So what old chestnuts did Guy and Brinsley roast by the open fire this year?

Yesterday, it was my pleasure to welcome Guy Parker, CEO of the Advertising Standards Authority for our annual “fireside chat” webinar.  We discussed various hot topics and priorities for the ASA.

Political advertising regulation?

Since last year’s fireside chat, we’ve had elections in the UK and US and so I asked if the ASA might introduce some regulation of election advertising before the next election in 4- or 5-years’ time. Guy said the chances are low, as there is little appetite for change from political parties or the ASA itself.  He pointed out that the Office for Statistics Regulation already check politicians’ claims during elections, so the area isn’t entirely unregulated. He also said that the ASA did not receive a single journalistic query about political advertising around this year’s election – probably because it was a snap election and the result a foregone conclusion. We also agreed that misleading election advertising probably has more impact around a referendum rather than a general election, due to its binary nature. 

Advocacy advertising – “political” with a small p

I asked about campaign groups using the ASA to further their aims after seeing ads on the Tube aimed at influencing the assisted dying debate. Guy explained that the ASA doesn’t feel gamed by campaign groups trying to exploit it, and it’s not a new phenomenon – he mentioned obesity campaigners making complaints about food advertising. Because they know their areas of interest and the CAP and BCAP Codes so well, campaign groups can get good outcomes for consumers. However, they can also game the system when they breach confidentiality by leaking draft rulings for PR effect.  Guy confirmed that the ASA may not share Draft Recommendations or final Rulings under embargo, or it might even refuse to accept a complaint, if it thinks campaign groups will breach confidentiality – and these measures have been implemented in the past.

The Digital Markets, Competition and Consumers Act and the ASA’s approach 

I asked if the ASA might make greater use of the Competition and Markets Authority as a de facto backstop when the DMCC Act comes in force, given the CMA’s enhanced powers to enforce consumer law. Guy replied that the CMA would not want to become the ASA’s backstop by default.  The CMA prioritises where it operates, and its consumer protection role relates to systematic practices, rather than wrong doing by individual advertisers.  The ASA’s “knotty issues” necessarily don’t involve systematic issues. 

Nevertheless, the CMA will have punchy new powers under the Act and it plans to use them (judiciously). If the CMA has recently been in touch and you haven’t complied, it’s time to get worried!  CAP and BCAP will be updating their codes to reflect the new requirements in the Act regarding unfair commercial practices, fake reviews and subscription traps.

CMA guidance on discount pricing claims and reference pricing

Next, I asked about the CMA’s new pricing guidance for online traders which covers time and volume elements for reference pricing claims.  There are tensions between the CMA’s guidance and the CAP Code rule that promoters must set, and stick to, closing dates.  This is because the CMA’s guidance says that once you’ve sold twice as many items at the new price as you did at the old price you have to end the promotion (even if the closing date was later) – or at least stop using the original price as a reference price for comparison. 

Guy said this raises issues about the interrelation between CAP sales promotion rules and pricing rules more broadly and the fact that prices of items change all the time. CAP has updated its advice to signpost the CMA guidance. A pricing in advertising expert group (which includes the CMA and trading standards) is due to meet in early 2025, after which the ASA will consider its own guidance and rules. 

Greenwashing and greenhushing

Advertisers need the guidance and certainty to make green claims, provided the basis of the claim is clear, and they have good underpinning evidence.  If this doesn’t happen the public isn’t well informed about how to make sustainable choices so that the UK can meet its climate change targets. Advertisers can play a huge role in influencing the choices consumers make.

I mentioned the Virgin ruling where it claimed to have used 100% sustainable aircraft fuel to fly over the Atlantic. The ASA applied the average consumer test and Virgin’s own surveys showed that there is a lot of confusion around sustainable fuel. The fact that it was a radio ad was also relevant as it was a difficult medium through which to convey the relevant information.  The message needs to be developed with the medium in mind. 

Next, I asked about the EU’s Empowering Consumers for the Green Transition Directive and the upcoming Green Claims Directive and if the ASA might import some of the new rules into the codes.  Guy thought probably not – he said that the EU has quite a prescriptive view to regulation and said it would be disappointing if EU rules adversely affect businesses’ willingness to shout about their sustainable products. 

However, Guy reiterated that there are many problems with greenwashing – the ASA had published a ruling about Wizz Air on the morning of the Fireside Chat, which my colleague Geraint wrote about here. The rules have been around a long time and Guy said Wizz Air could have avoided the upheld ruling by clarifying the basis of the claim and providing verifying information. 

AI and future projects

Guy talked about the ASA’s Active Ad Monitoring System which scans 3.5 million ads a month! It looks at green claims, undisclosed influencer ads, medical claims unauthorised investment claims, alcohol, gambling and vaping. 

The ASA is also looking at the use of the term AI in advertising.  Guy also talked about how the ad industry uses AI to personalise advertising on a hyper-targeted basis and if consumers need to be told that AI has been used to create content – either at the creation stage or for the ad itself. Guy wondered if having labels about AI could be counter productive, as people would screen out the labels or wonder what they were about.

Looking forward to the ASA’s priorities for 2025, Guy said the ASA will also be focusing on “greener homes” claims next – including installing solar panels. 

Finally, following consultation, the ASA is working on its guidance on the new rules about advertising less healthy foods – it is challenging to deal with the burred boundary between less healthy foods and brand advertising.  This is important for food businesses and broadcasters. And despite my memory lapse during our chat, we did cover this topic some time ago here.

I’m very grateful to Guy for giving up his time and generously sharing his insights for our fireside chat each year. I hope everyone enjoyed it and thank you to everyone who submitted a question in advance or during the event itself. If you were unable to join us for the live stream, you can watch the recording here.