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The dog with a bigger bite

The ASA is about to get new powers over advertising. So should advertisers be on their guard? Legal and brand guru Ardi Kolah investigates.

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From November 1, the Advertising Standards Authority will take over responsibility for self-regulating broadcast advertising content from Ofcom. The ASA already has jurisdiction over non-broadcast advertising content, so this effectively turns it into a one-stop shop for advertisers as well as the public.

One stop shop

Under the new system, a new advertising industry committee, Broadcast Committee of Advertising Practice, will be responsible for setting, reviewing and, if necessary, revising the broadcast advertising Codes.

The ASA will receive and respond to complaints about television and radio commercials -- work previously carried out by the former Independent Television Commission and Radio Authority. Broadcast adjudications will be by a new legal entity, ASA(B). They may need some help in branding the new service.

The new structure was supported by the advertising industry task force and will be funded by a 0.1% voluntary levy on broadcast advertising space costs, to be collected by the Broadcast Advertising Standards Board of Finance (Basbof). They too could do with some branding advice.

Ofcom's role is now to provide a "legal backstop" enforcing compliance with the broadcast Codes and with ASA decisions through their licensees -- the TV and radio broadcasters. This remains the ultimate big stick in the face of defiance from advertisers and broadcasters to toe the ASA line.

Ofcom will retain its legal powers, requiring BCAP to seek Ofcom's consent before changing the broadcast advertising codes. Ofcom will also retain the power to make code changes itself, although it wouldn't normally seek to do so (says its website). Time will tell.

Ofcom's remit won't extend to the self-regulation of non-broadcast advertising -- this will continue to be supervised independently by the ASA, with the Office of Fair Trading providing the legal backstop for misleading ads.

Copy clearance remains the same

Copy clearance for specific broadcast advertisements will remain the responsibility of the Broadcast Advertising Clearance Centre or the Radio Advertising Clearance Centre. So no change here.

A dog with a bigger bite?

So it seems that the advertising industry as a whole thought that it was a neat idea to bring all advertising regulation under one roof, and create a single point of contact for complaints about advertising -- both from the perspective of the industry and consumers.

"With the growing convergence of media ownership and technology, consistency of decision making in the field of advertising is essential," explains leading media and advertising lawyer Jonathan Coad. "And the only way to achieve that is for it to be regulated by one body," adds Coad.

Clearly, there must be consistency in the development and enforcement of emphasising standards across broadcast and non-broadcast media, which makes it easier to deliver coordinated multimedia advertising campaigns across the various means of content delivery. That must be good news for advertisers.

Practical implications for advertisers?

The hope and prayer is that by having all advertising compliance under one roof it will speed up the adjudication process.

"I made two of the earliest complaints to Ofcom on behalf of a client which have been dealt with extraordinarily tardily," moans Coad.

"The first complaint took a total of 10 months to obtain an adjudication. The second complaint has now been awaiting a determination for four months, with no sign of an adjudication yet."

"The ASA will be of little use to either advertisers or consumers if it doesn't fulfil its function in a more efficient way. And the ASA has a much better record of moving quickly when asked to assess complaints than Ofcom's first attempts to fulfil its functions", according to Coad.

The other likely impact for advertisers is one of visibility.

The work of the ASA finds its way much more commonly into the media than the work of Ofcom has so far.

One reason is the ASA is often used as a means of one brand owner rival seeking to punish another for trying to gain unfair commercial advantage in breaching the ASA codes.

Doubtless the winning party then deploys its sizeable PR budget to trumpet the success of a complaint against a rival, thus ensuring that when the ASA does speak, its pronouncements are then transmitted through the megaphone of the popular media.

The ASA has proved itself over a period of four decades now, and proved itself able to tackle even the biggest advertisers without the necessity of having statutory powers to deploy.

Up until now, the ASA has managed to be a robust regulator for advertising across all media except TV and radio.

And given the apparent assumption of large numbers of the general public that the ASA does already regulate television and radio advertising -- this latest move points to the appropriateness of the ASA adopting to its new role. Woof woof!

Ardi Kolah appears on the Chartered Institute of Marketing's global top 50 list of leading marketing thinkers. He is author of 'Essential Law for Marketers' (Butterworth Heinemann, £25.00). Read the review of the book on Brand Republic and order your copy online here.

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