There is a popular theory that nothing is more guaranteed to get attention than something seen to be controversial. In fact, some of the most famous adverts are the ones that have been banned.
Of course, this is nothing new. Audiences have always been intrigued by the scandal. Lady Chatterley’s Lover, Ulysses, Animal Farm, The Catcher In The Rye and Brave New World are some of the most popular books of all time and have all been banned in one or more countries for various reasons.
It is thought that the average person is exposed to around 10,000 advertisements per day. So if you’re investing in promoting your product or business, then you’ll want to ensure you stand out. Yet, businesses should proceed with caution because, though the odd banned advert becomes infamous, most adverts the ASA come after get taken down without ceremony, get very little exposure and the business responsible can lose the money they have invested in the campaign.
So, who is the ASA? What is their role and what should small businesses know about the ASA and the UK’s advertising codes?
What Is the ASA?
In the UK we have regulations over what can and cannot be included in advertisements. You’ll probably know some of the more obvious rules, such as warnings being included when in advertisements for betting or alcohol, but few non-advertising professionals know much about the details or the process for regulation. Of course, this wasn’t an issue for big companies who used Mad Men-style ad agencies to market their brands years ago when there were fewer and less immediate means of marketing communications. Now though, many businesses are promoting their brands themselves, even if just on social media, and they may not have heard of the ASA or the CAP code.
Advertising codes are written by the Committee of Advertising Practice (CAP) and upheld by the Advertising Standards Authority (ASA). The ASA are fully independent of the government and is not tax-payer funded. Their role is to investigate complaints made regarding marketing campaigns or ads, to make sure consumers are protected and that everyone sticks to the rules.
So, what exactly are these rules?
The CAP Code For Advertising
There are two UK codes of advertising - the BCAP, relating to broadcasting advertising (commercials, teleshopping, sponsorship credits, etc), and the CAP code, relating to non-broadcast advertisements and direct and promotional marketing. Both are available online to read in full but I should warn you, the BCAP is 144 pages and the CAP Code is 121 pages, so before you indulge let’s explore which may be relevant to you.
Whilst the BCAP code is upheld by the ASA and regulated by Ofcom, the CAP code falls under self-regulation. This means the rules are set by the advertising industry and then administered by the ASA. Although this means they have no legal power to enforce the rules, the majority of these codes are based upon existing UK laws around misleading advertising. Therefore, if the ASA finds a company to be in breach of this, failure to amend or remove the offending advert may result in referral to Trading Standards - something most businesses opt to avoid.
Key ASA Rules For Small Businesses
Most of the CAP code is reasonably obvious and relates to false advertising, protecting children and preventing companies from promoting harmful products or misleading the public as to the attributes of their products or practices. The ASA can therefore step in when issues of greenwashing, political influencing or discrimination are flagged.
In a world of fast communication and quick access to information, making false claims is risky for any business. These days, a company misrepresenting its practices or products often gets called out on social media. However, consumers can also complain to the ASA who may choose to publicly name the brand. Arguably, the biggest risk to businesses that attract the interest of the ASA is having their reputation damaged. Brand perception is especially important to Generation Z and millennials who prefer to align themselves with brands that reflect their values.
One of the key parts of the CAP code is section 8. This refers to marketing promotions, particularly running online competitions. Running campaigns, especially on social media, can be challenging as it's difficult to estimate how much engagement such campaigns will receive. Therefore, the CAP code states that any company running a promotion must have the resources in place to properly administer the promotion before it is launched. Section 8 also provides guidance on what businesses should do should they need to change the terms and conditions or if they're unable to meet the demands of a promotional campaign.
With the rise of influencer marketing, the ASA has also become stringent about affiliate marketing. In fact, in 2021 and several times since the ASA has opted to name and shame influencers found to be consistently breaching the guidelines. The most important rule that influencers and the companies who hire them must follow, is ensuring that promotions are identifiable as advertisements (remember to use the #Ad!). Businesses should also be mindful that working with influencers does not negate their responsibility to ensure these promotions adhere to CAP rules. You can find out more influencer post rules in our blog - Legal Considerations When Working With Influencers.
Most recently, the ASA has been clamping down on greenwashing practices and calling out companies who make misleading claims as to their carbon credentials. Businesses found to be greenwashing are now being threatened with steep fines as well as having their adverts banned.
What Happens If Your Business Is Reported To The ASA?
The ASA is responsible for hearing and considering complaints made about a company’s marketing activities. If investigated and found to be non-compliant, the best thing a company can do is to amend or remove the offending advert or campaign, although there is a process for appeal if a business feels a decision made against them is unfair.
When businesses choose to ignore the ASA’s warning they risk being sanctioned. This can include being added to the ASA’s list of non-compliant advertisers. Furthermore, the ASA works with search engines and social media platforms, as well as using its own considerable influence, to remove or compromise adverts that breach the CAP code.
Non-broadcast adverts that refuse to comply with the ASA may ultimately be reported to Trading Standards who have the power to take legal action against the business.
How To Stay ASA And CAP Compliant
Self-regulation does not make the advertising industry any less likely to comply with its guidelines. In fact, writing its own code arguably makes advertisers more invested, respectful of consumer rights and willing to support fair competition. Additionally, the ASA layer of compliance gives advertisers a chance to rectify campaigns that have broken the CAP code, and thereby avoid potential legal battles.
More detail on specific sectors and areas of regulation can be found in the Advertising Guidance section of the ASA’s website. However, a great way to keep up with decisions made by the ASA is to follow their rulings which are published here every Wednesday and can help business owners and marketers to keep up with what the ASA deems breaches of the CAP code.