For marketers and brands everywhere, regulation is a crucial consideration in any action they take. For consumers, regulations is what they have to trust to protect them from advertising. In advertising, the standards and compliance are set by CAP and monitored by the ASA. With so many channels and considerations, it can be intimidating to take on.
Unlike in the USA, the UK’s industries are governed most prominently by the ASA and CAP as opposed to federal governance. Whilst the UK does have advertising laws in place, the ASA is the most active regulatory body to keep UK advertising compliant. However, when the Committee of Advertising Practice (CAP), formed by industries, advertisers and, media in the UK, produced the 1st edition of the British Code of Advertising Practice, the case for a “Federal Trade Commission” style regulatory body was rejected.
Remaining alert and questioning how major authoritative systems and regulatory bodies like the ASA and CAP codes work is critical in ensuring that outcomes are, and will continue to remain, fair.
When an authority fails you, whether it’s an isolated disagreement or how it systematically operates, it’s difficult to trust that there will be a fair outcome. People will lose trust and become disillusioned by the “authority” that institutes and governing bodies have. So what makes the ASA trustworthy?
It’s hard to trust the ASA when you don’t know how it operates, who funds it, and how it regulates. So how do they do it? In this article, our insights team will cover what the ASA does to ensure their rulings and judgements are fair, all the while avoiding and managing conflicts of interest, alongside other helpful information for consumers.
One major point of suspicion for consumers regarding authoritative bodies is their funding. Historically, “donations” have been leveraged as bribery for institutions in decision-making processes, which is why understanding how a party funds itself is critical in understanding their incentives and biases.
The ASA are funded through multiple avenues, generating some income independently through “seminars and premium industry advice services.” But primarily, through an “arms-length levy” that was developed in 1974 through the Advertising Standards Board of Finance (ASBOF). In short, it’s a voluntary levy – a charge on the cost of advertising space, which is at 0.1% and 0.2% on some direct mail. This measure ensures that the ASA is well-funded to maintain its advertising authority. Although 0.1% doesn’t seem like substantial enough amount to fund one of the only regulatory bodies on advertising in the UK, if we consider that in 2022, 34.77 billion pounds was spent on advertising (with the figure for advertising expenditure growing each year), it becomes apparent that the fraction that funds the ASA is significant enough to continue operations.
Another factor we must consider is that staff members of the ASA are not without their own biases and interests. How does the ASA prevent these conflicts of interest? According to a document on the ASA’s website, through a register of interests. Members of the ASA must fill out a form to report their financial and non-financial interests. Members who have a significant interest in an outcome where their votes have an impact must declare as such and not take part in said vote or discussion.
In the ASA and CAP’s annual report, they also disclose their plans and actions regarding current and changing regulations in several areas of advertising. Those that were mentioned in the 2022 report were: data science, cryptocurrency and NFTs, ‘greenwashing’, non-compliant influencers, age-restricted ads, and working with platforms and other online intermediaries.
In the report, they go on to share their objectives for the year, KPIs, and break down the cases and complaints they’ve resolved in relative detail. As well as many more reports, including a financial report which showed that in 2022, with just the levy, the ASA & CAP saw an income of £8,847,000.
If you wish to read the reports in their entirety, you can find them here.
However, consumers should remain vigilant. Biases are natural - and with the nature of media and marketing, personal experiences will impact how someone may percieve or react to ads and campaigns. Unconscious biases will shape the decision-making process; the ASA is not immune to this.
Let’s say you’ve seen something that breaks the advertising codes, you feel this is unjust, and decide to report it to the ASA. Thankfully, the process is straightforward.
The ASA needs information about the ad to properly review a complaint, which is why information about where or when an ad appeared, screenshots, and photos allows the ASA enough detail to look at or locate the ad. If you’re unable to provide enough evidence, the ASA may not be able to assess your complaint.
So what can you expect after filing your complaint? You’ll receive a complaint reference number and the name of the person handling your case. The party who filed the complaint will never have their name disclosed to the advertiser unless it’s being made on behalf of a company or is strictly relevant to the case.
