Just when we were all wondering what had become of the much-vaunted root and branch review of the ad super-regulator which kicked off in Autumn 2009 just after Guy Parker took over as CEO, an “Update” has popped up indicating what’s in and what’s out in terms of the original “blue sky” ideas. Anna Williams reviews the review.
Topic: Regulatory
Who: Advertising Standards Authority
When: 6 December 2010
Where: United Kingdom
Law stated as at: 10 January 2011
What happened:
Back in 2009, soon after the arrival of its new Chief Executive, Guy Parker, the Advertising Standards Authority (ASA) disclosed that it would be carrying out a "Process Review" to improve the way it carried out its business. The ASA wanted to review the way it handles complaints from both the public and advertiser's competitors, how it carried out its proactive monitoring of advertisements, and the provision of pre-publication advice and guidance by the Copy Advice team amongst a wealth of other things.
The Process Review project got underway in the Autumn of 2009 with external consultants carrying out a consultation exercise with relevant stakeholders. A Preliminary Response document was released by the ASA in June 2010 and then in December 2010, a second update was released. This update provides responses from the ASA to some of the recommendations it received as a result of the Process Review consultation exercise.
The ASA has been keen to stress that the Process Review is all about the ASA getting better at what it does. It wants to be more effective, efficient and cost-effective, so is it on the right track to achieve these goals? In this article we take a look at a few of the key topics discussed in this latest Process Review paper to see how the ASA intends to achieve its new mission statement: "Ensuring that advertising in all media is legal, decent, honest and truthful, to the benefit of consumers, business and society".
Recommendations the ASA shall not be taking forward
As part of the Process Review, the ASA has been considering a number of potential recommendations. At this stage in its deliberations, it has decided that some of these recommendations will not be taken further. Amongst other things, some of the concepts that the ASA has now confirmed will be dropped include:
- charging advertisers to file complaints against advertisements created by their competitors;
- requiring full disclosure for all ASA formal investigations; and
- making changes to the ASA's Independent Review process.
One topic that had certainly grabbed the attention of advertisers was the possibility that the ASA could charge them if they wanted to complain about a competitors advertising. The ASA has explained that this will not happen now as it believes the Communications Act prohibits this. The Communications Act expressly prohibits Ofcom from charging for services it is under a duty to provide. As the ASA undertakes its handling of complaints in respect of TV ads on behalf of Ofcom, it has decided that it too is therefore prohibited from charging for investigating competitor complaints about broadcast advertising. This concept has therefore been dropped.
The ASA was also considering introducing a charge for complaints about non-broadcast advertising but decided that such a move would run counter to its drive towards a media neutral regulatory approach and so this shall also not be considered further.
However, the ASA is considering other ways of reducing the number and nature of ‘tit-for-tat’ complaints amongst competitors. Its analysis of formal investigations in 2007 to 2009 revealed that the average days elapsed following a public complaint was 65 for Standard Investigations and 92 days for Complex Investigations. These figures were much higher where non-public complaints were concerned, showing that complaints from competitors or other non-public parties are certainly taking up more of the ASA's time.
The ASA has also acknowledged that competitor complaints are particularly common in certain sectors. The ASA hopes that its recommendations aimed at speeding up formal investigations generally, will help it to resolve all cases faster going forward but it is also considering insisting that competitor complainants provide documentary evidence that they have made a genuine attempt to resolve their concerns direct with the advertiser concerned before the ASA will agree to investigate a complaint. The ASA's current Complaint Handling Procedures require non-public complainants to endeavour to resolve their differences, wherever possible, direct with the marketer or through their trade or professional organisation but ASA analysis as part of the Process Review has confirmed that very few organisations actually do this.
Recommendations the ASA shall adopt or consider further
1. Increasing the proportion of cases investigated informally
The ASA has revised its criteria for resolving cases informally and details as to these amendments can be found in paragraph 19 of the Non-broadcast Complaint Handling Procedures and paragraph 24 of the Broadcast Complaint Handling Procedures. The ASA has targeted a 5-10% increase in the proportion of both total investigations and broadcast investigations that are resolved informally. The ASA believes that if it is able to increase the proportion of investigated cases that are resolved informally by 7.5%, without compromising its average day turnaround performance for informal and formal Investigations, it will be able to free up ‘case days’ available to it with a notional efficiency value of £133,345.69 per annum.
