Standards Bearer

Stricter advertising laws for alcoholic drinks means a single grumble about the content of an ad could result in it being banned. Patrick Schmitt finds out more about the rule makers and rule breakers

Just one complaint. That’s all it takes for the Advertising Standards Authority (ASA) to investigate anything promotional appearing in public. Whether it’s from a pensioner in Preston or a cut-throat competitor, it doesn’t matter, the ASA will look into the objection.

“Unlike the legal system where you are innocent until proven guilty, it is not up to the person complaining or the ASA to prove that the advertiser is wrong – it’s up to the advertiser to prove they are in the right,” says Claire Forbes, director of communications at the ASA.

But while all industries are equally open to scrutiny, for alcoholic drinks, the likelihood that a complaint will turn into an outright ban has just increased, because the rules for advertising booze have become stricter. (See the drinks business, February, for news of the Young’s case, and March for further analysis.)

Taking control
The ASA, however, has no legal powers. It is, in fact, a self-regulatory body and, until November 2004, was for non-broadcast advertising only. It was initiated in 1962 in response to the government’s decision to introduce statutory legislation to control the content of TV advertising in the 1950s. As Forbes says, “The advertising industry did a deal with the government, saying, ‘You want control of TV advertising, but we want control of non-broadcast advertising’, and the government of the time agreed to that.”

Non-broadcast includes press, poster, direct mail, cinema, commercial e-mails, sms texts and magazine advertising, and the content of these are judged according to an industry code of practice – the Committee of Advertising Practice (CAP) code – now in its 11th edition. On this committee are representatives from “all the big advertising trade associations, advertising agencies and media owners that publish advertisements, owners of billboard sites, newspapers, the Royal Mail and magazine publishers”.

So, while the ASA has no legal powers, if an advertiser does break the rules, and fails to change the nature of its advert, then those on the committee will refuse to publish advertisements from the offending company. “If you don’t cooperate, you will findit difficult to place your advertisements,” says Forbes.

As for the historical split between broadcast and non-broadcast, in November 2004, Ofcom, the government’s communications regulatory organisation, asked the ASA to take over responsibility for TV and radio advertising, “but on a contracted-out basis”. This has meant taking on Ofcom staff and moving to new offices in Holborn.

Playing by the rules
But if the advertisers themselves are the ones regulating the content of the promotional material, why breach the very code they have drawn up?

Forbes pauses when this question is put, pointing out that, “The main purpose of the ASA is to protect consumers from advertising that’s harmful, misleading or offensive.” She adds, “To create a level playing field for business we make sure all advertisers are playing by the same rules, because that’s important for healthy competition. As to why advertisers break their own rules, well, there are about 30 million different advertisements published in the UK annually and last year we had 26,000 complaints. Of those, something between 2,000 and 3,000 were upheld – the advertisements actually had to be changed because they broke the rules. So out of 30m ads that’s a very small proportion, and we would argue that it is the responsibility and commitment advertisers have to the regulatory system that keeps that figure so low.”

As for those complaints, where do they come from and how do they translate into a ruling on the content of advertising? Apparently 90% of them come from the public, leaving 10% from companies complaining about competitors’ advertising.

Three-quarters of objections are about what Forbes calls “misleadingness” in advertising. “Once we receive a complaint – via the website, or by telephone – we assess whether we can deal with it within ASA. If so, we get in touch with the advertiser. Because we are a self-regulating business, we try to operate by persuasion and consensus. Say we’ve had a complaint that the small print is ambiguous, or misleading and the advertiser holds their hands up and agrees to change it, then we are content with that. If the advertiser disagrees, then we will launch a formal investigation and the advertiser has to send us written evidence to substantiate the claims being made in their advertisements. For example, if it was a health claim – something is low in sugar or fat – then send us documentary proof. We then take the complaint and evidence to the council, which acts as our jury.”

