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Advertising Standards Authority

Volume 611: debated on Monday 23 May 2016

Motion made, and Question proposed, That this House do now adjourn.—(Stephen Barclay.)

This evening, I want to raise an ongoing challenging issue with the Advertising Standards Authority Ltd, commonly known as the ASA, and related companies, including the Committee of Advertising Practice Ltd, the author and publisher of the CAP code.

I have been involved with two separate cases relating to the ASA on behalf of constituents. I intend to spend the balance of my time on the second, but the first is the case of Innovate Product Design, an excellent Salisbury company that provides a complete service to inventors, from patent search and product protection to design and prototyping and advice on marketing. It has had six complaints, not upheld, against it but still has outstanding concerns about the material subject to the ASA’s ruling and whether it was within the scope of the advertising code. I hope to resolve this with a meeting that I have asked Craig Jones of the ASA to convene with ASA representatives, but for now it would be helpful if the excellent Minister could confirm that Innovate has no outstanding ASA complaint against it and that it has never had a complaint upheld against it. It is a company that offers a first-rate service and there is nothing to suggest that it has misrepresented anything in its promotional literature.

The second of the two cases, which I will speak about in some depth, relates to my constituent Dr Alyssa Burns-Hill, PhD, MSc, fellow of the Royal Society for Public Health and member of the Institute of Health Promotion and Education. Dr Burns-Hill first came to see me on 13 November 2015 and explained that in November 2012 the ASA had upheld one complaint made against her. The first part of the complaint was that she was making misleading claims about saliva testing being able to detect hormone levels. My constituent believes that the study submitted as evidence was cited inappropriately in the ruling, demonstrating a lack of deep expertise in interpreting health-related data. The second part of the complaint was that she was being misleading in using the academic title “Dr”, as while she had a PhD, she was not a medical doctor.

Following the ruling, Dr Burns-Hill was told in an email from the ASA to change her website, business cards and publications to say only her name followed by “PhD” and then the phrase “doctorate in healthcare”, followed by the rest of her post-nominals, including her MSc and professional memberships. Dr Burns-Hill refused to comply as she felt it conveyed that she was the holder of two doctorates, a PhD and a doctorate in health. After being rebuffed by Lord Smith of Finsbury and Guy Parker, managing director of the ASA, she went through the extended process of an independent review at her request, while the original judgment was still published on the ASA website. After the independent review, the ASA partly admitted its mistake but still insisted that she had to qualify that she was not a medical doctor next to any listing of her qualifications. She had already made it absolutely explicit on her website’s “About” page that she was not a medical doctor as well as issuing substantial information on her qualifications and work practice, as was acknowledged in the ruling. Yet Dr Burns-Hill is held up by the ASA as a misleading advertiser, and is even referenced in the CAP advice and guidance.

Dr Burns-Hill refused to comply with this ruling, as she felt that the proposed remedy was still inconsistent with established conventions of listing academic qualifications and served only to justify the ASA’s initial ruling. In response, the ASA imposed sanctions on her, including taking out Google adverts claiming she was a misleading advertiser, which she claims has damaged her business and reputation in what is a narrow and specialist field. She also contends that, as a means of persuasion or sanction, the ASA is itself in breach of the Consumer Protection from Unfair Trading Regulations 2008. She was also advised that to pursue the case through judicial review would cost at least £20,000—a prohibitive cost by any estimate.

Since first speaking to Dr Burns-Hill about her case, I have been in contact with the ASA and have been very grateful to have had an in-depth phone conversation just before Christmas last year. I subsequently received a detailed letter from Craig Jones, the director of communications at the ASA. None the less, my constituent still feels aggrieved, as she feels that the underlying issues surrounding her case have not been adequately addressed or remedied.

First, there are legitimate concerns about the transparency of the ASA in terms of its processes and in particular with regard to its status and relationships to trading standards. I have looked into the legal framework within which the ASA operates, and I realise that it will always be complex for a self-regulatory body with a legal backstop. I understand that the ASA is recognised by the courts and the Government as the “established means” for the purposes of section 19(4) of the Consumer Protection from Unfair Trading Regulations 2008. Judicial review is therefore possible because the ASA is recognised as a public body. However, the advertising codes it enforces are not enshrined in law; it is funded by industry and its council is appointed by industry, so it is also a self-appointed, regulatory body. I do not doubt that the legal status of the ASA is sufficiently robust, but it is extremely complex, and was certainly opaque to my constituent, a well-educated professional.

