The truth about the Advertising Standards Authority
The truth about the Advertising Standards Authority (ASA) can actually be found on its own website and on related websites such as those of the Committee of Advertising Practice (CAP) and the Advertising Standards Board of Finance (asbof). But those whose living depends on being allowed a measure of artistic licence in how they promote their goods and services aren’t going to let the truth get in the way of an unbelievably silly smear campaign against the advertising regulator for trying to do its job properly.
The list of gripes they dream up in order to try and discredit the ASA is seemingly endless and, frankly, barmy but I think the main ones are:
For those who can’t or won’t do the research themselves — which includes just about every quacktitioner I’ve seen comment on the subject — here’s the truth about the ASA gleaned from the relevant websites.
The ASA is not an authority
So say countless quacks all over the web. I could only stomach the first dozen or so minutes of this recording posted on youtube, in which ‘naturopathic nutritionist’, Deborah Walker, interviews Barry Tanner, Project Manager at the General Regulatory Council for Complementary Therapies (GRCCT), but in that short time it it is repeated on ad nauseum. Here’s an early example from Tanner:
The Advertising Standards Authority is not an authority. It’s not a governmental agency. It’s a private limited company. It’s not elected. It’s not overseen by a government body.
According to Tanner — and numerous others — the ASA is independent of government, therefore it is not an authority. The implied premise here is that only governmental agencies can be authorities. Says who? Not the government itself, obviously — because if the government didn’t consider the ASA to be an authority, it wouldn’t have a page on its website that gives details of the CAPs, the CAP codes and the ASA, and says this:
The rules are enforced by the Advertising Standards Authority (ASA). Anyone who thinks advertising rules have been broken can complain to the ASA within 3 months of the advert appearing. If an advert breaks the rules, it may be withdrawn. If the product doesn’t match the description or the advert breaks the law, you could be prosecuted.
The ASA is not a government body but it has government endorsement as the authority on advertising rules and as the established means for dealing with advertising complaints. Even OFCOM, which has a statutory duty to maintain standards in relation to broadcast media, has delegated the regulation of most broadcast advertising to the ASA. Without the ASA, there would be no authority specifically tasked with judging complaints against those advertisers who are in breach of industry regulations — which is, perhaps, the very situation certain unscrupulous advertisers and lobbyists for unethical industries want the consumer to be in. Otherwise, why try so hard to undermine it?
Unsurprisingly, the advertising industry has never sought statutory regulation. From the ASA’s history page, we learn that the ASA came about as a result of the recognition by the advertising industry — snake-oil pedlars excepted, of course — that if consumers were expected to trust advertisements, they really needed protection from unscrupulous advertisers.
In response to widespread anger amongst consumers about deceptive marketing and frustration at their powerlessness to do anything about it, the Board of Trade (which was a government body, by the way) set up the Molony Committee on Consumer Protection Committee to review existing legislation and to consider and report what changes in the law or other measures were needed to protect consumers from a range of deceptive practices, including untruthful advertising (Hansard). Reporting in 1962, the Molony Committee argued that this protection could and should be tackled by effectively applied voluntary controls.
Thus, industry representatives came together and formed the Committee of Advertising Practice (CAP), which produced the first edition of the British Code of Advertising Practice and who appointed the Advertising Standards Authority as an independent adjudicator.
By the way, there are now two CAPs, one for broadcasting ads the other for non-broadcasting ads. If you check out the membership of the Committees you’ll see the one thing they have in common is a vested interest in advertising. We entrust people whose living depends on advertising to write the advertising rules, which might sound iffy but here’s the thing: The rules have to accurately reflect UK and EU legislation and they are advised on this by the Office of Fair Trading.
So, thankfully, we UK tax payers do not have to pay for the regulation of advertising. We don’t fund the kind of system that the UK — along with many other countries, including most of Europe — has in place to ensure that those trying to sell us stuff don’t mislead us. No, instead of having a government bureaucracy to deal with complaints against advertisers and ensure that advertising is compliant with the law, the advertising industry is charged with both the task of regulating itself and of funding this self-regulation. Seriously, who would want it any other way? And isn’t this the model that both the Press Complaints Commission and hmmm let me think…oh yes, the GRCCT adopted many years after the ASA did so?
Tanner also whines that no CAM practitioner has agreed or signed up to any of the requirements of the ASA. This is hardly surprising, given that the requirements of the ASA are that adverts be legal, honest and truthful and in compliance with consumer protection laws. Happily for all those CAM practitioners who don’t agree with those requirements, it is only a voluntary levy and they don’t have to pay it, so they’ve really got nothing to cry about on that score.
