Regulator body

Funding
The ASA is funded by advertisers through an arms length arrangement that
guarantees the ASAs independence.
Collected by the Advertising Standards Board of Finance Asbof and the Broadcast
Advertising Standards Board of Finance Basbof, the 0.1% levy on the cost of
buying advertising space and the 0.2% levy on some direct mail ensures the ASA
is adequately funded to keep UK advertising standards high. We also receive a
small income from charging for some seminars and premium industry advice
services.
We receive no Government funding and therefore our work is free to the tax
payer. The levy system means the ASA has the necessary resources to handle
more than 30,000 complaints each year and independently check thousands of
ads every year. In addition, the funding supports CAPs Copy Advice service
which provides pre-publication advice to advertisers, agencies and the media.
The separate funding mechanism ensures that the ASA does not know which
advertisers choose to fund the system or the amount they contribute.
The levy is the only part of the system that is voluntary. Advertisers can choose
to pay the levy, but they cannot choose to comply with the Advertising Codes or
the ASAs rulings. https://www.asa.org.uk/About-ASA/Funding.aspx
About ASA and what they do
The Advertising Standards Authority is the UKs independent regulator of
advertising across all media. We apply the Advertising Codes, which are written
by the Committees of Advertising Practice. Our work includes acting on
complaints and proactively checking the media to take action against
misleading, harmful or offensive advertisements. In this section you can find out
how advertising regulation works, who our key people are and information about
our performance. https://www.asa.org.uk/About-ASA.aspx

How does self-regulation of non-broadcasting advertising work?

Self-regulation means that the industry has voluntarily established and paid for
its own regulation.
The system works because it is powered and driven by a sense of corporate
social responsibility amongst the advertising industry. Advertisers have an
interest in maintaining the system because:
Making sure that consumers are not misled, harmed or offended by ads helps to
maintain consumer confidence in advertising. Advertising that is welcomed by
consumers is good for business.
It maintains a level playing field amongst businesses. It is important for fair
competition that all advertisers play by the same rules.

Maintaining the self-regulatory system is much more cost-effective for

advertisers than paying the legal costs of a court case.
The role of the industry is to write the Advertising Codes, help advertisers to
comply with the rules and to pay for the system.
However, the industry does not administer its own rules. It has established the
Advertising Standards Authority (ASA) as the independent adjudicator.
Advertising self-regulation is flexible in its scope and is able to adapt to market
conditions. This is particularly important in the fast-moving advertising industry.
The Code reflects requirements in law, but also contains many rules that are not
required by law at all. The advertising industry has chosen to exercise this selfrestraint not only to make further legislation unnecessary, but also as a public
demonstration of its commitment to high standards in advertising.
Because the system works successfully, the UK Government has not needed to
regulate directly. However, that doesnt mean that the views of politicians or
civil society and the wider industry - on advertising regulation are unimportant,
so we actively seek out their views on our work.

How does regulation work after an advertisement has appeared and what
sanctions can the ASA impose?
The Independent Review process provides for decisions of the ASA Council to be
considered again in certain circumstances when there is evidence that we have
not got the decision right and/or the process by which we made that decision.
The process is open to advertisers, complainants or broadcasters who have been
a party either to a Final Ruling of the ASA Council or a Council decision not to
further investigate a complaint beyond initial assessment.
A party has 21 days from the date on the ASAs letter of notification of the final
decision to ask the Independent Reviewer of ASA rulings, Sir Hayden Phillips, to
review the case.
The Independent Reviewer can only accept the request if one or both of the
following tests is established:
a substantial flaw of process and/or ruling
additional relevant evidence is available that could not reasonably have been
made available during the investigation
Advertisers, complainants or broadcasters contemplating a request for review
should study the relevant terms of reference carefully, ensure that they are
signed by the appropriate person and submitted in time and in writing to:
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 Code rests with the broadcaster,
advertisers also suffer consequences if their broadcast ads breach the Code.
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 Code, advertisers might lose prime advertising slots in which a banned ad
has been booked to appear.
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.
https://www.asa.org.uk/Industry-advertisers/Sanctions/Broadcast.aspx

