“I pay absolutely no attention to anything the ASA says”, Ryanair’s Head of Communications Peter Sherrard was quoted as saying in a Media Guardian piece, triggering a sharp not to say vitriolic exchange between the ad regulator and the budget airline. Stephen Groom commentates.
Who: Ryanair and the Advertising Standards Authority
When: October 2007
It all started with a piece in the Guardian's "Media" section by Rapesh Ramchandani about Ryanair's iconoclastic approach to advertising entitled "Ryanair takes a flier-and it works".
ASA: sheriff with no teeth?
Referring to recent Advertising Standards Authority ("ASA") findings against Ryanair ads, Rapesh quoted Ryanair's Head of Communications as saying "What do their initials stand for? Absolutely Stupid Asses" and "I pay absolutely no attention to anything the ASA says".
Rapesh thought the cut price airline's advertising effective nonetheless and appeared to commend the advertiser's attitude towards the ASA. He went on "Like an outlaw operating around the outskirts of an ad town whose sheriff has no teeth, Ryanair is pretty much free to do what it wants."
The ASA responds
Clearly the ASA was not going to take this lying down. Quick as a flash, the following week's Guardian Media carried a letter from ASA Director General Chris Graham.
Chris thought Ryanair's approach to the ad regulator as evidenced in the piece "only served to demonstrate how Ryanair is eroding public confidence in advertising and tarnishing its own reputation with customers and the industry."
The self regulatory DG then pointed out that previous protestations by Ryanair about ASA findings against their ads had resulted in one instance in the regulator deploying one of the more powerful weapons in its arsenal. This was in December 2003 when the ASA issued an alert to all media not to accept repeat bookings for the offending ad.
Chris said that if its behaviour continued unchanged, Ryanair "faced the real threat of formal sanctions, which includes a referral to the Office of Fair Trading under the Control of Misleading Advertisements Regulations1988."
Under these 1988 rules, the OFT has the power to apply to the court for injunctions against advertisers who repeatedly break the rules, if it can be shown that they have not been curbed by other regulatory means such as the ASA and its enforcement of the CAP Code of Advertising, Sales Promotion and Direct Marketing.
Ryanair fights back
Ryanair's Head of Communications, of "Absolutely stupid etc" fame, shot straight back in the following week's Guardian.
With admirable restraint, the spokesman earned his job title by opening:"the letter from Chris Graham ..of the ASA..strikes a new low for falsehoods and stupidity even for the ASA."
The riposte went on to trumpet the airline's commercial success and ventured that consumers loved its advertising. The letter then denied that the ASA had warned Ryanair they faced sanctions (although Mr Graham had not suggested any such threat had been made) and went on to say that if Ryanair was referred to the OFT, the airline would wholeheartedly support this so that a third party could review "these absurd rulings, incorrect findings and false claims by the ASA."
Rounding off the exchange, Marketing Week reported shortly afterwards that Ryanair had in fact been warned that after breaching the CAP Code for the fourth time in five months, it could indeed face a reference to the OFT. This could end in fines, the piece said, if the OFT ruled that the Irish airline had deliberately undermined advertising rules.
Why this matters:
References of advertisers to the OFT under the Control of Misleading Advertisements Regulations 1988 ("CMARs") have been running at a handful a year. Like references to the court under the Enterprise Act for persistent conduct causing consumer detriment, another possible weapon available to the powers that be, such action is highly unlikely to lead to fines unless any order banning repetition of the offending conduct is breached and the miscreant advertiser is hauled before the beak for contempt of court.
Despite this, Ryanair might be advised to pay slightly more attention to regulatory matters come spring 2008, when UK implementation of the Unfair Commercial Practices Directive will sweep away the CMARs and add another layer of regulatory risk for advertisers looking to push the boundaries. More of this soon on marketinglaw.co.uk.