In what is a highly unusual volte-face, an advertiser has succeeded in turning the tables on the Advertising Standards Authority.
Following Independent Review published at the start of this August, the ASA Council has reversed its previous decision against Oak Furniture Land concerning claims that its products contained ‘no veneer’ and were made of ‘100% solid hardwood’. However, justice delayed is justice denied, and it is worrying that it has taken so long for common sense to prevail. It also required Oak Furniture Land to make a substantial investment in time and money to reach a resolve a compliant that barely merited investigation under the ASA’s prioritisation principles.
Oak Furniture Land submitted a very thorough response to the original complaint, so there was no element of the “contributory negligence” by an advertiser who responds in haste and must then repent at leisure on receipt of an adverse adjudication.
There is also a concern that the ASA’s reasoned criticisms about one plank of Oak Furniture Land’s response, being market research evidence, may have been allowed to over shadow simple common sense, as well as the weight of the rest of their evidence, which was ultimately found to be compelling, but only after a lengthy delay caused by the Independent Review process.
The original adjudication
On 19 October 2016, the ASA upheld a solitary complaint challenging Oak Furniture Land’s advertising. In doing so, they prevented Oak Furniture Land from stating or implying that its products had ‘no veneer’ or were made from ‘solid hardwood’ if its products were manufactured using the ‘oak wrap’ technique. Lewis Silkin, acting on behalf of Oak Furniture Land, had argued that a veneer involves using a thin piece of superior wood around an inferior core of chipboard or MDF. The ‘oak wrap’ technique, on the other hand, involves using a relatively thin sheet of oak to surround material of the same quality as the outer wrap, being several lengths of solid oak fixed together to form the legs of certain dining tables. The technique is used for aesthetic and practical purposes. Other retailers, by contrast, use a veneer around MDF or other inferior materials to save money and/or weight.
The original decision damaged Oak Furniture Land’s brand by chipping away at its customers’ trust in its products, undermining the “no veneer in ‘ere” strapline that goes to the heart of Oak Furniture Land’s marketing strategy. Despite Oak Furniture Land’s protestations, including representations to the Council alongside the Executive’s Draft Recommendation, the ASA upheld the complaint, albeit only on a majority vote. Council concluded that the use of the oak wrap technique rendered the “no veneer” and “solid hardwood” claims misleading.
Oak Furniture Land was understandably “baffled and surprised by the ASA’s adjudication” and “vigorously” stood by its claims. Holding firm, and because Jason Bannister (MD & founder of Oak Furniture Land) was adamant the ASA had “misinterpreted age-old definitions of firstly, what is classed as solid and secondly, what is classed as a veneer”, Oak Furniture Land submitted a request to the Independent Reviewer for the ASA Council to reconsider the decision. After months of correspondence with the Independent Reviewer, the ASA Council reconsidered the matter and concluded it should reverse its decision, some 10 months after the original decision (and 15 months since that one single complaint was made).
‘No veneer’ claim
Oak Furniture Land argued the claim ‘no veneer’ was based on a “historical industry-wide application of the term” and that customers would understand the term ‘no veneer’ to mean products which did not contain “a thin layer of hardwood surrounding a cheaper or less desirable material such as chipboard or medium density fibreboard (MDF).”
After the Independent Review process had run its course, the ASA Council changed its original view and sided with Oak Furniture Land, concluding that ‘veneer’ had a “more common meaning to the average consumer" and would be considered to be "an outer layer of wood that covered an inner base material such as MDF or plywood.”
‘100% solid hardwood’ claim
Oak Furniture Land had also argued that the average consumer would understand furniture being described as ‘100% solid hardwood’ to be made from “multiple pieces of solid hardwood that were joined together using manufacturing techniques such as gluing.” They stated that when the average consumer sees the “100% solid hardwood” claim, he would not believe that the furniture was “whittled down from a single piece of hardwood.”
