Who: ASA, Camden Trading Standards
Where: London
When: 21 May 2014
Law stated as at: 5 June 2014
What happened:
The UK’s self-regulatory advertising watchdog, the Advertising Standards Authority (“ASA”), has referred two advertisers to Camden Trading Standards for the first time.
How has this come about?
Serious, persistent breaches
Occasionally, advertisers choose to continue with advertising which has been the subject of an adverse ASA adjudication. In this case, or where an advertiser is a “repeat offender”, having acquired a number of “Complaint upheld” decisions, the ASA previously had the power to refer such advertisers to the Office of Fair Trading (“OFT”) for further action. The OFT had, among other things, legal powers to prosecute and fine, which the ASA does not. As Marketinglaw readers will be aware, the OFT was abolished earlier this year, and since then, Trading Standards has been appointed as the ASA’s new legal backstop.
How the referral arrangement with Trading Standards works
There is no national Trading Standards office – local authorities each have their own Trading Standards team. As the ASA is based in the borough of Camden, London it is Camden’s Trading Standards team who now take the lead “legal backstop” role in England and Wales. The Department of Enterprise, Trade and Investment in Northern Ireland and the Convention of Scottish Local Authorities (COSLA) in Scotland have taken up the baton in the other parts of the United Kingdom.
ASA refers two online advertisers
21 May 2014 saw the first two cases being referred to Camden Trading Standards under the new arrangements.
Each of the two advertisers in question was persistently making what the ASA felt to be misleading claims in the area of health, a hot topic for the ASA and a sensible one to have strongly regulated on public policy grounds. The advertisers in question are Electronic Healing (“EH”), an online retailer of alternative remedies and Fahrenheit60 Ltd (“F60″), a soft drink manufacturer.
So, what had these advertisers done to be the ASA’s first referrals under the new legal backstop regime?
Various health claims for Liquid Oxygen Drops and Bob Beck Protocol
EH was selling a number of products on its website, making claims which the ASA determined in two investigations to be without appropriate substantiation. Despite “complaint upheld” findings in both these cases, EH had apparently continued to advertise its products even after being placed on the ASA’s public blacklist of “non-compliant online advertisers”.
The products which caused the complaints were the ‘Bob Beck Protocol’ and ‘Liquid Oxygen Drops’. EH claimed that Bob Beck Protocol “kills or disables microbes (virus, bacteria, and fungus) in the body” while Liquid Oxygen Drops were “credited with a multitude of significant health benefits from healthy energy to immunity and disease prevention”. A video on EH’s website also claimed that The Bob Beck Protocol could “amplify the immune system, remove the need for flu vaccinations, increase oxygen in the blood, reduce HIV infection levels and help fibromyalgia”.
As of 5 June 2014, EH was continuing to advertise these products on its website, and had apparently responded to the ASA’s enforcement action by publishing a webpage about the ASA accusing the regulator among other things of attempting to “suppress information about the Bob Beck Protocol” and calling for its funding to be cut.
Thermogenic reactions
F60, which produces a soft drink called “Aspire”, had made a number of claims about its product on its website. One claim was that drinking Aspire could create a “thermogenic reaction which could increase metabolism and burn up to 200 calories per can”. The website was also reported to state that Aspire contained Guarana extract, Green Tea extract and L-Carnitine, and that these ingredients would boost metabolism, accelerate weight loss and oxidise fat.
In dealing with the initial complaint to the ASA, F60 produced a number of pieces of evidence to support their claim, including a research report conducted by a university investigating the thermogenic effects of drinking Aspire as opposed to a placebo in 20 participants and a letter from a local Trading Standards department.
However the ASA found the scientific study lacking, and did not agree that it adequately supported the claims made. F60 refused to provide an assurance that it would amend its website, so the ASA placed F60 on its online blacklist, and subsequently referred it to Camden Trading Standards. However as of 5 June 2014, the website for the product appears to be offline, so it may be that the referral has had the desired effect.
Why does this matter:
In the ASA’s press release, Chief Executive Guy Parker was quoted as saying that: “Misleading advertising is unfair, but a misleading health claim can also be particularly harmful. Our referrals to Trading Standards are a clear warning to those who won’t stick to the rules that they face the prospect of legal sanctions. And these are just the first referrals: we’re preparing our cases against other advertisers who persist in making misleading claims.”
Whether Camden Trading Standards will have the resources and capability to take effective enforcement action against larger brands remains to be seen, however such advertisers should be aware that the ASA also has the power to call upon the Competition and Markets Authority to enforce its rulings if the situation calls for it.
Brands should also remember that consumers will shortly be empowered to take matters into their own hands in certain cases where advertising is shown to be misleading, when the Consumer Protection from Unfair Trading (Amendment) Regulations come into force later this year.
