Sanctions
The vast majority of advertisers and broadcasters comply with ASA rulings; however, for the small minority who don’t, there are consequences.
The main aim of the system is to help ensure compliance with the Advertising Codes, rather than punish advertisers. However, some of the sanctions at our disposal can be detrimental to those advertisers who choose to not comply.
One of the most persuasive is bad publicity – an advertiser’s reputation can be badly damaged if it is seen to be flouting the rules designed to protect consumers.
Non-broadcast
The majority of sanctions for non-broadcast advertising are co-ordinated through CAP, whose members are trade associations representing advertisers, agencies and media. There are several CAP sanctions, which can be employed in different circumstances:
Ad Alerts - CAP can issue alerts to its members, including the media, advising them to withhold services such as access to advertising space.
Withdrawal of trading privileges - CAP members can revoke, withdraw or temporarily withhold recognition and trading privileges. For example, the Royal Mail can withdraw its bulk mail discount, which can make running direct marketing campaigns prohibitively expensive.
Pre-vetting - Persistent or serious offenders can be required to have their marketing material vetted before publication. For example, CAP’s poster industry members can invoke mandatory pre-vetting for advertisers who have broken the CAP Code on grounds of taste and decency or social responsibility – the pre-vetting can last for two years.
Sanctions in the digital space - In addition to the above-mentioned options CAP has further sanctions that can be invoked to help ensure marketers’ claims on their own websites, or in other non-paid-for space under their control, comply with the Codes.
CAP can ask internet search websites to remove a marketer’s paid-for search advertisements when those advertisements link to a page on the marketer’s website that hosts non-compliant marketing communications.
Marketers may face adverse publicity if they cannot or will not amend non-compliant marketing communications on their own websites or in other non-paid-for space online under their control. Their name and non-compliance may be featured on a dedicated section of the ASA website and, if necessary, in an ASA advertisement appearing on an appropriate page of an internet search website.
For misleading or unfair advertising, if an advertiser refuses to comply with the ASA, then the ASA Chief Executive is able to refer the advertiser to the Office of Fair Trading for legal proceedings under the Consumer Protection from Unfair Trading Regulations 2008 or the Business Protection from Misleading Marketing Regulations 2008.
Such referrals are rarely necessary, as most advertisers prefer to resolve the matter directly with us.
The ASA’s designation by Ofcom of regulating Video-on-demand advertising means that we have access to a new sanction. Failure to comply with the rules in the VOD Appendix may result in the matter being referred to Ofcom with a view to Ofcom considering whether the media service provider has contravened the relevant requirements of the Act.
Broadcast
For broadcast advertisements, the responsibility to withdraw, change or reschedule a commercial lies with the broadcasters.
Broadcasters are obliged by a condition of their broadcast licences to enforce ASA rulings. If they persistently run ads that breach the Codes, broadcasters risk being referred by the ASA to Ofcom, which can impose fines and even withdraw their licence to broadcast.
Although the obligation to comply with the Codes rests with the broadcaster, advertisers also suffer consequences if their broadcast ads breach the Codes.
They might, for example, face bad publicity generated by an upheld complaint to the ASA. Advertisers might also have wasted hundreds of thousands of pounds making the banned advertisement in the first place and lost the revenue that it might have generated. And because broadcasters cannot show ads that breach the Codes, advertisers might lose prime advertising slots in which a banned ad has been booked to appear.
Finally, any advertisements that break the Codes are disqualified from industry awards, denying advertisers and the agencies that created the ads the opportunity to showcase their work.