Who: Advertising Standards Authority (“ASA”)/Committees of Advertising Practice (“CAP”)

Where: United Kingdom

When: 21 April 2017

Law stated as at: 9 May 2017

What happened:

2016 was another record year for the ASA, with 4,824 ads amended or withdrawn as a result of its work; an increase of 5% year-on-year. The ASA’s 2016 annual report highlights its success, and its difficulties, as a regulator, keeping up with the rapidly evolving online advertising landscape and resulting challenges. Notably, in 2016, the ASA resolved 28,521 complaints concerning 16,999 ads, with 8 websites taken down, one successful prosecution and two arrests pending prosecution.

Advertiser-owned ads bringing challenges

2016 marked the fifth anniversary of the ASA’s and CAP’s extension of advertising rules to cover regulation of online ‘advertiser-owned ads’ – claims made on advertisers’ own websites or on social media; accounting for 1 in 3 of the advertising complaints made to the ASA in the last five years.

Over the last five years:

  • the ASA has resolved 41,383 complaints about 36,872 online ‘advertiser-owned’ ads; and
  • 88% of these claims related to misleading ads; compared with 73% across all media.

Advertiser-owned ads now form nearly half of the ASA’s work and 77% of all internet ad cases resolved in 2016. With online ads becoming increasingly difficult to identify, the ASA distinguishes between online advertising and editorial material, “by determining if the content is directly connected to the supply or transfer of goods and services”.

Top 10 most complained about ads

Not one of the top 10 most complained about ads of 2016 was upheld; evidence that public unease with an ad doesn’t always result in that ad being banned. Television ads still receive the most complaints, with 9 of the top 10 being TV ads complained of on the ground of offence. However, the majority of ASA’s cases last year actually related to internet adverts, with 70% of all complaints relating to misleading ads.

Moneysupermarket.com

Good examples are the three Moneysupermarket ads which received a total of 2,500 complaints for being overtly sexual. The ASA found the ads wouldn’t cause serious or widespread offence to viewers and were more likely to be interpreted in a humorous manner.

Gourmet Burger Kitchen (GBK)

GBK’s series of ads received complaints for being offensive to vegetarians and vegans, containing wording such as “Anyone fancy a nice, juicy, 6oz lettuce?”; “Resistance is futile”; “Burger is the new quinoa” and “They eat grass so you don’t have to” with a picture of a cow. GBK retracted some ads on its own accord, but the lettuce and quinoa ads remained, as the ASA considered most viewers would interpret the references as general references to food preferences.

What does 2017 hold?

On 1 October 2017, Lord Chris Smith will be stepping down and Lord David Currie – previously the founding Chair of Ofcom and the CMA – will take over a challenging role.

Clamping down on misleading ads

In 2016, the health and beauty sector had the most ads retracted or amended for being misleading. 2017-2018 will see the ASA working closely with the health and complementary medicines sector, providing guidelines for promoting their services in line with the ASA rules.

Broadband providers should tread carefully

Misleading broadband ads have been a significant focus of the ASA and CAP in 2016, as Marketinglaw has reported. 2016 saw the culmination of the ASA’s and Ofcom’s work to bring about clearer pricing in broadband advertising. In November 2016, the ASA also published independent research into consumers’ understanding of broadband speed claims made in ads. CAP is now consulting on tougher standards in advertising for broadband speed claims; the consultation is open for 10 weeks, closing on 13 July 2017. 2017 will also see the results of the ASA’s investigation into the use of “fibre” in part-fibre broadband offers.

Restricting ads for goods High in Fat Sugar and Salt (“HFSS”)

A major regulatory challenge for the ASA is CAP’s announcement of new rules to tackle poor health and obesity among children, placing new restrictions on the advertising in non-broadcast media of HFSS foods and drinks. With children increasingly watching content online rather than on television, 2017 will see these new rules coming into force and CAP will provide industry training and advice on how to ensure compliance.

In 2016, the ASA also tackled gender stereotyping and misleading prices for holiday bookings. Importantly, ASA’s rulings can help other regulators in enforcement. For example, ASAs ruling last year requiring Opodo to retract a misleading claim led to the Civil Aviation Authority launching its own investigation into Opodo’s pricing practices.

How the ASA is adapting

The report shows how the ASA’s strategy is to become more proactive and to have greater impact. In keeping with technological changes, the ASA’s sanctions for non-complying online ads now include:

  • working with internet search providers to remove non-complying paid-for search ads;
  • a dedicated section on the ASA’s website featuring non-complying advertisers’ names and details to appear in search engine results; and
  • placing the ASA’s own ads into relevant search results, to warn consumers and to highlight advertisers’ non-compliance.

In 2016, the ASA and CAP provided record levels of industry advice and training, with a 10% increase on that provided during 2015. Their objective now is to organise more sector-focussed and issue-wide projects.

Why this matters:

Advertisers should take note of the ASA’s significant success last year in clamping down on misleading online ads. Over the next year, broadband providers should pay particular attention to the ASA’s and CAP’s movements, including the results of their research, investigations and consultations. It only takes one complaint for the ASA to investigate whether an ad has breached the advertising rules. To ensure compliance, advertisers should take advantage of the increased training and advice offered by the ASA and CAP.