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, CAPs 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 prevetting can last for two years.
Sanctions in the online space - 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. Read more here.
For misleading or unfair advertising, ultimately if advertisers and broadcasters
persistently break the Advertising Codes and dont work with us, we can refer
them to other bodies for the further action, such as Trading Standards or Ofcom.
See our Trading Standards enforcement leaflet for examples of the sanctions
available to our legal backstop, Trading Standards.
Such referrals are rarely necessary, as most advertisers prefer to resolve the
matter directly with us.
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.
In addition to the non-broadcast 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.

https://www.asa.org.uk/Industry-advertisers/Sanctions/Non-broadcast.aspx

CAP can ask internet search websites to remove a marketers paid-for search
advertisements when those advertisements link to a page on the marketers
website that hosts non-compliant marketing communications.
Marketers may face adverse publicity if they cannot or will not amend noncompliant marketing communications on their own websites or in other non-paidfor 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.
Visit the non-compliant online advertisers page.
View examples of ASA online sanctions here on the CAP site (opens in a new
window).
Click here to read the other non-broadcast options which are also available to
CAP for online advertising.
these include referral to other bodies for the further action, such as Trading
Standards or Ofcom for misleading or unfair advertising.
See our Trading Standards enforcement leaflet for examples of the sanctions
available to our legal backstop, Trading Standards.
https://www.asa.org.uk/Industry-advertisers/Sanctions/Online.aspx
The ASAs designation by Ofcom of regulating Video-on-demand advertising
means that we have access to a 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 https://www.asa.org.uk/Industryadvertisers/Sanctions/Video-on-demand.aspx

I got all this information from https://www.asa.org.uk/

Barnardos, 2008
The ASA received 840 complaints about this Barnardos ad campaign, which was
designed to raise awareness of domestic child abuse.
The TV campaign featured repeated scenes of violence and drug-taking, which
many viewers found upsetting and not suitable for broadcast at times when
children were likely to be watching.
We did not doubt the distress or offence described by many of the complainants.
However, we considered the ads were appropriately scheduled and their aim
justified the use of strong imagery.

https://www.asa.org.uk/~/media/Files/ASA/Adcheck/Ad
%20Banks/Harmful/Harmful%20advertising.ashx

Tesco Stores Ltd

Tesco House
Delamare Road
Cheshunt
Hertfordshire
EN8 9SL

Date: 4 September 2013

Media: National press
Sector: Retail

Number of complaints: 2
Agency: Wieden & Kennedy UK Ltd
Complaint Ref: A13-224880

Background

Summary of Council decision:

Two issues were investigated, of which one was Upheld and the other was Not
upheld.

Ad

A two-page national press ad for Tesco:

The first page stated "What burgers have taught us". The second page stated
"The problem we've had with some of our meat lately is about more than burgers
and bolognese. It's about some of the ways we get meat to your dinner table. It's
about the whole food industry. And it has made us realise, we really do need to
make it better. We've been working on it, but we need to keep going, go further,
move quicker. We know that our supply chain is too complicated. So we're
making it simpler ... Seriously. This is it. We are changing".

Issue

Two complainants, one an independent butcher, challenged whether the claim

"It's about the whole food industry":

1. was misleading because they believed it implied there were issues with meat
standards across the whole food industry; and

2. it unfairly denigrated food suppliers who had not been implicated in the supply
of mislabelled meat products.

CAP Code (Edition 12)

3.1

3.42

3.7

Response

1. Tesco Stores Ltd (Tesco) said the ad was published to show it was taking the
horse meat issue seriously and to demonstrate it was listening to customers.
They said they were proactive in issuing the communication to the public, which
showed their commitment to customers to make the supply chain shorter, less
complex and more transparent.

Tesco said that at the time the ad appeared, the media were naming on a daily
basis, specific operators who had been directly implicated in the selling of
horsemeat and there had been no suggestion from the media, Government, the
Food Standards Agency or anyone else that all those in the food industry were
likely to be associated with the scandal.

