Brinsley Dresden recently held one of his regular and very popular “fireside chats” with Guy Parker, CEO of the ASA. Alongside some football-related banter (which was relevant to the discussion), Brinsley and Guy discussed various hot topics and priorities for the ASA.
How does the ASA decide what complaints and adverts to investigate?
The ASA has various means of resolving complaints and concerns - it may decide to take no further action, deal with the issue informally with the advertiser, or carry out a formal investigation. This question arose in the context of the M&S Christmas ad, which depicted hats being burnt and might lead to people emulating dangerous practices. The ASA took no further action on this ad, and Guy said that action does not depend on the number of complaints but the level of concern about the ad. There are often complaints about taste and decency which are not pursued, but complaints about misleading advertising are usually more problematic and more likely to lead to further action.
ASA five year strategy
The ASA recently published its five year strategy with the twin priorities of being proactive and protecting vulnerable consumers. It has two key strands - the use of AI and collective ad regulation, working with industry, platforms and intermediaries, and other regulators.
The ASA's use of AI is allowing it to find larger numbers of ads that might be problematic and then have them reviewed by a (human) compliance officer to see if they need further action. Guy mentioned various areas where the consumer detriment is highest, such as vaping. Although vaping ads are largely illegal, they appear regularly in ads targeted at teenagers and promote environmentally-damaging disposable vapes, which are doubly problematic.
Other high priority areas include cosmetic surgery tourism; scam ads; ads for fertility clinics which over promise and under deliver (pun intended); crypto-currency ads (although responsibility for these has now moved to the Financial Conduct Authority); ads for mini heaters, which are expensive to run and therefore a cost-of-living crisis issue for vulnerable consumers; cask whisky ads (Brinsley noted that these were perhaps a little niche, but Guy said not, although no conclusions should be drawn about either of their drinking habits or investment priorities); tax repayment schemes; and subscription traps and drip pricing (which are also a focus of the Competition and Markets Authority).
Another discussion arose with regard to advertisers based overseas, particularly when the ASA is using AI to uncover ads and then relying on their Intermediary and Platform Principles (IPP) to take action against them. The decision against Air France, which was published this week, was a case in point, with the advertiser failing to engage with the ASA, although Guy pointed out that Etihad had engaged with the process and withdrawn their ad immediately. Brinsley asked whether the ASA engages also coordinates works with other regulators overseas, which it does.
Undisclosed influencer ads
Despite the ASA's best efforts, some influencers are still not disclosing when their posts are ads. The ASA is working on a more systemic solution with platforms and says the influencer market is still rapidly growing. With that in mind, although there are still a lot of upheld complaints, the situation is improving. A question was also raised about influencers promoting their own services - Guy said as long as it was clear that it was an ad, it was probably fine.
Online advertising task force
A question was asked about the Online Advertising Programme and the ASA's role within it. Guy talked about the IPP pilot, where it has been working with platforms and intermediaries. The IPP is wide-ranging and deals with all ads, whereas the OAP focuses on scam ads and ads for age-restricted products. There is unlikely to be legislation before the next General Election but there is cross-party support for the programme. Guy pointed out that legislation takes a long time and the IPP is quicker.
Guy and Brinsley discussed the various rulings arising out of the change in the guidance to say that gambling ads should not have strong appeal to children (previously it was “particular” appeal). Brinsley asked about the seeming inconsistencies between the complaints about the depiction of Peter Crouch and Micah Richards in gambling ads, which were not upheld, and the complaints about Gary Neville, which was. A discussion followed about why the ASA had considered that Gary Neville would stronger appeal to the under 18s and the fact that in absolute terms, he has a strong social media following of the under 18s. Brinsley made the point that just because you follow someone doesn't mean that you are highly engaged, but Guy said there was anecdotal evidence that Gary Neville does benefit from high engagement. Guy acknowledged that this matter is subject to an on-going Independent Review, so the situation may yet change in due course.
The next topic to be discussed was greenwashing, and in particular the recent decisions involving Toyota and various airlines. Brinsley asked if it was even possible for airlines to make “green” claims these days - Guy said it was, but marketers could not be broad brush. He said that it was simply not possible to say that you could travel sustainably by aeroplane and if you were an airline you could not claim to be committed to, or be an advocate for, the environment. Generally speaking, nobody can claim to be good for the planet.
Guy said that the bigger and bolder the claim, the more likely the public are to think that you are greenwashing and therefore it is not sensible marketing. Consumer behaviour needs to change in relation to climate change. Advertising can help with that and the ASA does not want businesses to ‘greenhush’. Precise claims with robust substantiation are the way to go, and the challenge is to do that in a compelling way. Guy also pointed to the fact that the ASA does not always uphold complaints about greenwashing and mentioned ads by Land Rover and Sainsburys (the latter saying that eating pulses etc was better than eating meat).
Funding ad regulation
Guy also said that he does not think that the ASA needs more sanctions, such as powers to impose fines, but its long-term funding needs to be considered. More and more advertising revenue is moving online, but the ASA's funding model mainly depends on offline revenues.
At the end of the talk Guy suggested that everyone should sign up for ASA newsletters.
We would naturally urge you to sign up for our Adlaw blog (if you came to this via LinkedIn), or the Adlaw newsletter which is a monthly round up of the blog, and Ads and Brands Law Digest, which is particularly directed at in-house counsel.