In preparing for this debate, I have even heard differing views from the ASA and from the House of Commons Library on the ASA’s legal position and authority, which I think suggests that there is unacceptable and misleading uncertainty. This has fuelled Dr Burns- Hill’s sense that the ASA is not operating legitimately and is not accountable in the way that statutory bodies are.

I am aware that similar concerns about the ASA have been raised previously in the other place by Baroness Deech. My constituent also feels that the recent South African High Court judgment against ASA Ltd reflects some of these concerns, and I understand that barrister Richard Eaton is raising questions with regard to the Competition and Markets Authority and its relationship to the ASA. I believe that there are some genuine transparency concerns here. The reasoning of the independent reviewer is not publicly available, nor are the details of any original judgments that have been subject to revision, although it is noted when a judgment has been revised.

I, too, met the ASA in relation to a case raised in my constituency. Does the hon. Gentleman agree that there are inconsistencies regarding transparency in the ASA? One of the challenges is that where complaints have been made but not upheld, parts of the investigation are still published online, yet other evidence is not published and is withheld from the public.

I am grateful for the hon. Lady’s intervention. She raises other issues, which I hope the Minister will pick up on in his response.

To return to my case, after the independent review process, the only avenue remaining is expensive judicial review. Dr Burns-Hill was referred to trading standards in January this year, three and a half years after the ruling, but only heard from trading standards today— as a result, I believe, of the tabling of this debate. That referral is only on grounds on non-compliance, despite my constituent asking to be referred since the original ruling in 2012 and reiterating that request to them in January and September 2013. Would the Minister consider an option for an advertiser to require a referral to trading standards after independent review, who would then conduct their own investigation?

Secondly, I am concerned about the depth of the ASA’s technical expertise. In October 2015, Lord Smith of Finsbury, the chair of the ASA, said in the other place that in 2014 the ASA had used expert support in only 16 out of 900 cases. My constituent strives to reach the highest professional standards, and is a member of several professional bodies. Because of her significant experience in the healthcare sector, she is well aware that individuals with PhDs can call themselves “Dr” without having to qualify expressly that they are not medical doctors. That is true even in hospital settings, where, for example, holders of PhDs in public health and psychology often work.

I believe there is a concern that the ASA did not pay sufficient attention to established academic practice, and, indeed, to the codes of professional healthcare bodies. I was told only recently that it consulted such bodies. That fact appears nowhere in the public ruling, and the evidence from the consultations has not been published. My constituent was put in the invidious position of respecting the authority of those bodies in relation to how she presented her professional and academic qualifications, and being confronted with the opaque authority of the ASA, which initially demanded that she use a completely non-standard way of conveying her qualifications and did not use the title “Dr”, as was her right.

An advertiser without the tenacity of my constituent would probably have passively accepted the substandard—and subsequently adjusted—ruling of the ASA, the suggested remedy for which was to include the phrase “doctorate in healthcare” throughout her website and on her business cards. If the ASA did consult on the established professional and academic conventions for displaying qualifications, why was the evidence of those consultations not made available and cited specifically in the judgment? If the ASA is not seen to make use of readily available expertise in such an important area as academia, it is difficult for it to retain its full credibility as a self-regulating body. Will the Minister require the ASA to publish when it has drawn on external advice, what that advice is, and by whom it was provided? That would surely be a sensible step to improve the authority and credibility of the ASA in such specialist matters.

I thank the hon. Gentleman for raising what is clearly an important personal issue in his constituency. Many of us have had cause to have dealings with the ASA, and, all too often, have seen it go far beyond the reach intended for it. No doubt it does good work in rooting out misleading advertisers, but are there not occasions on which it goes too far? I hope that the Minister will assure us tonight that it possible to achieve a balance between credibility and responding to constituents’ concerns. If we can achieve that balance, we can do better.

The purpose of this debate is not to undermine the ASA—obviously, I am raising a very specific case—but I believe that its credibility is at stake, and that there are sensible steps that it can take to improve the transparency of its decisions and the way in which it represents them.

