Examination of Witnesses (Question Numbers
480-499)
MR GUY
PARKER AND
MS KATE
STROSS
2 JULY 2009
Q480 Dr Naysmith: Perhaps it is not
being regulated as it is supposed to be. We are told that France
has banned television advertising and sponsorship. Do you know
whether that has had any effect?
Mr Parker: My understanding of
the situation in France is that a law called the Loi Evin
has banned most alcohol advertising since its introduction in
1991. Obviously, you must look at it in the context of France
where historically there have been very high levels of alcohol
consumption and the per capita consumption of alcohol has been
declining for about 40 years. After the introduction of the Loi
Evin the rate of decline in per capita alcohol consumption
got a little worse; it slowed down. I believe that in 1999 the
French Government said that the law had not proved effective.
The main anti-alcohol NGO in France has ostensibly agreed with
that and said the effect has been rather weak but it still supports
the ban on symbolic brands. We must look at the evidence rather
than the symbolism of things like banning advertising and work
out whether or not further restrictions are needed. If CAP and
BCAP decide that they are they will have to look extremely carefully
at those further restrictions to make sure they have the intended
impact. There is a danger that you can bring in a ban on advertising
and the unintended consequence is that advertisers put more of
their marketing spend into things like price competition which
will reduce the price. The ScHARR review has pointed in quite
firm conclusions to the link between price and alcohol consumption.
There is the danger that it can have exactly the opposite effect.
Q481 Dr Naysmith: Would you be in
favour of minimum pricing?
Mr Parker: I do not have a view
on that; I am here to speak for the ASA.
Ms Stross: In the area of broadcast
advertising government has absolute power to impose a ban on alcohol
advertising or the advertising of any other product; indeed, that
was what happened to tobacco. Ofcom looks at this from the perspective
of being a broadcast regulator and not a health regulator so when
it considers the issues related to a ban on advertising or much
stricter restrictions on advertising alcohol we must look at it
from the perspective of our duties which are to protect vulnerable
groups, including in particular the under-18s.
Q482 Dr Naysmith: Health must come
into that, surely.
Ms Stross: Indeed it does, and
that is absolutely the perspective we would have. We also have
a duty to consider the availability of a wide range of broadcast
services to the population and of high-quality programmes. In
deciding what from a broadcast regulator's perspective is proportionate
one must take into account all of those duties and reach a decision
based on all the available evidence. The government if it wished
could choose to take decisions from a different and purely public
health perspective, but we must operate within the powers and
duties we have been given by Parliament.
Q483 Jim Dowd: Mr Parker, your submission
says that the ASA resolved 392 complaints about alcohol ads. What
is your definition of "resolved"?
Mr Parker: As for all complaints
we receive, we carry out an initial assessment to check whether
or not they raise question marks under the codes. Not all complaints
do so.
Q484 Jim Dowd: But if in your estimation
you found one to be groundless you would still mark it down as
a resolution?
Mr Parker: Yes; those are complaints
that have been assessed.
Q485 Jim Dowd: So, "resolved"
really means "dealt with" rather than anything else?
Mr Parker: That is exactly right.
We write back to the complainant and explain in a bespoke letter
why it is we do not share their view that the alcohol ad, or any
ad about which they are complaining, breaches the code. There
is a bit more to it than that. In the vast majority of cases where
we decide not to investigate we must do a reasonable amount of
preliminary work before we come to that view. One of the key things
on which we place a lot of emphasis is to ensure we check our
case handling system that contains all the complaints we have
received over the years so that the determination we make at that
stage is the right one and is consistent with previous decisions.
Q486 Jim Dowd: You say in your submission
that under the new alcohol rules "the ASA has banned 18 ad
campaigns" and since then that number has increased to 20.
Of the almost 400 cases generally you do not say how many complaints
you upheld.
Mr Parker: I do not have that
figure with me at the moment but I can certainly let you have
it.
Q487 Jim Dowd: Perhaps you could
let us have it against the generality of the other 26,000 you
receive and say whether there are more or less complaints and
also the nature of them.
Mr Parker: Yes.
