Does advertising self regulation need more teeth?

The excellent job that the ASA does in self-regulating the UK marketing industry is to be celebrated, however I also feel that it needs to learn from the failings of the Press Complaints Commission (PCC) and toughen up its approach to enforcement.

The PCC’s failure to properly regulate its members has dramatically undermined public trust in the press and we risk the same with marketing. To avoid significant reputational damage to the marketing industry or draconian regulations from Parliament I’d like to make a suggestion. 

The CAP Code that guides the ASA’s adjudications is excellent in content, but the tools for enforcement are so light that they do not even constitute a tickle for those who don’t respect self-regulation. Of course most reputable companies wish to avoid the main sanction, that of name and shame – normally the publication of the adjudication on the ASA website and the small chance that it is taken up by the national media.

However most adjudications, even for serious breaches such as misleading the public, go along the lines of “we wrote to the brand and told them not to reproduce the advertisement / promotion again in its current form”.

There is however a small and persistent group of business people who are happy to take the risk of an ASA adjudication and will continue to push or break the boundaries so long as they see an easy opportunity to make money. When challenged some will stall their responses back to the ASA until they have signed up yet more consumers to a shady subscription scheme or no-hope weight reduction product. Others may simply cease trading and set up under a different name to keep on running the same offer or advert with apparent impunity.

It is time that the industry took on the challenge of dealing with this minority because they risk creating a negative environment for the rest of us.

Unlike PPP, who oversee the premium telecoms industry, the ASA has no power to impose financial penalties on those breaching its codes. The next sanction up from ‘please don’t do it again’ is a request that all future work is pre-cleared with the ASA and above that is a request to the media not to accept advertising from that brand.

But this is hardly effective if the promoter is running an activity on its own packaging, or via direct mail or if the perpetrator is, as is often the case, a media company itself. Just look at how many newspaper front cover promotions have broken the codes!

In the old days, consumers would take up issues with Trading Standards Departments and prosecutions or Cease and Desist orders might follow. But with the ASA now being the first port of call for consumers to complain to, the risks that rogue promoters face have, in my opinion, been reduced.

Certainly, the ASA system works for those ethical marketers who seek to adhere to best practice anyway and to the big brands who can’t afford to compromise the millions they’ve invested in creating a socially responsible image. Furthermore the ASA serves a useful purpose redefining acceptable marketing barriers as we have seen with the extension of the CAP code to cover digital marketing and the recent focus on marketing to children.

But as long as the ASA relies on the goodwill of those in breach, and cannot fine or levy more serious sanctions, its power and authority is limited. Consequently it risks being regarded as protecting the interests of the marketing bodies that sit on its board and fund its activities.

So how’s this for an idea. Any organisation that has a significant breach upheld against it must send a registered company director on a half day course (at a cost of say £500) that will explain the regulations and codes governing marketing communications. Failure to attend will result in a referral to Trading Standards.

Why send the director rather than the marketer? For a one man band making unproven medical claims on their herbal remedies e-commerce site it is the director who needs the education. For the multinational it works because taking up half a day of the directors valuable time will dissuade them from applying pressure to the marketing team and ensure that marketers don’t push the boundaries without board permission.

I’m not necessarily suggesting that the ASA grows teeth, but giving it a stronger spine would let us walk tall as marketers and protect the good guys from the activities of the bad minority.

Jeremy Stern is managing director of PromoVeritas.