Challenging misleading healthcare claims

Advertising Standards Authority

What is the Advertising Standards Authority?

The ASA is the body that regulates both broadcast and non-broadcast advertising and is:

…the UK's independent watchdog committed to maintaining high standards in advertising for the benefit of consumers, advertisers and society at large.

The ASA is funded by a levy on display advertising space, but it is kept independent of advertisers by a separate body responsible for setting and administering that levy. They receive no funding from Government. The levy is the only part of the system that is voluntary: advertisers can choose to pay the levy, but they cannot choose to comply with the Advertising Codes or the ASA’s adjudications.

There are distinct parts of the ASA: the Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP) (collectively known as the Advertising Codes or CAP Codes) who write the advertising codes; and the ASA, who apply them.

The ASA also run the Copy Advice service that give rapid free advice to advertisers to help them from falling foul of the Advertising Codes.

How the ASA works

By educating and training advertisers, the ASA tries to prevent problem ads appearing in the first place. They also monitor advertising to ensure standards are maintained. But they also rely on the public submitting complaints about ads they have come across.

When a problem advert is identified, they will work with the advertiser to resolve the problem. If the advertiser agrees to withdraw or amend the ad, their work is done. If the advertiser challenges the complaint, the ASA may conduct a formal investigation and ask the ASA Council to rule on it.

The ASA Council is the jury that decides whether ads have breached the Advertising Codes. Independently chaired by Lord Smith of Finsbury, the majority of its members come from outside the advertising industry.

These adjudications are published weekly on the ASA's website. If a complaint is upheld, the advertiser must withdraw or amend the ad and not use the advertising approach again.

arrowgreenFor further information, see the Governement's Marketing and advertising: the law.

arrowgreenFor further information on how the ASA controls advertising, see: How is advertising in the UK controlled?

arrowgreenFor further information on the ASA, see: Who we are.

arrowgreenFor an interesting article on the ASA, see: The truth about the Advertising Standards Authority

What does the ASA cover?

The ASA's remit includes:

  • Advertisements on the Internet, including:
  • banner and display ads
  • paid-for (sponsored) search
  • Marketing on companies’ own websites and in other space they control like social networking sites Twitter and Facebook
  • Magazine and newspaper advertisementsRadio and TV commercials (not programmes or programme sponsorship)
  • Television Shopping Channels
  • Commercial e-mail and SMS text message ads
  • Posters on legitimate poster sites (not fly posters)
  • Leaflets and brochures
  • Cinema commercials
  • Advertising within smartphone and tablet apps
  • Direct mail (advertising sent through the post and addressed to you personally)
  • Door drops and circulars (advertising posted through the letter box without your name on)
  • Ads on CD ROMs, DVD and video, and faxes
  • Sales promotions, such as special offers, prize draws and competitions wherever they appear.

…as well as Online behavioural advertising

This is fairly broad and covers just about any printed or broadcast advert as well as sellers' own websites, banner/third party ads, including marketing communications on social networking sites such as Twitter and Facebook.

arrowgreenFor further information on what the ASA covers, see: What we cover (our remit).

arrowgreenFor further information on what the ASA does not cover, see: Areas of complaint outside our remit.

Sanctions

Most advertisers comply with ASA rulings but the ASA also have a range of sanctions available to them.

  • All rulings are published online, often leading to bad publicity for the advertiser
  • Media owners and broadcasters refuse to run ads that break the rules
  • Poster advertisers that break the rules on taste and decency and social responsibility can be required to have their posters pre-vetted
  • Removal of Royal Mail direct mail discounts

For Internet advertising, the ASA have further sanctions available to help ensure compliance:

CAP can ask internet search websites to remove a marketer’s paid-for search advertisements when those advertisements link to a page on the marketer’s website that hosts non-compliant marketing communications.

Marketers may face adverse publicity if they cannot or will not amend non-compliant marketing communications on their own websites or in other non-paid-for space online under their control. Their name and non-compliance may be featured on a dedicated section of the ASA website and, if necessary, in an ASA advertisement appearing on an appropriate page of an internet search website.

They also state:

For misleading or unfair advertising, ultimately if advertisers and broadcasters persistently break the Advertising Codes and don’t work with us, we can refer them to other bodies for the further action, such as Trading Standards or Ofcom.

Such referrals are rarely necessary, as most advertisers prefer to resolve the matter directly with us.

arrowgreenFor further information on sanctions, see: further sanctions

arrowgreenFor further information on the ASA's referal options, see: Trading Standards becomes ASA’s legal backstop power

Copy Advice service

ASA guidance is fairly clear and should be comprehensible to most advertisers. However, the ASA also runs a Copy Advice service to help advertisers with potential adverts before they are published. It is a free service that can be used by any potential advertiser, although any advice given by the Copy Advice service does not necessarily mean that an advertiser would win if a complaint was made about the resulting advert: the ASA Council has the final say.

Misleading claims

The ASA's CAP website holds the CAP Codes as well as many help notes on a variety of subjects. The ones particularly relevant to complaints about misleading health claims include:

The ASA also include their adjudications as part of their guidance:

ASA adjudications provide important guidance to advertisers on how the Codes are to be interpreted. They act as a transparent record of our policy for consumers, media, government, industry and society at large on what is and isn’t acceptable in advertising.

Substantiation

The CAP Code states:

Substantiation

3.1 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove all claims, whether direct or implied, that are capable of objective substantiation.

Relevant evidence should be sent without delay if requested by the ASA or CAP. The adequacy of evidence will be judged on whether it supports both the detailed claims and the overall impression created by the marketing communication.

This highlights several important points:

  1. That a marketer must hold documentary evidence before making any claims;
  2. That the ASA considers both direct and implied claims;
  3. That the ASA will consider both the detailed claims and the overall impression given by the communication.

Point 1 means that the chiropractor must hold the evidence at the time the claims are made and that they cannot be retrospectively substantiated or substantiated with studies published after the claims were made.

The ASA's guidance on Substantiation states:

Medical and scientific claims made about health and beauty products, including slimming products, food supplements and cosmetics, should be backed by evidence, where relevant consisting of trials conducted on human subjects (see Rule 12.1 (health and beauty products and therapies), 15.7 (vitamins, minerals and other food supplements), 12.22 (cosmetics), 12.23 (hair and scalp) and 13.1 (slimming)).

Specifically, the CAP states:

12.1 Substantiation will be assessed by the ASA on the basis of the available scientific knowledge

Additionally, Health Beauty and Slimming Marketing That Refers to Medical Conditions states:

Marketers should hold robust evidence for all claims.

All scientific knowledge should be taken into account and not just some evidence that happens to support a claim — it is the totality of good scientific evidence available that is important to the ASA.

From several adjudications, we have a very good idea of what the ASA considers robust evidence: controlled and randomised, methodologically sound clinical study or studies, which have been published in an internationally recognised peer reviewed journal.

If the advertiser doesn't hold that standard of evidence for claims they are making, why are they making those claims?

Making a complaint

arroworangeSee How to submit a complaint to the ASA for help in submitting a complaint.

arrowgreenSee the ASA's leaflet: Complaints procedures for information on how the ASA will deal with your compalint.

 

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