inn's promotional campaign

Wednesday, November 25th, 2009

Travelodge has lodged a formal complaint with the Advertising Standards Authority (ASA) over the £29-a-room Christmas promotional campaign run by its rival Premier Inn.

Travelodge complains that it is “very near impossible” for customers to find rooms on premierinn.com for £29.

The complaint from Travelodge comes at a time when an increasing number of companies are turning to promotions as they continue to attempt to attract more customers in the recession. Many hotel chains have responded to big falls in occupancy by cutting room rates or offering value-for-money promotions. However, there has to be a marketing budget allocated to such promotions to make them viable.

The main winner when it comes to promotions is the customer. Travelodge agrees that the hotel industry must offer great value for the customer; however they say that this must be without the caveats.

Under advertising codes of conduct if companies are unable to supply demand for a promotional offer because of an unexpectedly high response or some other unanticipated factor outside their control, they should are expected to offer substitute products/services.

Is the customer going to be the loser in the end if the ASA uphold this complaint? Companies may be discouraged from running promotions through fear that an offer may go further than the marketing budget that it allocates.

Fiona Carter

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

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Nutrition and Health Claims in TV and Radio Adverts

Monday, November 9th, 2009

Following the revision of the CAP code for non-broadcast advertising in January 2009, last week BCAP revised its television and radio advertising codes in order to comply with the 2006 EC Regulation, which sets out when nutrition and health claims are permitted in advertising. An example of a nutrition claim commonly made on food and drink products would be “low in fat”. An example of a health claim would be “‘helps maintain a healthy heart’”.

Examples of changes (for TV advertising) include that “food product claims that refer to a rate or amount of weight loss are not permitted” and “Advertisements must not suggest that it is necessary for the average person to augment the diet or, unless the claim is authorised by the European Commission, that dietary supplements can enhance normal good physical or mental condition.”

Breaches of the new BCAP Codes could result in complaints being made to the Advertising Standards Agency (ASA). The ASA has the power to recommend that adverts must not be broadcast again without amendment. This can result in the loss of considerable investment in marketing campaigns.

Do you think these changes will do anything to promote consumer confidence in nutrition and health claims made by advertisers?

Fiona Carter

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

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