2. Reducing 'waiting time'
Although 94% of cases are apparently completed within the ASA's target timeframes, the ASA has analysed the apparent elapsed time in 10% of the cases it formally investigated in 2009 to determine who had responsibility for the case during the various stages of its life cycle and whether any ‘waiting’ time could be reduced. The ASA is considering reducing this ‘waiting’ time by setting internal standards for completing key stages of investigations; setting and enforcing more challenging deadlines for external parties; and by continuing its use of ‘timetabling to conclusion’ to ensure all interested parties are clear early on in appropriate investigations of the deadlines and the ASA’s intention to stick to them. The ASA is currently considering the best target to work to in this regard and is considering whether Formal Investigations could be completed in 5% fewer days on average.
3. References to external studies
The ASA has made it clear that it will not accept mere references to external studies in support of performance claims in advertisements. Going forward, if an advertiser wants to refer to any studies in support of its claims, it must submit the studies concerned in full and highlight the relevant sections of the study to the ASA together with an explanation as to why such sections are relevant to the issue in hand.
4. The use of external experts
The ASA will from time to time consult with Clearcast and Clearcast's experts where specialist issues crop up with a broadcast advertisement complaint but the ASA has highlighted that the cosmetics sector often raises particular issues which have warranted consideration as part of the Process Review. The ASA, Clearcast and the RACC have decided to establish a common pool of experts for advising on complaints where cosmetic claims are concerned. Five experts have been recruited and shall form a pool of experts that each of these three bodies will call upon when required. Work is in progress to ascertain how the pool of experts will work operationally and assess evidence put forward to support cosmetics claims and what guidance could be issued for the development and support of claims in cosmetics advertising.
5. Stakeholder management
The ASA is still exploring whether it would be viable to adopt more of a ‘Stakeholder management’ approach to "top advertisers" (selected based on ad spend). The ASA is interested in developing better contacts and relations with such advertisers so that it can provide them with an earlier warning of developing issues, improve their understanding of the ASA system and maximise chances of resolving cases involving such advertisers on an informal basis. The ASA is also considering adopting such an approach with other key stakeholders such consumer groups and other regulators. However, as the ASA has itself acknowledged, the success of such a plan will depend on the ASA being able to free-up the time of its case managers more. That will be a battle in itself, especially now that the ASA will be taking on complaints regarding most online advertising in 2011 on top of its existing case load.
6. Process tweaks
The ASA has hinted towards some of the "process tweaks" introduced to the way the ASA operates day-to-day. It has introduced an ‘ASA Chairman’s prerogative’ to overrule, where appropriate, requests from a single Council member that a case should be formally investigated. This power is likely to be used where all other Council members have accepted that the case concerned should be closed without further investigation. The ASA is hoping 75% fewer cases shall be investigated where they derive from the views of one sole Council member.
The ASA is also going to look at whether and how it should refine its processes to enable it to deal more efficiently with multiple complaints about an ad or campaign. It has also been reconsidering the channels of communication it employs during an investigation. Its policy is to use the communication channel most appropriate to the case in hand and generally, only when sending notifications of a complaint, draft recommendations and final adjudications to interested parties are letters sent. The ASA has indicated that going forward it will encourage its staff to make more frequent use of the telephone, followed-up where necessary with written confirmation of conversations. It is hoped this will mean cases can be completed more quickly and relations with stakeholders can be improved.
7. Changes to the Copy Advice service offered
During the first half of 2011, it is intended that a premium charge will be applied for any required rapid turnaround of an enquiry from an advertiser or advertising agency to the Copy Advice Service. If a turnaround of four hours or less is requested, queries submitted before 2pm would be turned-around that same day but at a cost. Such requests will carry a price tag of £200 + VAT per enquiry, with a 15% discount for upfront online payment. The ASA predicts that this will mean they shall only receive around 50 such requests per year. As well as generating an additional £10,000 per year (excluding discounts) for the ASA, the ASA hopes this will regulate the flow of potentially disruptive and time-consuming last minute requests from advertisers and agencies.
Why this matters:
The ASA believes that the recommendations it has decided to take forward will benefit consumers as its operations will work more efficiently and be more focused on key priorities and therefore as a result, the ASA will become more effective at resolving investigations quickly.
The ASA also believes there will be benefits for advertisers and other stakeholders as it strives to increase advertisers' awareness of the ASA's operations and how the ASA applies the Advertising Codes. It hopes there will be more of a two-way communication developing with advertisers and that cases will be investigated and closed more quickly.
Having said this, the Process Review is still not yet complete however and so there is still more information to come out of the ASA as to how it will operate on a day-to-day process and what changes advertisers and the public may see when they file a complaint about an advertisement.
The ASA has indicated that it hopes to publish its Final Response to the Process Review during the course of 2011 but no clearer timeframe has been given at present. It is proposed that this Final Response will set out, in full, all the changes the ASA is introducing. Only then will we have certainty and be able to assess fully and guage the future of the ASA and complaint handling. Watch this space…