The ASA is a private limited company
The ASA is constituted as a Company Limited by Guarantee. This means it has no share capital. It was set up by the advertising industry, not to make a profit, but to make sure advertisers stick to rules designed to protect us, the consumers. I’ve no doubt they took legal advice on what the appropriate constitution for that purpose would be. I expect the GRCCT did the same before deciding to apply to become a company without share capital too. Here are a few other companies without share capital:
British Humanist Association
British Sandwich Association
Alliance for Natural Health International
The ASA deliberately gives the impression that it is a government body
This accusation is as common as rats in a sewer, especially since Rob Verkerk of the food supplement industry lobby group and private limited company, the Alliance for Natural Health, jumped in with both feet. He wrote an article for the December issue of WDDTY magazine which, in keeping with the rest of that magazine’s content, is packed with inaccuracies. The piece is eviscerated on the excellent What WDDTY Don’t Tell You website, which asks:
Why does the mouthpiece of the Alliance for Natural Health have such a fixation with a group whose mundane job is to check that advertisements are “legal, decent, honest and truthful”? The answer probably lies in the sheer number of upheld complaints against the SCAM industry in general and WDDTY advertisers in particular.
Indeed, over 50 breaches of the advertising regulations were found after the Nightingale Collaboration complained about a number of different adverts in the first two paper issues of the magazine. But let’s not crow.
The ANH followed up with a piece on their website entitled, The UK’s Advertising Double Standards Authority UK, which asserts that the bias of the ASA is “so blatant as to be laughable”; that the ASA “has gone after natural healthcare practitioners, modalities and products with a vengeance” and that it has “relentlessly attacked them”; that “the ASA does its best to portray itself as a government body, but it’s actually a private, limited company” and that “an organisation tasked with eradicating misleading advertisements is actually mislabelling itself”.
Let’s just remind ourselves of ASA website’s banner headline, which never disappears from view.
If you click on the ‘About us‘ tab on its website, you will find several links telling you everything you could want to know about the ASA. These include a link to its Mission Statement, its Annual Report, its history and its funding. For an organisation that’s allegedly trying to portray itself as something it’s not, it’s giving out rather a lot of information about what it actually is, wouldn’t you say?
Yes, I said it all to the ANH on their facebook page but it seems their facebook page is managed by some nameless bot that hasn’t been programmed to answer questions like, ‘What in particular makes you say that the ASA is trying to portray itself as a government body?’ and ‘Where is the link for your Annual Report please?’
Some of the daftest comments from the inhabitants of Planet Woo even nitpick what the ASA sounds like. Here’s the naturopathic Deborah Walker’s opinion:
It portrays itself in its language to be a government agency.
Really? Take a look at the first letter the ASA sent to homeopaths, the one that caused all the initial hysteria. It uses a standard business English register and the third paragraph begins:
We are independent of both the Government and the advertising industry…
I’ve no reason to think this letter is atypical, so what specifically is the problem with the language the ASA uses?
Dr Alyssa Burns-Hill, who claims to have a PhD* and who has an ASA adjudication against her, has been campaigning hard against the ASA. She has started a petition calling for an investigation of the ASA, in which she whinges:
It has legal sounding processes with no legal basis: rulings, adjudications, sanctions and compliance, implying judicial or statutory authority.
Legal sounding processes? Rulings, adjudications, sanctions, etc…? FFS, it’s a regulator! How are they supposed to regulate without ‘processes’ and ‘rulings’ and ‘sanctions’? How do you describe a formal process such as, say, dealing with a complaint, without it ‘sounding legal’ to someone desperate to find something — anything — that might conceivably discredit the ASA?
I wonder what Burns-Hill would make of the email apparently sent by Barry Tanner’s GRCCT to thousands of CAM practitioners, soliciting their registration. In the email, the GRCCT explains itself thus:
Just as the medical profession is regulated by the General Medical Council (GMC) and the nursing profession is regulated by the Nursing and Midwifery Council (NMC), Chiropractors by the General Chiropractic Council (GCC) and Osteopaths by the General Osteopathic Council (GOC), complementary and alternative therapists can NOW be regulated by the General Regulatory Council for Complementary Therapists (GRCCT).
Except, of course, that all those other regulators were set up as a result of legislation and the GRCCT wasn’t. It’s a voluntary regulator with no authority whatsoever. An old saying about people in glass houses springs to mind.
The ASA doesn’t declare who funds it
So says Deborah Walker. Well, neither does the GRCCT but we’re talking about the ASA here and the GRCCT’s Barry Tanner has this to say:
The levy is voluntarily paid by those who place advertising. Now interestingly, there is no way to ascertain who pays it. It is paid into a third party pot and the ASA withdraw from that pot to fund their services. Not really a very appropriate practice for a body deeming itself the independent regulator. So again another contradiction in terms of action, not really appropriate.
What is Tanner wittering on about here?
Again, from the ASA’s website, we learn that the ASA’s evolution into the body that we know and love today was accelerated in the 1970s after the Minister for Consumer Protection criticised the existing system for not being well-known enough. In response, the industry set up the Advertising Standards Board of Finance (asbof) in 1974 to provide sufficient and secure funding for the system.
