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Self-regulation of the advertising industry simply isn’t working

4 min read

In the current landscape, brands continue to push the boundaries of what is appropriate, knowing their ads will probably run uninterrupted, writes Baroness Hayter

At the end of July last year, I noted an ad in the New Statesman for a TREATMENT for Alzheimer’s – involving “transcranial magnetic stimulation”. Unsurprisingly, I surmised it wasn’t a treatment, and immediately complained to the Advertising Standards Agency (ASA). Eight months later, I still await their judgement though am confident the complaint will be upheld. My biggest worry, though, is not about the delay, but that neither the firm (NeuroAd) nor the Statesman can be admonished or fined for this mis-selling.

More seriously, no-one is obliged to contact consumers who’ve purchased the device (presumably for a five-figure sum) on the basis of a flawed ad, let alone pay them compensation. Interestingly, the company’s website has to admit that, not only is neuroAD “an investigational device” but it’s “not commercially available in the United States” – suggesting it hasn’t been approved there.

Now my problem is not about the device itself (about which the medical world should deal) but that we only have a self-regulating agency – the ASA – protecting consumers from such mis-selling, with no enforcement nor compensation powers, let alone any role in taking up cases without busy-body activists like myself triggering the investigation.

Other sectors are equally affected. 

In June 2017, Diageo released a Captain Morgan rum branded ‘filter’ via social media Snapchat – a platform with a youthful user base – featuring cartoons of the brand’s mascot and alcoholic drinks, clearly raising concerns that it appealed to, even targeted at, under 18s. In January, the ASA upheld a complaint, requiring Diageo not to run the ad again, and ensure future ads do not target or appeal to those too young to purchase alcohol.

Too little too late? The ASA themselves note that 13-17-year olds represented “one of the largest groups” of Snapchat’s 11 million audience, yet their decision took six months to emerge, during which time children continued to see the ad. With no enforcement powers, the ASA were unable to issue a fine or other sanction. In this landscape, brands continue to push the boundaries of what is appropriate, knowing their ads will probably run uninterrupted, at a price of what is essentially a verbal warning.

Then just 10 days’ ago the ASA finally (after 18 months) upheld complaints against four of the main secondary ticketing websites (StubHub, Viagogo, Seatwave, GET ME IN!) about their misleading presentation of pricing information.

The lack of clear performance indicators and time limits for the ASA means that complained about-firms can go on questioning the draft determination (as they did for both my complaint and that of the secondary ticketing one) meaning more and more consumers are tricked whilst the ASA appears to continue to listen to just one side of the table.

Furthermore, though the ASA may then claim to clamp down on misleading ads, it has no enforcement powers.  It only deals with future practice, so – in the case of secondary ticketing – it has now banned several pricing practices, such as not making the total ticket price clear at the beginning of the customer journey, not including the booking fee (inclusive of VAT) upfront, not making any delivery fee clear, and not using an “official site” clear where it is not really that, it will do nothing to force these companies to contact customers who’ve been mis-sold, nor require any compensation for them.

So, while enforcement (for breaches of the Consumer Rights Act, for example) lies with the CMA or trading standards, in fact they will never have time to deal with claims to treat Alzheimer’s, alcohol ads aimed at children, nor rip off prices for pop fans, when they have rather bigger fish to fry.

ASA supporters claim self-regulation is working. It doesn’t feel like it to me. Perhaps time for some statutory back-up?

Baroness Hayter is Shadow Deputy Leader of the House of Lords. Her Oral Question will take place on Thursday 22 March



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