For my constituent Dr Burns-Hill, it is too late. She is left feeling aggrieved, because she had an uncertain basis for action given the opaque authority of the ASA, which required a remedy that did not fit her understanding of established academic and professional conventions. It is very difficult for her to have confidence in the ASA, given its apparent lack of relevant expertise in its dealings with her. I recognise that there is a difference between the academic recognition of a qualification and the implications of the marketing of that qualification to lay prospective consumers, and I recognise that the ASA’s role is to examine those matters. However, my constituent does not recognise the right of the ASA unilaterally to require an individual to adopt a non-standard use of post-nominals, when someone could work in a hospital and use the title “Dr” without the need to qualify it, if they were the holder of a PhD.

I am grateful to the ASA, and in particular to Craig Jones, the communications director, for their engagement with me and my constituents and for their detailed responses to date. They have sought to answer my questions and address the case as far as possible. However, I have raised this matter today on the Floor of the House as my constituent still feels aggrieved and besmirched. I want to give satisfaction to my constituent on this matter and I sincerely hope that the Minister will be able to address the specific points I have raised. I would also be grateful if he would use the authority of his office to facilitate a meeting between the ASA and Innovate, the first set of constituents. I very much look forward to hearing his response.

I would like to thank my hon. Friend the Member for Salisbury (John Glen) for securing this debate. I also thank other hon. Members for their contributions. It is quite right that we should be debating the regulation of advertising, because these are clearly issues that attract strong interest in the House. I should like briefly to reflect on the fact that we have a successful advertising industry in this country, and that is why good, strong regulation is important. There is a need for consumers to trust advertising.

Advertising in the UK is worth some £13 billion. It is the second highest contributor to our economy in the creative industries sector, and it has doubled in value over the past five years. It employs around half a million people, if we take into account everyone employed in the wider advertising industry. It is also crucial to our economy in other ways. Without advertising, brands cannot make their mark in the marketplace. It also helps to stimulate competition, innovation and expansion. The UK has some of the most awarded ad agencies in the world.

At the heart of the industry lies great creativity but, as I said earlier, there must also be a system of regulation to enable consumers to trust advertising, whatever its nature, from the multi-million pound broadcast on ITV to the simple, straightforward advertising in a local newspaper. No one is arguing that the industry should not be regulated, and one of the questions raised by this debate is how that regulation should work. As a matter of principle, this Government would prefer effective self-regulation wherever possible, rather than statutory regulation. We support the system of co-regulation and self-regulation for broadcast and non-broadcast advertising that is enforced by the Advertising Standards Authority. We believe that this regulatory system has worked well for consumers and advertisers. Indeed, an assessment carried out in 2013 held up the ASA as an exemplar of successful self-regulation. As you can imagine, Mr Speaker, we therefore take the concerns raised by hon. Members in tonight’s debate very seriously indeed.

The current system should provide an easy one-stop shop for the public and for advertisers. It should be flexible and allow the ASA to take on different responsibilities. For example, online advertising barely existed 10 years ago. The system does not cost the taxpayer anything, so it is cost-effective, and it should in most cases allow for harmonious decision making. Clearly, however, the circumstances raised by my hon. Friend and alluded to by other hon. Members show that the system has not always worked as well as it might. It would be inappropriate for me to comment on the specific case of Innovate that my hon. Friend raised, because I am not familiar with the details, but I will use what he referred to as the authority of my office to facilitate a meeting between the Advertising Standards Authority and my hon. Friend so that they can discuss that case. Let me turn to the issues relating to the second case that he raised, which took up most of his speech.

My hon. Friend raised issues of transparency, for example. Whatever the whys and wherefores of the points under debate, my strong advice to the ASA is that if hon. Members are prepared to come and debate its workings late into the night, it should listen well. It is sometimes the case that hon. Members do actually have something effective to contribute, so I hope that the ASA will take their points on board, meet all hon. Members who have taken part in this debate and reflect on whether it can take forward some of the judiciously put critiques of how it has worked in relation to their constituents.