Q488 Jim Dowd: You say that you banned
those 20 ads campaigns under the new rules. Can you give us any
description of what type of ads were banned and why?
Mr Parker: I would be happy to
do so. The issues varied. One point I make at the outset is that
all of those 20 ads or campaigns were banned under the specific
alcohol rules. There were other ads that either featured alcohol
or were for alcoholic drinks with which we took issue under the
general rules. Five of the uphelds were to do with youth culture
and ads that reflected it and we thought might appeal to under-18s.
Eight of them were linked to sexual success, so that was the principal
reason why we banned those ads. In three of them there was a link
with social success, and in four of those cases the issue was
that the ad implied that drinking the particular brand could enhance
your mood or improve your confidence. Those were the results in
terms of the ads and campaigns with which we have taken issue
since the introduction of the stricter rules and they are a pretty
good indication of the four main areas in the specific alcohol
rules where we tend to find problems.
Q489 Jim Dowd: Other than banning
the publication or issue of these particular 20 ads, can you give
the Committee an idea of what kind of penalties there are beyond
that? I am led to believe that you have the power to levy fines.
Mr Parker: We do not but Ofcom
does if we face problems with a particular broadcaster that continues
to air ads that break the codes. The adjudications that we reach
are published every Wednesday on our website. That results in
a lot of adverse publicity for companies that are subject to upheld
decisions. For almost all companies in the alcohol sector adverse
publicity is very unwelcome. They want to be seen as socially
responsible and it costs them dearly in terms of reputational
damage. They cannot run the campaigns again; in some cases they
have to pull ads that they plan to run so there is a cost involved.
If we have particular problems with a company—I am not aware
of it having happened for the past two or three years—we
can require it to pre-vet its non-broadcast advertising with the
copy advice team for a period of time. That is not necessary on
the broadcast side because all TV and radio ads are pre-cleared
anyway.
Q490 Jim Dowd: You say they are pre-cleared.
If they are pre-vetted I do not understand how you can find 20
of them in breach. Why do you not have pre-vetting?
Mr Parker: Not all of those 20
are broadcast. The pre-clearance of TV ads is generally very good
at spotting problems but the ASA council is the final arbiter
of whether or not an ad or campaign complies with the rules. Sometimes
it takes the view that an ad that has been pre-cleared is still
in breach of the rules. I hope you will see from the examples
I handed in earlier that as to some of these whether or not the
ad breaks the rules are judgment calls. The Courage ad is a good
example of that. It is probably the judgment of the man in the
street that that ad is okay, but the average person is unaware
of the strict rules that apply to alcohol advertising. Only when
we tell them about those rules do they appreciate why we have
taken some of the decisions we have. We have reasonably regular
consumer events where we discuss the decisions we are taking not
just on alcohol but across the board with members of the public
and other interested groups to try to get a better handle on whether
we are making the right judgments. One such consumer event that
we held last year in Scotland was focused on alcohol. That gives
us the opportunity to talk the public through the sorts of decisions
we are taking and the rules we are applying. Once they have an
appreciation of the strictness of the rules we get a very good
sounding from them on whether or not we are striking the right
balance.
Q491 Jim Dowd: About which category
of advertising do you get most complaints? Is it a particular
commodity or style?
Mr Parker: I believe that last
year it was leisure which is a broad category that covers a lot
of things.
Q492 Jim Dowd: That would include
travel, holidays and so on?
Mr Parker: That is right. I can
provide you with the official figures in our annual report, but
I believe there would have been several thousand.
Q493 Jim Dowd: Are you saying that
the ASA just adjudicates—or is it a binary function—on
whether or not to uphold a complaint and the only penalties you
impose are whether you allow it to run or it is withdrawn?
Mr Parker: That is typically the
case. They are not the only sanctions available to us. I mentioned
mandatory pre-vetting of non-broadcast advertising. If we have
a particularly recalcitrant advertiser who refuses to comply with
one of our decisions—it has not happened in the alcohol
sector recently—we can send out an ad alert to the media
asking them not to run the ad. That is a sanction that applies
to the non-broadcast side of things; on the broadcast side there
is a different system.