From asbof’s website:
Asbof was deliberately constructed as a separate company, to handle the funding of the ASA at arm’s length, thus ensuring the ASA’s operational independence. Under this, advertisers pay a levy of £1 per £1,000 on display advertising in press, magazines, cinema, outdoor, and since August 2004, on internet advertising.
This is included by advertising agencies in their media invoices to their clients, collected by the agencies, and passed over to asbof.
So big advertisers pay into a pot set up for the purpose of funding the ASA, but which is administered by a separate body to ensure the ASA remains neutral and objective and free from advertisers who might seek to influence them. I wonder what Tanner thinks is “inappropriate” and “a contradiction” in this arrangement? What would be a better way of ensuring the ASA is independent? He doesn’t tell us.
As for Walker, does she think advertisers who pay the 0.1% levy, want to give away information about their marketing budgets to their competitors? Honestly!
The ASA isn’t competent to assess scientific matters
Neither are most practitioners of most CAMs but at least the ASA has the grace to be aware of its limitations. As the CAP Exec explains here, in cases where the ASA or CAP is unable to judge whether the evidence supports the advertised claim, the ASA or CAP can seek advice from an expert consultant. A list of some of the experts they use can be viewed on their website. As the expert(s) have thus far assessed scientific matters in such a way as to be detrimental to the business interests of CAM promoters, it is hardly surprising that those same CAM promoters question the competence of the ASA and any expert it might call upon. Gosh, those experts must be devastated at having their competence to assess sciencey stuff questioned by people who market scientifically implausible and unproven treatments for a living.
And I guess they’ll be amazed to know of the same quacks’ plans to make them and the ASA itself redundant. This is from a newsletter sent out to subscribers of the freedom4health website. It’s not online.
We discussed putting together a GROUP COMPLAINT LETTER towards the ASA to the Office of Fair Trading, and making it known that as practitioners we are not happy with how the ASA handles our cases. Additionally we will look into creating a new body to counter the ASA, who will have the experts available to evaluate the practitioner documentation and evidence and be able to provide professional feedback on practitioner advertising.
Jesus wept. What are these people on?
The ASA is biased against alternative and complementary therapists
The ASA acts on complaints against misleading claims in advertisements and, as a high number of misleading claims appear on the websites and in other advertising by “natural health practitioners”, they attract a lot of complaints. But only the most imbecilic of detractors could accuse the ASA of being biased against one sector relative to any other. A cursory examination of resolved cases on the ASA website reveals that a broad cross-section of advertisers fall foul of the regulations, including pharmaceutical companies. Why would the ASA be biased against quacks in particular?
As I’ve mentioned before, the sad losers at the homeopathic group HMC21 wasted two years fighting an ASA adjudication against their false claims about homeopathy and against their attempts to smear the Sense about Science charity and to mislead people about Trick or Treatment. This group accuse the ASA of a multitude of sins, which boil down to a gripe that the complaint against their advertisement was treated the same as a complaint about a misleading advert about any other healthcare treatment would be. The ASA took advice from an expert and guided by that advice, they upheld most parts of the complaint.
A small snippet from a long adjudication:
We noted that proponents of the homeopathic approach often objected to conventional medicine’s focus on RCTs as the gold standard for assessing efficacy, and instead they favoured other forms of measurement in their assessment, such as patient self-analysis and outcome studies. Nevertheless, we continued to expect claims that a particular medicine or approach could be used to treat medical conditions, be substantiated with a robust body of evidence, consisting of RCTs conducted on human subjects, where appropriate. We did not consider the alternatives put forward, such as patient self-analysis or outcome studies alone to be suitably robust to support efficacy.
This quote is the key to the only real issue that the critics have with the ASA, namely that the ASA requires a robust body of evidence to support claims that a particular product or therapy can treat specific medical conditions. The ASA did not dream up the hierarchy of evidence that places RCTs near the top and anecdotes at the bottom but, as there is broad agreement amongst medical scientists on the relative strengths of these different kinds of studies and as the only people who fundamentally disagree with them are those with a vested interest in promoting treatments that do not meet these widely-accepted evidential standards, the ASA really has no alternative than to be guided by it. If they, or the Committee of Advertising Practice were to relax their standards and change the Codes, their public credibility would take a nosedive and they would come under relentless pressure until they tightened them up again.
I sense that so-called natural health practitioners and vitamin pill lobbyists don’t much like the ASA but the allegations they make about the advertising regulator don’t stand up to a nanosecond’s scrutiny and some are staggeringly hypocritical, given where they’re coming from. In spite of occasional signs of mutiny, the current system has continued to hold on to the support of major advertisers. More importantly in the circumstances, its continued recognition and endorsement by government is attributable to the fact that, over several decades now, the system has worked well enough. As far as I know, only the quackery sector have sought to bring it down and replace with something that will somehow let them continue to get away with misleading consumers and they’re on a hiding to nothing with that one.
*Edited 4.10.16 to add link.