Received an adverse ASA decision? The CMA might be coming for you next!

Advertisers sometimes think that they needn't worry too much about investigations by the Advertising Standards Authority, because the ASA can't impose fines. The ASA's primary sanction is the reputational damage that flows from the publication of its decisions, and the amount of adverse publicity that they generate is unpredictable and inconsistent. The death of a senior member of the Royal Family on a Wednesday morning was always your best hope of avoiding any unwanted attention.

Over the years, however, the ASA has worked with media owners, search engines and social media platforms, to ensure that its adjudications are enforced, with offending ads and claims being withdrawn or amended. This can lead to a loss of any return on the investment in campaigns, claims and slogans. With the development of the ASA's Active Ad Monitoring system, the risk of a challenge to online advertising has never been greater. And clients based in the USA have always worried about the class-action lawyers who scan ASA decisions, looking for inspiration for their next opportunity to chase a passing ambulance. 

As the CAP and BCAP Codes enforced by the ASA closely reflect the underlying consumer law, a breach of the Codes will probably also amount to a breach of the law. Occasionally, an upheld ASA decision has been a precursor to action by Trading Standards or the Competition and Markets Authority (CMA), but this has not been a significant worry for most advertisers. 

Now, however, the introduction of the Digital Markets, Competition and Consumers Act, with new enforcement powers for the CMA from 6th April 2025, means that advertisers need to take a challenge by the ASA more seriously than ever before. Why? Because if the ASA challenge leads to an upheld complaint, the advertiser will need to ensure that this doesn't trigger a knock on their door by the CMA, who can now issue penalties itself, without the bother of having to go to court first, if it decides that an advertiser has breached the underlying consumer law.  

Last month, the CMA released its Enforcement Guidance, setting out how it will use its new powers, and which reveals some useful pointers for advertisers. Troublesome adverts can be a sign of a more systemic market problem, which is where the CMA may come in. An example is the online mattress sector.  The ASA investigated the pricing practices of Emma Sleep and upheld rulings regarding them. Since then, the CMA has investigated the sector more widely and extracted undertakings from the likes of Simba Sleep.  It is taking Emma Sleep to court because it won't agree to undertakings (although this is being done under the old law). 

But under the new regime, the CMA could take direct action itself.  And its Enforcement Guidance makes clear that it will take into account whether the ASA has ruled against the advertiser concerned. This means that if you are investigated by the ASA about your advertising, it is important to defend the complaint properly from the outset, by front-loading your defence to give yourself the best chance of success.  If the ASA upholds the complaint and the CMA is interested in the sector, the fact that you have an upheld ruling could work against you. It might even make the difference between the CMA taking civil action and pursuing criminal proceedings. In addition, the upheld ASA adjudication will be considered to be an aggravating factor whereby the CMA will increase any fine it plans to levy.

So if you receive a Complaint Notification letter from the ASA, don't delay in seeking immediate advice to consider your options. Should you defend the complaint, or seek an informal resolution? As well as front-loading your defence, what other procedural steps should you consider in order to give yourself the best chance of success?

But if the complaint is upheld, what should you do to minimize the risk of any subsequent action by the CMA?

• Conduct an audit: Audit all your advertising and marketing materials, across all media, to ensure that you're making similar claims elsewhere. It's also worth checking your advertising more generally, because once you've been caught in the ASA's cross-hairs, it's more likely that it will pick up on other issues as well.
• Level the playing field: Check what claims your competitors are making, so that you can challenge them to ensure that they are not getting an unfair competitive advantage by continuing to make the claims that you've been required to amend or withdraw.
• Train your teams: It is important to train both internal marketing teams and advertising agency teams so that compliance by design can be baked into your systems. If compliant materials are created from the start, it's less likely that things will slip through the net, or that expensive, last-minute amendments will be needed immediately before publication.
• Produce guidance: Easy-to-read guidance notes and checklists should supplement any training and be an important hedge against the inevitable churn in your teams, reducing the risk that vital qualifications and disclaimers are removed by new staff who don't appreciate their significance.
• Check your procedures: Make sure that you have procedures in place so that advertising and marketing materials are checked by a responsible adult before they go live, and allow sufficient time for the requisite amendments to be implemented.

An upheld ASA complaint has always been a serious matter, but now the consequences are much greater, and advertisers must have a plan for remedial action to prevent any follow-on enforcement by the CMA.