Memorandum from the Advertising Standards
Authority (DGB 8)
INTRODUCTION
The Advertising Standards Authority (ASA) and
Committee of Advertising Practice (CAP) are responsible for maintaining
the highest standards in non-broadcast advertising in accordance
with the British Code of Advertising, Sales Promotion and Direct
Marketing. The CAP Code (the Code) applies to all non-broadcast
marketing communications in the UK, covering such media as print,
posters, sales promotions, direct mail, SMS and internet advertising.
The Code, adjudicated on by the ASA, requires
all marketing communications to be "legal, decent, honest
and truthful". They should be prepared with a sense of responsibility
to consumers and to society, and should respect the principles
of fair competition generally accepted in business. The Code,
and the ASA's interpretation of it, is the standard to which all
organisations involved in non-broadcast advertising in the UK
defer. Although the system is non-statutory, participation in
it is mandatory by virtue of the agreement of advertisers, agencies
and media to maintain common standards.
More information about the ASA and CAP are available
on their respective websites www.asa.orp.uk and www.cap.orcvuk.
We welcome the opportunity to make a submission
to the Joint Committee following its call for evidence on the
draft Gambling Bill. This response is submitted on behalf of both
the ASA and CAP and confines itself solely to those parts of the
proposed legislation that deal with the future regulation of betting
and gaming advertising. As the specific draft clauses on gambling
advertising have yet to appear, the remarks that follow are based
on the policy instructions as published on 9 April 2003.
SPECIFIC REMARKS
The ASA and CAP whole-heartedly accept the need
for adequate and appropriate controls to exist with regard to
the administration and licensing of gambling. We are, however,
unpersuaded of the need for the Gambling Commission to create
a separate advertising code and establish a parallel complaints
investigation system under the Commission, as appears the intention
at present. Indeed, the development of sector-by-sector advertising
regimes would be contrary to the interests both of consumers and
fair competition, and inimical to the effective maintenance of
consistent standards.
The construction of a parallel code and adjudicatory
process as proposed in the policy instructions is likely to raise
issues of double jeopardy, and create significant uncertainty
for consumer and business alike as to the division of responsibility
across regulators. Further, this duplication of structures and
purposes seems very much contrary to the intent of government
as expressed by the Better Regulation Task Force and its principles
of best practice regulation.
The CAP Code contains a section dealing specifically
with betting and gaming—reflecting current legislation about
the advertising of gambling—and we have consequently developed
a significant expertise handling complaints on this issue (summarised
in Appendix 1). The CAP Code also covers a range of issues not
specific to gambling—taste and decency, for example—but
which may apply to betting and gaming advertisements, and will
not be dealt with in the proposed Gambling Commission Code.
Despite the advertising remit of the Gambling
Commission being partial, any competence in this area would nonetheless
require it to spend considerable sums on establishing an internal
unit to investigate and adjudicate on advertisements. We understand
that it is proposed to model this on that of the Financial Services
Authority, a body that is criticised by consumers and advertisers
alike as slow, burdensome and lacking in transparency and user-friendliness.
In its more than 40 years of operation, the
ASA-CAP system has built a reputation as a leading example of
effective industry self-regulation. It is responsive (in 2002,
complaints were resolved in an average of 27 days), adaptable
to emerging technologies, accessible and cost-effective. Confidence
in the system is such that Ofcom has recently proposed this as
the model to be used for the future co-regulation of broadcast
advertising. In this connection, you will note that the trend
is towards the convergence of advertising regulation rather than
its further fragmentation.
The ASA's ability to deliver these benefits
and protections to the consumer is greatly assisted by the existence
of a power of referral to the OFT under the Control of Misleading
Advertisements Regulations (CMARS). Thus while the ASA is recognised
as the primary "established means" in its implementation—dealing
with more than 99 per cent of complaints about misleading advertising
in the non-broadcast sector as a result—the legal backstop
of the OFT under CMARS provides the strong legislative underpinning
that ensures the maintenance of the self-regulatory system.
It is the adoption of a similar backstop model
that we commend to the Committee in its consideration of the draft
Gambling Bill. Such a model would retain last-resort sanctions—such
as the withdrawal of licences—for the Gambling Commission
whilst ensuring that complaints about the advertising of gambling
are dealt with in a timely and proportionate manner by the established
and universally recognised regulator of advertising in the UK,
the Advertising Standards Authority. Should minor Code changes
be required to reflect the new gambling legislation, these would
be considered by the Committee of Advertising Practice.
We have met with the DCMS on two occasions since
the publication of the policy instructions to discuss this solution.
Although these meetings have proved both positive and constructive,
we consider it useful to bring these suggestions to the attention
of the Joint Committee.
December 2003
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