That council contains 15 people (named on the ASA website) two-thirds of whom are members of the public from a range of different professions – “a head teacher; someone who runs a charity; a vicar; a lawyer” – and one-third who have experience of the advertising industry, but don’t represent their own companies, for instance, Jean Coussins, chief executive of the Portman Group. (The Portman Group has traditionally had different powers to the ASA, covering not just advertising but wider issues such as packaging). “There is some overlap and we do liaise with them, but we each have different functions,” says Forbes. However, it has just been announced that the Portman Group will shrink and be largely replaced by a campaigning charity (see marketing news, p.66).

Lodging complaints
For the alcoholic drinks sector specifically, the number of complaints is relatively low. According to Forbes, it is the leisure industry that receives the most complaints, followed by computer and telecoms, health and beauty and holidays and travel, which together account for more than half of all complaints that the ASA handles.

Of the 23 sectors listed by the organisation, alcohol sits at number 18 in the charts (ranked according to number of complaints) with 144 objections recorded in 2004. That was down 37% on the previous year.

Which begs the question, why make the rules for advertising in this sector stricter? “The new rules for advertising alcohol are not a result of the numbers of complaints,” responds Forbes.  “They come from the government’s Alcohol Harm Reduction Strategy and, in particular, the concern about alcohol advertising and its appeal to young people.”

Furthermore, as noted earlier, 75% of complaints are about the misleading nature of advertising, and “alcohol advertising doesn’t tend to be misleading,” she says.

Responsible advertising
For broadcast advertising in particular, all adverts have to be pre-cleared, which does make it less likely that a TV or radio ad will breach the guidelines. And it’s important to add that it is only the rules for TV advertising which have changed – those for radio have remained the same. While non-broadcast advertisements do not have to be checked before publication, the ASA does offer a pre-clearance service.

And the ASA “will and has challenged alcohol advertisements on issues where we feel they may break rules, irrespective of whether the public has complained. That’s where we feel there is a social responsibility issue or potential for harm. We wouldn’t make a challenge on grounds of offence; if nobody has complained about it then it’s unlikely to be causing offence.”

Interestingly, the recently banned  Disaronno liqueur advertisement shown in cinemas (deemed non-broadcast) entitled Pass the Pleasure was checked by the ASA before being aired. “Disaronno was advised not to run the ad, ignored that advice and the advertisement was banned. There was one complaint after it was shown on the grounds it was irresponsible because it linked sex with alcohol. If Disaronno had taken our advice the company would have saved itself a lot of money.”

You can still view the advertisement on Disaronno’s website (www.disaronno.com) because the ASA’s remit “does not extend to cover website-based advertising unless it is in paid-for space”.

Broad changes
The alcohol industry should not feel too victimised, however. Even though one does wonder whether the tightening of the rules on advertising is just another step towards an outright ban on alcoholic drinks advertising, Forbes makes the point that alcoholic drinks is not the only sector under the spotlight.

“We are seeing increasing public policy concern in all sorts of areas – alcohol is one of them, another is food and there are going to be a lot of changes to food advertising in the next year – and that comes from the government health White Paper. The government has stated it wants to see changes to food advertising rules by 2007 and the concern is about food advertising aimed at children.”

This will, of course, restrict drinks of the non-alcoholic sort, too. The food and drink industry will now have to be more vigilant than ever in how it portrays its products.

Guidelines
Following a suggestion by the government’s Alcohol Harm Reduction Strategy in March 2004, Ofcom reviewed TV alcohol advertising rules. Revised rules came into force on January 1, 2005, with a grace period until September.

The advertising industry has set guidelines on how to interpret rules and changed the non-broadcast rules for alcohol advertising. View them on www.asa.org.uk

For broadcast and non-broadcast advertising, alcohol companies must avoid anything with strong appeal to under-18s (rules have been strengthened “on things like sexual success, being brave or daring” says Forbes). Alcohol can’t be handled irresponsibly in ads (not “splashed around or served in huge measures”). Ads also can’t show someone buying a round of drinks, which would imply everyone in a group buying a round – an “unwise” style of drinking.

Forbes emphasises, “There is a big drive by the European Commission to look at alcohol advertising, so this isn’t just something driven by the UK.”

For details on recent cases, see www.asa.org.uk/asa/ adjudications/

 db  April 2006