Tesco said they accepted that not everyone in the food industry had been
implicated in the selling of horse meat. They said the ad focused solely on Tesco
and this is how the average consumer would interpret it, which was reinforced by
wording such as "The problem we've had", "our meat" and "the ways we get
meat to your dinner table". They said there was no reference to any other
producer, retailer or supplier and they had not attempted to shift or share the
blame for the issues that Tesco faced. They said the use of the word 'about'
rather than 'involves' or 'implicates' emphasised the problem related to the food
industry in general and had not pointed the finger at other specific operators.
They said the text that followed the claim focused exclusively on the more
general supply chain and food industry issues. Furthermore, they said the claim
acknowledged that Tesco had not operated in a vacuum and the meat
contamination problem they and others had encountered was due to systemic
failings in the food supply chain which had serious consequences for Tesco.

Tesco said if the problem was one of cross-contamination then any retailer or
butcher was at risk of selling contaminated meat unless they sold only one
species of meat which was highly unlikely. Tesco said almost every retailer and
institution was being investigated for contamination and this included, for
example, supermarkets, schools, hospitals, prisons and some retailers. They said
each time testing was rolled out into another sector, further contamination was
found and until testing had been completed, nobody would know whether there
was contamination, including at independent butchers. They added that it was
impossible to say there had been no contamination in that sector. They also said
that a report said horse meat had been sold as beef on a market stall by
Lancashire County Council.

Tesco submitted an opinion from an expert who provided analytical and advisory
support to major retailers. The expert said the problem alluded to in the ad could
and did affect the whole food industry, and was not limited to one particular
sector. They said their opinion was supported by the views and action of the
European Commission and legislation would apply to the whole European food

industry. Their expert said although small businesses sourced locally, which
mitigated long and complex food chains, they did suffer as they did not have the
resources to test and audit suppliers. He said small retailers, such as butchers,
bought in ready-made products, which increased the complexity of the food
chain and exposed them to the same threats as other retailers.

2. Tesco said they did not accept that the ad unfairly denigrated food suppliers
who had not been implicated in the supply of mislabelled meat products because
the ad would be understood to refer to Tesco only, because it had not referenced
other marketers and so could not be denigratory to the whole food industry.
Tesco reiterated that consumers would understand that the ad referenced the
serious consequences for Tesco, not for other retailers.

Assessment

1. Upheld

The ASA noted Tesco's assertion that the ad would have been interpreted as a
reference solely to their own contamination issues. We considered that despite
the use of words such as "we" and "our" in the preceding sentences, the ad
made a definitive statement, "It's about the whole food industry". We considered
that the omission of "we" or "our" from that sentence made it stand out from the
surrounding text and informed readers' understanding of the rest of the ad.
Therefore, we concluded consumers would understand the ad referenced all food
retailers and suppliers, rather than Tesco alone.

We noted Tesco's expert's assertion that new legislation would cover the whole
food industry, and that the problem was not isolated in only one sector, but we
did not consider this apportioned blame across all producers and retailers. At the
time the ad appeared, investigations into food contamination at many retailers
and producers had not been concluded and the fact that investigations had
begun did not mean those companies were involved in the selling or production
of contaminated products. We understood that while some products had been
sold, contaminated with meat not shown on the label, this was not widespread as
only a small number of products had tested positive for horse meat and others
had tested negative.

Because the ad implied that all retailers and suppliers were likely to have sold
products contaminated with horse meat, and because relatively few instances of
contamination had been identified at the time the ad appeared, we concluded
the ad was misleading.

On this point the ad breached CAP Code (Edition 12) rules 3.1 (Misleading
advertising) and 3.7 (Substantiation).

2. Not upheld

We noted Tesco's assertion that the ad had not referenced other marketers. We
also considered that in an industry with numerous businesses, no one marketer
or product could be identified. Because another product or marketer was not
named, we concluded the ad was not denigratory.

On this point we investigated the ad under CAP Code (Edition 12) rule 3.42
(Imitation and denigration) but did not find it in breach.
https://www.asa.org.uk/Rulings/Adjudications/2013/9/Tesco-StoresLtd/SHP_ADJ_224880.aspx#.WG-ZxGdiiUk