'Not fit for purpose': Legal expert argues ASA is failing the industry

In 1961, British agencies, media and advertisers came together to form the Committee of Advertising Practice (CAP), a new self-regulatory code which advertisers must follow in the public interest. Shortly after, the ASA was put in place to supervise this new system. 

But Mark Tallon, chief executive officer at the European food law consultancy Legal Foods, argues this independent authority is “not fit for purpose”.

“They are not a statutory regulator so they have no powers in terms of taking a company to court or issuing an improvement notice," he explains, “the only way they work is by causing brand damage by issuing a ruling on their website.

“And because they aren't a regulator there’s nothing forcing them to act if they’re made aware of non-compliance.”

This autonomy, he argues, is where the system falls short.

He points out that on the ASA website it says, "we will contact the advertiser whenever a complaint indicates that an ad might have broken the rules, but may not start a formal investigation into every case".

Yet it has a competitor complaint procedure​ which stipulates that it "will not act until we’re satisfied that you’ve attempted to resolve the complaint with the advertiser. The aim is for disputes to be resolved in a fair and prompt way, in the spirit of fair competition and with the minimum of formality and cost..."

Dr Tallon explains: “So if we provide the ASA with a complaint on behalf of a client they won't act on that. They want us to send a recorded letter to that company, listing all the legislation they are contravening and asking them to remove the offending claims.”

The ASA stipulates: "You should allow five working days for a response. If, at the end of that period, the advertiser has not responded or you have other reasonable cause to believe that the advertiser will not act within a reasonable timeframe or in good faith in response to your complaint or you cannot reach an agreement, then the ASA may be able to intervene if you contact us. We will expect you to demonstrate that you’ve tried to resolve this directly." 

Dr Tallon argues no company will do this as it is time consuming, likely to lead to bad blood, and, most importantly, it should not be their responsibility.

“No business is there to be the regulator and no business is going to do that.”

“If the ASA was a trading standards body with the same information there would be a statutory requirement for them to act."

He argues this procedure has stopped the industry from helping to ensure the removal of unlawful health claims.

“The remit of the ASA is to make sure there’s a fair market. Surely if anyone is going to know about what’s compliant it’s going to be businesses and legal professionals like myself.

“I’ve spent the last 20 years working in this field making sure things are compliant, so I’m perfectly placed to inform them of wrong-doing.

“Whereas a member of the public might contact them and say ‘I’ve seen this ad that says this and it doesn’t seem quite right to me’, it’s going to be much quicker to deal with a complaint that comes from me as I'll provide them with exactly the legislation that has been contravened. I do all the work for them!

“If they want to make it a level playing field then why wouldn’t you want to encourage our help?”

Dr Tallon suggests a better system would be one similar to that used by ESSNA. Their website provides a simple form that allows anyone to anonymously make the authority aware of wrong-doing.

He argues the form system not only encourages people to get in touch when they see problems but it also makes it easier for the organisation to work through the complaints.

Responding to the complaints, the ASA told NutraIngredients: "Our Inter-party Resolutions framework was developed to ensure that we were aligned with better regulation principles designed by Government. They ensure that our regulation is targeted and proportionate and in this case this means that businesses are first given an opportunity to deal with their matter informally before formal regulation kicks in.

"Inter-party resolutions allow the ASA to focus our resources on high priority issues which may have a greater impact on consumers, particularly vulnerable groups. And they also encourage issues to be resolved quickly between parties, avoiding costly or time-consuming arguments."