HO 44

 

Memorandum submitted by the Advertising Standards Authority (ASA)

 

 

 

1. Introduction

 

1.1. The Advertising Standards Authority (ASA) is grateful for the opportunity to provide evidence to the Science and Technology Select Committee review into homeopathy. The ASA is happy for this submission to be published and to give evidence, if called.

 

1.2. The ASA is the UK self-regulatory body for ensuring that all advertisements, wherever they appear, are legal, decent, honest and truthful.

 

2. Executive Summary

 

2.1. The protection of consumers is at the heart of the ASA's work. The rules we administer aim to ensure high standards in advertising, by ensuring that advertisements do not mislead, harm or offend.

 

2.2. This response provides

A summary of the UK advertising self-regulatory system.

Details on how the ASA regulates advertisements for homeopathy.

 

2.3. Relevant rules, guidance for non-broadcast advertisers, and summaries of two recent rulings are included in full in the Annexes.

 

2.4. We do not have any recommendations for the Science and Technology Select Committee in this area. There are robust regulations in place for advertising and the low level of complaints indicates that there is no great consumer concern in this area.

 

3. Advertising self-regulation in the UK

 

3.1. More detailed information about the ASA can be found on our website www.asa.org.uk. The website also contains a searchable database of all our adjudications from the past five years.

 

3.2. The ASA is the UK body responsible for regulating advertising in all media. It does this by enforcing the UK Advertising Codes, which are written and maintained by two industry bodies, the Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP).

 

3.3. The ASA accepts complaints from the public and industry about ads that seem to have breached those Codes. It also conducts other activities such as providing training and advice, and proactively monitoring ads in order to keep advertising standards high.

 

3.4. The system is based on a concordat between advertisers, agencies and the media that each will act in support of the highest standards in advertising. Compliance with the Codes and ASA adjudications is binding on all advertisers. It is not a voluntary system.

 

3.5. The system is entirely funded by industry, through a levy of 0.1% on display advertising space and airtime and 0.2% on Royal Mail Mailsort contracts. The levies are collected by two arm-length funding bodies, the Advertising Standards Board of Finance (Asbof) and the Broadcast Advertising Standards Board of Finance (Basbof)[1]. Last year the ASA was awarded 8m to run the system.

 

3.6. The system is both self-regulatory (for non-broadcast advertising e.g. press, poster, cinema, online) and co-regulatory (for TV and radio advertising).

 

3.7. The Codes sit within a legal framework, which means that, where appropriate, they reflect the standards required in law, e.g. the Consumer Protection for Unfair Trading Regulations 2008 (CPRs) for misleading advertising. The Codes also contain additional protections that are not required under law e.g. rules related to taste and decency and social responsibility.

 

3.8. Notably for homeopathic treatments, the Advertising Codes sit within the strict legal framework that regulates medicines. EC Directive 2001/83/EC (as amended by EC Directive 2004/27/EC) on Medicinal Products For Human Use regulates medicines. Only products that have data to show that they have a medicinal effect can obtain a Marketing Authorisation (from the Medicines and Healthcare products Regulatory Agency or the European Medicines Agency) and only products that hold a marketing authorisation may be advertised as a medicine in the UK and make medicinal claims, in line with the product's Summary of Product Characteristics (SPC).

 

3.9. The Traditional Herbal Medicinal Products Directive, 2004/24/EC will, by 30 April 2011, allow traditional herbal products to have their traditional use acknowledged in the market place. By 2011all traditional herbal medicinal products must be registered or removed from sale. Such products will be able to advertise their traditional use, but may not make efficacy claims.

 

3.10. The ASA deals with more than 26,000 complaints per year. Just one complaint can cause the ASA to launch an investigation and remove an advertisement, if the ad is found in breach of the Codes.

 

3.11. The Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP) are the industry committees responsible for writing and maintaining the Advertising Codes.

 

3.12. CAP writes and updates:

The British Code of Advertising, Sales Promotion and Direct Marketing ('the CAP Code'), which governs non-broadcast advertising (e.g. print, poster, cinema, online).

 

3.13. BCAP writes and updates:

The BCAP TV Advertising Standards Code

The BCAP Radio Advertising Standards Code

The BCAP Code on Text Services

The Rules on the Scheduling of Television Advertisements

 

3.14. Final adjudications on investigations are decided by the ASA Council and published on the ASA website. The Council's membership incorporates two-thirds members of the public, one-third advertising experts and is independently chaired by the Rt Hon the Lord (Chris) Smith of Finsbury.

 

3.15. In the event that the ASA upholds a complaint against an advertisement, the advertiser or broadcaster is required to amend, withdraw or schedule the advertisement appropriately.

 

3.16. Advertisers that breach the Code face financial loss from having an ad campaign pulled and loss of reputation through the publication of upheld adjudications.