It should be known that just because a piece of advertising is highly complained about, it doesn’t necessarily mean the complaint will be upheld by the ASA. For example, not a single ruling against the companies featured in the ASA’s news article “Top 10 most complained about ads from 2017” was upheld, even though some received hundreds of complaints.
A recent email promotion held by Prettylittlething.com Ltd t/a Prettylittlething.com had a single complaint (as of October 2023) against them, and the ASA upheld this complaint. The complainant had tried to use a discount code provided to them via an email promotion, but was unable to redeem it due to IT issues from the side of Prettylittlething.com. After seeking the customer service teams, the complainant was still unable to redeem the promotion. The promotion was challenged for not being administered fairly, and the ASA upheld and warned Prettylittlething.com to ensure they abided by CAP Code 8.2 and that the ad must not occur again in the form as complained.
Promoters and brands will find that section 8 of the CAP Code will provide the most relevant and helpful information when it comes to running a promotion or a competition.
Let’s say the complaint you filed was assessed and upheld by the ASA – what's next? Well, this part will depend on the advertiser. So let’s get more specific: what sanctions can advertisers expect? Especially when advertisers are unwilling to comply and are resistant even after the ASA offers follow-up advice, if they’re repeat offenders of breaking the same code consistently, they can expect harsher outcomes.
The power of the ASA’s sanctions lies in their capability to shame and protect consumers from untrustworthy advertisers. With strong SEO and reputation, they can make sure non-compliance from advertisers does not go unnoticed online. With dedicated sections, paid and on-platform targeted ads, and collaborating with social media companies to bring attention to these problematic advertisers and minimise the harm of non-compliant advertising by removing them entirely from social media platforms or redirecting viewers where possible.
In offline channels, sanctions are mostly coordinated by CAP, where members are trade associations that represent advertisers, agencies, and media, which means industry repercussions for non-compliant advertisers may impede their ability to continue trading effectively. CAP can ask its members to temporarily withhold trading privileges that would allow businesses to run promotions at a relatively fair price or with relative ease. For example, bulk mail discounts can be withdrawn, making direct marketing much more expensive; mandatory pre-vetting may be enforced on those who’ve repeatedly broken social responsibility and decency codes; ads which break codes may also be disqualified from industry awards, which prevents the opportunity for them to showcase work which may have opened more opportunities for them.
If codes are still continuously broken by advertisers, these cases may be referred to other enforcement measures, such as the National Trading Standards.
If you feel that the ASA has made a poor judgment, there are a few things you can do.
One option is an Independent Review, where you can complain about a singular council decision. Although this process is open to advertisers and complainants who’ve been an involved party in an ASA ruling or a council decision not to further investigate a complaint beyond the initial assessment, there are a few other requirements you must meet before filing for one.
After studying relevant terms of reference with care, parties should get a request signed appropriately (i.e. the Chairman, Chief Executive or equivalent officeholder) and submitted to:
The Independent Reviewer
12 Henrietta Street,
London
WC2E 8LH
Or alternatively, through email at [email protected]. You must also ensure that all communications and dealings with the independent reviewer are in writing.
However, if your complaint is not eligible for an independent review, you could get in contact with the ASA through the form on their page, which can be found here.
Unfortunately, there are quite a few areas that the ASA and CAP don’t cover to maintain focus and specialisation. Fortunately, many authorities can help resolve consumer issues that the ASA and CAP don’t cover, such as:
Making sure that your promotions, competitions, and campaigns are on the right track in terms of regulation can be an intimidating task. Speak to an expert to see how PromoNow can ensure your promotions are meeting the ASA standards and regulations. Run your promotions without worry and with full control.
To find out how your brand can run promotional campaigns with PromoNow's end-to-end platform, where complaince is built-in, speak to one of our experts at no cost. Consider using the PromoNow platform. Speak with a platform consultant at +44 (0)20 380 555 38 or email [email protected] to learn more.
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