Once again, following the Independent Review, the ASA focussed on the everyday meaning of the expression ‘solid hardwood’, being the absence of cheaper material within the construction. Whilst the ASA noted that some consumers would see the “numerous small segments of wood to be inconsistent with the claim ‘100% solid hardwood’ and ‘solid hardwood’”, they moved away from their original, more literal, approach to the claim and stated that the average consumer would think the claim was referring to "wooden furniture that did not contain a cheaper material such as MDF or plywood.”
A sapling technique
The ASA acknowledged that the oak-wrap technique was only used on the legs of Oak Furniture Land’s dining tables (accounting for 2.77% of its total stock of furniture) and decided “the oak wrap construction of the table legs was unlikely to be a material factor to consumers' transactional decision”.
The ASA therefore decided that Oak Furniture Land’s claims made on TV, YouTube and on its website were not misleading “because none of Oak Furniture Land’s furniture contained any cheaper material such as MDF or plywood” and conceded that the claims “no veneer in ‘ere”, “100% solid hardwood” and “solid hardwood” were “unlikely to mislead the average consumer into taking a transactional decision that they otherwise would not have taken.”
The ASA’s rare change of tune
The ASA’s complete volte-face is highly unusual which must go against the grain. Unfortunately, it has also come at a considerable cost to Oak Furniture Land, who attempted to seek an injunction to prevent the publication of the original ruling pending the outcome of the Independent Review, and a judicial review of the decision not to grant such a delay. Although it failed in those attempts, it has after great lengths succeeded in convincing the ASA to see the wood from the trees.
The ASA’s original ruling also highlighted the literal approach the ASA sometimes takes to advertising regulation. However, advertisers will be reassured by the knowledge that the revised ruling fell in line with Jason Bannister’s hope (in response to the original ruling) that “common sense will prevail", and fortunately (on this occasion) it has.
Is this the season for root and branch reform?
In spring this year, the ASA published Dame Janet Paraskeva’s Independent Audit of the ASA’s Commitment to Good Regulation. Fortunately, in this electronic age, publication did not entail the destruction of a large number of trees, because in truth, Dame Janet’s report was not accompanied by much fanfare and does not seem to have provoked much comment.
Perhaps that is because by and large, she seems largely uncritical of the ASA; and with good reason. The one aspect of the ASA’s regime that does seem to have generated some substantive ideas for reform is the Independent Review system.
The audit suggests clarifying that there are 3 possible grounds for complaint: new evidence; a substantial flaw in process; or a substantial flaw in the Council’s decision. It also suggests that in order to preserve the ‘independence’ of the ‘Independent Review’, the chairs of the ASA and of the Advertising Standards Board of Finance (ASBOF), the body that controls the funding of the ASA, should no longer act as assessors, assisting the Independent Reviewer. Dame Janet also suggests that the ASA should publish an annual review of its Independent Reviews.
More interesting is the suggestion the ASA should conduct a review of good practice in independent review and appeal processes in other UK regulators and in advertising regulators in other countries and consider improvements it might make. Elsewhere in the report she states that the business representatives that she interviewed bemoaned the absence of an opportunity to make oral submissions.
When the ASA conducted a procedural review a few years ago, we suggested a system that borrowed some of the best features of the procedures used by the National Advertising Division of the Better Business Bureau in the United States of America, known as the NAD. Unfortunately, our views did not find favour.
Since then, we have also had the opportunity to experience the Dutch Advertising Self-Regulatory system, collaborating with our colleagues from the Global Advertising Lawyers Alliance in The Netherlands to bring a successful complaint for Garmin against advertising by TomTom. That system includes an oral hearing, giving both parties to the dispute an opportunity to state their case direct to the adjudicating panel, and to face questions from the panel about their submissions. The result was a relatively quick process resulting in a robust decision. Well, our client won, anyway.
Finally, we would also suggest greater clarity around the circumstances when the ASA will delay publication of an adjudication pending Independent Review, and the criteria to be applied when they make that assessment. Should that decision be left to the Chief Executive of the ASA, or should it be made by someone independent?
So, perhaps its time for the ASA to turn over a new leaf?