 

3.17. The vast majority of advertisers comply with ASA rulings straightaway. For those advertisers who refuse to comply, industry and other pressures can be brought to bear. For example, pre-vetting can be imposed and direct marketing companies can have benefits such as Royal Mail bulk-mailing discounts removed. In serious and persistent cases of non-compliance advertisers can be referred to the OFT (for misleading advertising) and broadcasters can be referred to Ofcom. Referrals are rarely required.

 

3.18. The system places a lot of importance on helping advertisers to get their ads right before they are published, through education and pre-publication advice.

 

3.19. For broadcast advertisements, the broadcasters have set up pre-clearance bodies: Clearcast for TV, and the Radio Advertising Clearance Centre (RACC) for radio. These bodies clear ads before they go on air and are very effective at maintaining high standards. However, pre-clearance does not prevent the ASA from investigating or upholding a complaint about a broadcast advertisement.

 

3.20. It would be impossible to pre-clear the many millions of non-broadcast advertisements that appear every year in the UK. However, CAP offers pre-publication advice for non-broadcast advertisers through its Copy Advice team and providing comprehensive online guidance.[2]

 

3.21. The total number of ads about which the ASA receives complaints accounts for less than 1% of all advertising published or broadcast in the UK. The ASA also monitors ads to check levels of compliance and have non-compliant ads removed. Compliance surveys regularly show that the vast majority of advertising is compliant with the Advertising Codes.[3]

 

3.22. The Advertising Codes can be accessed at http://www.cap.org.uk/The-Codes.aspx

 

4. Advertising homeopathic treatments

 

4.1. Broadly, the Advertising Codes contain clear rules that state that advertisers must not mislead consumers, by act or omission.

4.2. The Advertising Codes also require advertisers (and broadcasters) to hold substantiation for the claims they make. The substantiation must be robust and capable of withstanding third-party scrutiny. Mandatory information which must be included can be found in the Medicines and Healthcare products Regulatory Agency's (MHRA) Blue Guide, which can be found on the MHRA website: www.mhra.gov.uk.

 

4.3. As mentioned in 3.8 above products may only make medicinal efficacy claims in advertisements if they hold a Marketing Authorisation. Products registered as a traditional herbal product may advertise their product as having a traditional use, but may not make efficacy claims.

 

4.4. Advertisements for unauthorised products cannot include medicinal or therapeutic claims or refer to a particular ailment. They may only be advertised on an 'availability-only' basis.

 

4.5. This is in line with requirements of EC Directive 2001/83/EC (as amended by EC Directive 2004/27/EC) on Medicinal Products for Human Use.

 

4.6. All the rules specifically relating to homeopathic medicines can be found in Annex 1.

 

4.7. The CAP Copy Advice team offers specific online guidance for homeopathy and this can be found in Annex 2.

 

5. ASA action

 

5.1. The ASA undertakes investigations into advertisements for homeopathy either reactively, as a result of complaints, or proactively, through the ASA monitoring team.

 

5.2. The investigations we have conducted into advertisements for homeopathy focus on three areas:

the efficacy claims in advertisements;

the veracity of the testimonies used; and

whether an ad is irresponsible if it is likely to dissuade consumers from seeking professional medical advice.

 

5.3. The ASA has received 54 complaints about 50 advertisements for homeopathy in the last five years, which led to 11 advertisements being formally investigated, all of which were upheld or partly upheld. One investigation is currently ongoing. Summaries of two recent example rulings can be found in Annex 3; however, all rulings can be found on the ASA website: www.asa.org.uk.

 

5.4. 30 advertisements were either not investigated because there was no problem under the Codes; saw the complaint withdrawn; were referred to CAP for compliance work (this means that we may have had dealings with the claim in the past); or were out of remit (e.g. the complaint related to packaging).

 

5.5. A further eight advertisements were dealt with informally. Informal rulings may occur if the ASA has already publicly ruled on the matter (for example with a different advertiser) and if the potential breach is not considered to be materially harmful. This allows for a speedy resolution and compliance with the Advertising Codes. However, we cannot define the cases as breaches as they have received no formal investigation. Advertisers that go through the informal process are named on the ASA website.

 

5.6. Advertisements for homeopathy represent a very small minority of complaints and investigations. From our complaints and monitoring work, we do not consider that advertisements for such products are of significant concern, particularly in light of the impending formal regulation of all products.

 

5.7. The ASA is grateful for the opportunity to provide evidence to the Select Committee. If the Committee has any questions arising from this response then please do not hesitate to contact me.

 

 

 

Lynsay Taffe

Communications and Policy Manager

 

 

November 2009



[1] www.asbof.co.uk and www.basbof.co.uk

[2] The Advice Online section has articles on advertising of therapies, and the full list of all Advice Online articles can be found at: http://www.copyadvice.org.uk/

[3] The high compliance rate is often demonstrated in the various sector-specific surveys undertaken by the ASA. These surveys can be found on the ASA website at http://www.asa.org.uk/asa/research/