Q494 Jim Dowd: That does not have
mandatory effect, does it?
Mr Parker: It is effective which
is what is important. Effectively it denies space to that advertiser.
They tend to be much smaller companies that are not too fussed
about the fact there is an upheld adjudication against them on
the website. They are not too bothered about damage to their reputation
because they do not have a lot of value built into it. That is
very effective. On the occasions we send out ad alerts inevitably
we find that the advertiser very quickly gets in touch with copy
advice complaining about the ad alert and asking for help to change
the ad so they can run it again. Therefore, it is an effective
sanction.
Q495 Jim Dowd: But if you have to
deal with recalcitrants occasionally whom do you hold responsible
for that? Is it the agency or producer?
Mr Parker: On the non-broadcast
side the advertiser is primarily responsible, but we also expect
agencies and any other intermediaries involved to take responsibility
for ensuring that any advertising they produce on behalf of a
client, or handle if they are providing mailing lists or fulfilment,
complies with the codes. The media who publish advertisements
have a responsibility under the codes and sign up to the system.
They are a very important part of the CAP and BCAP committees
and have a responsibility to make sure that the ads they publish
do not harm, mislead or offend.
Q496 Chairman: I have just looked
at one of the posters you passed to us. Presumably, it got through
and eventually was stopped. It relates to Luxury Reborn Belvedere
Vodka. It was a national press ad. I assume that it was published
and then deemed not fit to be run. How does that square with the
codes of alcohol advertising which refer to linking alcoholic
drinks to sexual success or advertising in the context of sexual
activity or seduction? Who looking at that for the first time
thought it was all right to publish it nationally?
Mr Parker: That was precisely
why we upheld the complaint.
Q497 Chairman: What is the system
that vets it the second time around and not the first time?
Mr Parker: We know from our compliance
surveys that the vast majority of ads that appear comply with
the codes. Where we find compliance rates that are lower than
we would like we take action and respond, but we do not pretend
the system is perfect. Millions of non-broadcast ads and billions
of direct mailings and marketing emails appear each year, so you
cannot conceivably pre-vet them. We spend a lot of time and effort
communicating with the industry including the media so they have
a good understanding of the rules that apply, but that does not
mean ads that break the rules do not appear from time to time;
transparently they do. If they did not we would not be publishing
adjudications every Wednesday that uphold complaints against them.
Q498 Mr Scott: As to the campaigns
that have been banned, how long have they been running before
they are finally banned? On average what sort of time elapses?
Mr Parker: I am afraid I do not
have that figure; it will depend on the nature of the campaign
and on the issue. There are occasions when we will fast-track
complaints including on the broadcast side. We have powers to
suspend ads pending investigation if we think they are very problematic.
It is a judgment call from our perspective. We have to make sure
that if we take that fast-track action and pull ads pending investigation
we have good grounds for it; otherwise, obviously we will lose
in the courts and be liable for damages afterwards. We have a
good record for making those judgments. That can deal with those
ads where there is clearly a problem. In the majority of cases
the judgments are more nuanced and it is less easy to make the
case that there is a blatant breach of the codes. Obviously, those
cases require investigation. We need to provide the advertiser
with the opportunity to defend its ad. If we just banned it outright
we might be subject to a successful judicial review and our decision
would be overturned. The ad would then appear again. Like all
other bodies that do this sort of job we must ensure we follow
due process. Like the vast majority of bodies that do a job similar
to ours we have processes and mechanisms in place to make sure
we can much more rapidly deal with very obvious problematic ads.
Q499 Mr Scott: The current regulations
are focused on controlling content. We have already heard references
to that from both of you. How do you justify that approach when
there is a lot of evidence that it is the volume rather than content
that affects young people's behaviour?
Ms Stross: On the broadcast side,
the data reveals that young people see less advertising now than
they used to. Young people today probably see about 30% less alcohol
advertising on TV than they did back in 2002. There has been a
reduction in the amount of advertising they see and the content
of that advertising is more strictly regulated today than it was
in 2002.
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