Complaints to the Advertising Standards Authority can be an effective way for animal advocates to hold animal industries to account. However, standards cut both ways, so animal protection campaigners or cruelty-free companies, particularly those who make bold or controversial claims in their adverts, risk finding themselves on the defensive. In this blog, Advocates for Animals paralegal, Sam March, and food science and legal blogger, Imogen Allen, provide a brief introduction to advertising standards and discuss cases that have made headlines in recent years.
What are advertising standards?
In order to protect consumers, people advertising products cannot just say whatever they like about the things they are selling.
Marketing communications are regulated by a patchwork of “hard” law and “soft” law. Advertising content can have implications in contract law, and fraudulent statements can give rise to tortious or even criminal matters. Much of the blackletter law underpinning advertising standards can be found in the provisions of regulations such as The Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277) (CPUT) or The Business Protection from Misleading Marketing Regulations 2008 (SI 2008/1276) (BPR). These regulations impose binding legal duties and sanctions that can be enforced by statutory regulators, such as Ofcom (for broadcast communications) or Trading Standards (for non-broadcast advertising).
In reality, however, the first course of action for anyone concerned about the content of an advert will generally be to complain to the Advertising Standards Authority (ASA). Advertising standards complaints are sometimes called a form of “soft” law. This is because, unlike Ofcom or Trading Standards, the ASA is a “self-regulatory” body – meaning the industry has voluntarily established and paid for its own regulation. The ASA applies the provisions of two self-regulatory industry codes, written and issued by the Committee of Advertising Practice (CAP). These are The UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) and The UK Code of Broadcast Advertising (BCAP Code).
The advertising standards system in the UK, therefore, blurs the lines between state regulation and self-regulation. Although the ASA is technically an industry-led body, it operates closely with the state regulators and can, if necessary, refer cases to them. The system has been described as “self-regulation within a co-regulatory framework.”
Who can complain and what can they complain about?
The general public, competitors, or other groups with an obvious interest (such as campaigning organisations) can lodge complaints with the ASA. Despite being industry-led, the ASA’s codes and rulings are not something that advertisers can opt-out of; this means that any advert within the ASA’s remit can potentially be the subject of a complaint.
This remit is broad, and includes adverts in the press, on radio, TV, cinema, digital platforms, posters, billboards, leaflets, brochures and even direct mail, email and text messages. It should be noted, however, that the ASA is not the appropriate body for complaining about editorial content, fly posting, some types of medical advertising, or political advertising where the purpose of the ad is to persuade voters in a local, national or international electoral referendum. For in-store advertising or shop window displays, the situation is complicated and will often need to be reported to Trading Standards, although the ASA can look into complaints where leaflets in store are handed out to be taken away, or sales promotions appear in the window.
The types of things that can be complained about also vary and there are differences between the rules for broadcast and non-broadcast advertising. In general terms, the sorts of things that can be complained about include, inter alia, adverts that are misleading (or likely to be), adverts that cause serious or widespread offence, adverts that cause excess distress without justifiable reason, and adverts that cause harm in other ways (including for instance, TV ads that harm animals in their production.)
What powers does the ASA have?
The ASA is not a court, and so does not have the same powers as a court would to grant remedies or enforce sanctions. Nevertheless, if the ASA finds that the rules have been broken, it can declare that the advert must be withdrawn or amended. Most advertisers will quickly comply.
Where an advert is broadcast, it will be a term of the broadcaster’s licence that it complies with ASA rulings at the risk of being referred by the ASA to Ofcom. For non-broadcast adverts, the CAP can issue “Ad Alerts” to members, such as Royal Mail, who could, in turn, withdraw its bulk mail discount. Similarly, the ASA can ask paid search websites to remove adverts or refer Video-On-Demand providers to Ofcom.
One of the most effective sanctions, and a real incentive to campaigning groups seeking to use advertising standards to hold industry to account and raise awareness, is the adverse publicity that marketers risk when they break the rules. The ASA website has a section dedicated to breaches of the rules and will publish the name of the advertiser and the details of the breach: these are often picked up by the news, or appear high up in search engine results when the advertiser’s name or product is searched.
How difficult is it to make a complaint?
Making a complaint is not like bringing a court case. Someone with a potentially meritorious complaint need not necessarily be deterred by the same evidential issues, cost or resource concerns that sometimes apply when considering litigation.
One significant advantage is that the ASA complaints process partially reverses the burden of proof in some cases. Rather than the onus being on the person making the complaint to prove breaches, companies that make absolute statements about things such as animal welfare have to be able to produce evidence to back their claims up. For example, an advert which claimed that none of an advertiser’s cows suffered from mastitis was found to be misleading because the advertiser did not supply the ASA with evidence to substantiate the claim [HaLove, 1 May 2013]. This means that if you have a reasonable suspicion that something is false or misleading, you can potentially complain successfully even if you do not have any evidence to substantiate it.