As it stands, the ASA is meant to publish the full outcome of formal investigations and to indicate the number of cases that it has resolved informally. It should publish all its research and reports, guidance for advertisers, compliance reports and factsheets on current hot-topic themes. Information about the number of complaints and cases received and resolved are in the annual report, of which there is an archive going back to 1961. It has a long-established practice of material exchange and disclosure with parties in cases, which has been consistently upheld by courts as fair, proportionate and reasonable. However, I noted that the hon. Member for Halifax (Holly Lynch) indicated that she felt that only part of an adjudication had been published, not the full context, so that is exactly the sort of point—the case of the constituent of my hon. Friend the Member for Salisbury is another—that the ASA should take into account. I hope that it will sit down with both hon. Members to talk through how it can increase transparency in order to embed greater trust.

My hon. Friend also raised the relationship between the ASA and trading standards departments and suggested that the latter might conduct their own investigations into cases after the ASA had concluded its own investigation. I must make it clear that it is not the role of trading standards officers to approve ASA processes or to follow up on ASA rulings. Trading standards departments act as the ultimate legal backstop in cases in which consumer protection laws have been breached, and they act under business and consumer protection regulations. I am unsure whether my hon. Friend’s suggestion would work in this case, but I am obviously happy to put it to the relevant trading standards department. He did, however, indicate that trading standards officers had been in touch with his constituent today.

My hon. Friend asked whether the ASA could be required to publish when it has drawn on legal advice and the details of that advice. It is true that the ASA engages external expert advice on a case-by-case basis when claims are capable of objective substantiation. It assesses its need to bring in external advice, but it also has an amount of in-house expertise. It should be the case that the ASA’s published rulings make clear when it has received external advice and that it publishes the details of that advice, and it should be clear from its assessment what influence the advice has had on the ruling. Advertisers subject to rulings should also be told who the expert is and what their credentials are, and they should receive a copy of the expert’s report.

My hon. Friend also raised concerns about the severity of the sanctions imposed by the ASA on his constituent, and he detailed those sanctions in his excellent speech. The ASA can deploy sanctions of varying degrees of severity on advertisers that it regards as non-compliant. There could also be an ultimate referral to a trading standards department if there has been a breach of consumer protection law. It is appropriate for the ASA to consider stronger sanctions when advertisers persistently break the code or ASA rulings. I hasten to add that I am not saying that that is the case with his constituent; I am talking generally. It is important to stress that the enforcement team’s main aim is to bring about compliance with the advertising code, not simply to punish.

Finally, my hon. Friend also commented on the legal status of the ASA, and it is important to emphasise that it is independent from the advertising industry. Its council, which decides whether advertising has breached the advertising code, is an independent jury. Its chairman, and two thirds of council members, are independent of the advertising and media industries. Members are appointed through an open recruitment process, with all positions advertised, and an independent member is appointed by the chair to participate in all council members’ recruitment.

It is true that the ASA is funded by the advertising industry, through levies on advertising spend, but funds are collected at arm’s length by the Advertising Standards Board of Finance and the Broadcast Advertising Standards Board of Finance. That ensures the system’s independence, and that ASA decisions are not influenced by those who may or may not be funding the system. In terms of its legal status, the ASA’s regulatory system is not based on quasi-judicial processes; it is not a court of law and does not seek to emulate the courts through its own processes. The system was deliberately set up as an alternative to the courts, with all the attendant benefits from being a more nimble and agile regulator. Judicial reviews of ASA rulings have endorsed the processes that the ASA goes through.

As with any regulatory regime, there is always room for improvement, and I am told that the ASA would welcome suggestions on how its procedures might be improved. Once again, I make the serious point that Members of this House are experienced; many different constituency cases come across our desks or are raised in meetings. We tend to use our judgment when we want to raise cases in a more high-profile fashion, such as in a debate. Any organisation, particularly one such as the ASA, which has such an important role to undertake, should take note of the fact that three Members of this House have chosen to participate in this debate, with others also sitting in the Chamber. I hope that the ASA will meet them and take on practical suggestions as to how it can improve its processes.

I have no doubt that the ASA is an extremely responsible and effective regulator, and I have praised it in the past for being an exemplar of self-regulation. But, as has been said, there is always room for improvement and the opportunity to refine and improve processes. Given the process that my hon. Friend’s constituent has gone through, which sounds pretty gruelling, it would potentially be satisfying for her at least to see that some of the processes that she underwent might be refined and improved should others find themselves in a similar situation. As I say, we are dealing with an effective regulator, although I of course treat with the utmost seriousness the points that all hon. Members have made tonight.

Question put and agreed to.

House adjourned.