On Thursday 11 November CMS London was pleased to host a Q&A with Guy Parker, Chief Executive of the Advertising Standards Authority. In a wide-ranging and frank discussion with Tom Scourfield, IP partner and co-head of the UK Consumer Products group, Guy discussed how the ASA has handled a difficult year, and gave insights into its priorities for 2021 and beyond. Among the many topics discussed were:
Climate change and sustainability
Advertising of high fat, salt and sugar (HFSS) foods
Gender, racial and ethnic stereotyping
Online regulation, online harms and online advertising
Review of the competitor disputes process
Formation of a pricing expert group
Advertising of medical devices
Impact of Brexit on the ASA’s role
Use of experts, and how to respond to expert submissions as a party to an ASA complaint
Climate change and “green” advertising claims
Following a pause due to the pandemic, the ASA has resumed its project on climate change, which is a top priority. The ASA is exploring what more it can do to contribute to efforts to alleviate and mitigate some of the threats to the planet caused by human activity. Guy expects that, in ten years’ time, there will inevitably be more constraints in and around advertising as a result of the climate change emergency. He also referred to the CMA’s current review of “green” advertising claims. The CMA has launched an eco-friendly initiative as part of a broader multi-country initiative, on which the ASA plans to work closely with the CMA. Advertisers can expect “green claims” to come under greater scrutiny in the short term, and in the long term, they may need to prepare themselves for a more restrictive advertising regime.
HFSS foods and potential ad bans
Guy discussed the ASA’s focus on HFSS advertising, and the questions being raised around the government’s latest proposals, which include a ban on TV advertising after a 9pm watershed, and a complete ban online. Discussing the need for proportionate regulation, Guy expressed his view that obesity in the UK is a major problem which justifies erring on the side of more restrictions, not less. There is already heavy lobbying in relation to these proposals, and the ASA will no doubt be an influential voice in relation to the eventual rules.
Advertising of prices
Guy and Tom discussed the shift in the last few years to greater flexibility on the establishment of prices, which Guy regards as a more “value-based” approach, rather than more rigid rules such as a minimum 28-day period for price establishment. He noted that while advertisers inevitably want certainty, the ASA is not prepared to set its own rules on this point. Guy also discussed the ASA’s intention to set up a pricing expert group, with representatives from regulators and business groups, to establish some rules of thumb. Advertisers who make price claims should look out for this and be prepared to adapt their practice.
With regard to the ASA’s use of experts, Guy gave insights which will be valuable to advertisers in technical fields such as medicines, cosmetics and technology. His strong message was that the ASA is more receptive to criticism of expert opinions based on the content of their reports, rather than on their credentials. Advertisers who wish to challenge an ASA expert’s view will want to take these comments into account.
The ASA’s role after the end of the Brexit transition period
Guy also discussed the ASA’s role following the end of the Brexit transition period. In his view, there will be a limited effect on the ASA in the short-to-medium term, given that approximately 75% of their time is spent handling misleading advertising and inappropriate targeting, the rules for which reflect UK law and will therefore not change immediately at the end of the transition period. In the longer term, there may well be divergence of UK law from that of the EU, though as there are relatively few court decisions on misleading advertising, that may take some years to emerge.
Comparative advertising, verifiability and qualification of claims
An audience member raised a question on a practice they have noticed, in which advertisers providing a weblink for the verifying information that must be included in comparative advertisements were also hiving off important qualifying information, necessary to understand a headline claim, into the website. While noting that having an example of that kind of ad would have been illuminating, Guy gave a view that, in principle, providing qualifications to a headline claim on a website is not an adequate substitute for including supers or other text in the ad itself.
Other ASA projects
Guy also touched on a number of other projects underway at the ASA, including gender, racial and ethnic stereotyping; the creation of a pricing expert group; and a competitor complaints review. Guy highlighted the importance of the ASA’s continued interaction with other regulators, especially with regard to many of these new projects.
If you’d like to catch up with the discussion, the webcast can be viewed here.