Advertising standards complaints are also likely to be much cheaper than court cases because it does not cost anything to lodge a complaint. If the complaint makes it through the filtering process and is assessed favourably against the ASA’s prioritisation principles, then it will be the ASA who takes on responsibility for any investigations and puts the case to the ASA Council (an independent jury) for a final decision and ruling. It is possible to get through the whole process without paying a penny.
Nevertheless, it may be wise to consult a lawyer to discuss the merits of your complaint so as to maximise the chances of it making it through the filtering process and to avoid the disappointment of having your complaint backfire, thus accidentally giving good publicity to the advertiser in question.
How long does the process take?
The ASA tries to resolve complaints as quickly as possible, but the time it takes to resolve a complaint can vary significantly depending on the merits and complexity of the matters in issue. For instance, unmeritorious or misdirected complaints may be resolved in a few days, whereas complex cases can take six months to complete. The ASA helpfully explains the 11 step process on their website.
Why should animal advocates care?
Many low-welfare animal industries are driven by profits and consumer demand. For instance, the profits associated with ever-increasing demand for cheap meat continues to drive the intensification of farming; the number of large industrial-sized pig and chicken farms in the UK continues to rise, with close to 2,000 currently across the country. It is not easy for businesses to reconcile this with the growing perception that farm animal welfare should be protected and improved or the fact that animal-friendly products are perceived to be healthier, safer, tastier, more hygienic, authentic, environmentally friendly, and traditional by many consumers.
It is clear, therefore, that there is an incentive for advertisers to make positive claims, or give favourable impressions, about the welfare properties of animal products that could be false or misleading. As campaigning group Compassion in World Farming explains:
“it’s not in the interests of the government or the food industry for consumers to get wise to the miserable reality of much of today’s farming – after all, people might simply refuse to buy certain products.”
ASA complaints are potentially a powerful tool that can be used by animal advocates to prevent companies from making misleading claims and to publicly name and shame false advertisers. In the case of ten recent complaints against BKUK Group Ltd t/a Burger King, 15 April 2020, three adverts promoting the supposedly “plant-based” “Rebel Whopper” were considered to be misleading. This was because they gave the impression that a burger was suitable for vegetarians and vegans, despite containing mayonnaise and being cooked alongside animal products.
In the case of Organic Trade Board t/a Why I Love Organic, 13 July 2011, the ASA upheld complaints against an ad that suggested that organically farmed animals experienced better conditions than non-organically farmed animals. Although the advertiser provided evidence that showed organically farmed animals experienced high animal welfare conditions, the ASA did not consider that it showed that in all cases that organically farmed animals experienced better conditions than non-organically farmed animals.
In the case of Waitrose Ltd, 20 October 2010, the ASA upheld complaints against a press ad which described pigs as “outdoor bred”, because the pigs used to produce the product did not spend the duration of their lives outdoors. The ASA’s approach was to consider how the ‘average consumer’ would interpret an ad, so even though the advertiser argued that there was a technical distinction (in industry speak) between “outdoor bred” and “outdoor reared”, the ASA considered that the average consumer would not be aware of this and would have considered the ad misleading.
Animal products can also be the subject of successful complaints where they make claims about other issues, such as the environment. In Arla Foods Ltd 07 June 2017, a claim that organic milk was “good for the land” and “help[ed] support a more sustainable future” was held to be misleading. The ASA did not consider that the respondent “had substantiated that organic milk production had an overall positive impact on the environment, taking into account its full life cycle”.
What about complaints against animal protection campaigners?
Being on the losing side of a ruling can harm a campaign’s credibility, be humiliating for the advertiser, and provide fodder for their adversaries. So, Animal protection groups, particularly campaigning ones, need to be wary of the rules when considering what claims to make in their own content.
For instance, the ASA upheld a complaint against People for the Ethical Treatment of Animals (PETA) Foundation, 04 September 2019 last year, challenging the claim that “wool is just as cruel as fur”. The ASA considered DEFRA’s Code of Recommendations for the Welfare of Livestock: Sheep. Based on the provisions of the code it held “that the main method of obtaining wool from sheep by shearing would not be regarded by consumers as being cruel”.
This does not mean that provocatory statements should necessarily be avoided at all costs. In fact, when a campaigning group is successful in seeing off a complaint, particularly where the message is provocatory, this can be a vindication of that campaign’s central message. Examples of this include the ASA Ruling on Eden Farmed Animal Sanctuary t/a Go Vegan World 26 July 2017, in which an advert which included the central message “Humane milk is a myth. Don’t buy it” was not found to breach the rules. It was of great value to the campaign that the ASA, an objective, mainstream body, found that it was not misleading to say that there is no such thing as humane milk. Findings such as this make their way into the press and spark important conversations on social media.