1. Food and Drink Innovation Network
A guide to the advertising rules and regulations for the food industry
11th December 2007
Maria Donde
Committee of Advertising Practice

2. This morning: How is advertising regulated?
Key principles of advertising regulation and factual, health related claims: knowing the rules
Functional foods: Significant ASA decisions
Help and advice for advertisers and marketers
The ground that we’re going to cover this morning will include the following:
A broad and hopefully not entirely un-interesting look at how the ASA and its sister organisation CAP work and how together they regulate UK advertising. We’ll move on to look at the general principles of the broadcast and non-broadcast rules and the fundamentals you should really bear in mind to ensure that your ads remain compliant. Looking specifically at substantiation, and why it’s important to get claims right and appropriate in food advertising – particularly where claims of health benefit are concerned.
Then – working with CAP etc.

3. How is advertising regulated?

4. ASA Broadcast
Regulates TV and
radio ads under
contract from Ofcom
Basbof
Broadcast
Advertising Standards
Board of Finance
Rules on complaints about ads in all media
Asbof
Advertising
Standards Board
of Finance
ASA Non-Broadcast
Independent of Ofcom,
operates as it has
done for over 40 years
TV and Radio
advertising standards
codes
Two separate industry bodies that write and enforce the codes of practice
Brief overview of how the ASA does its job:
one stop shop for advertising complaints - investigated under the appropriate code rules.
results of investigations published on our website where there has been a breach of the code or where an investigation raises significant points that will be of wider interest.
As well as investigating complaints, we identify problems through our own compliance and survey activities.
We are independent of both industry and the government and are accountable through having agreed procedures and standards of service.
CAP:
while the ASA investigates complaints and publishes adjudications, CAP – the Committee of Advertising Practice – is behind it, creating and reviewing the Codes.
self regulatory i.e. as the members of CAP are trade and professional members of the advertising and sales promotion industry.
The broadcast side – although relatively new to the organisation – works in a similar way. Difference though: Broadcast codes - changes are subject to wider consultation and Ofcom approval.
The CAP Code

5. ASA & CAP Advertising Standards Authority
Operates a one-stop shop for advertising complaints
Investigates complaints under the advertising codes
Publishes adjudications online
Independent of the industry and government
Committee of Advertising Practice
Members are trade and professional organisations of the advertising and sales promotion industry
Creates, reviews and amends the advertising codes
Co-ordinates sanctions (with ASA) to ensure compliance with the codes

6. Take action against offenders
The role of CAP/BCAP
Write the Codes
Take action against offenders
Pay for the ASA

7. How we’re funded Levy collected by ASBOF / BASBOF Independent of ASA
0.1% levy on ad spend
0.2% on mailsort contracts
ASBOF- Advertising Standards Board of Finance
BASBOF- Broadcast “ “
Now its actually the advertisers who fund the ASA – and this is done via a levy, % of that cost of all ads transferred to an organisation called ASBOF (or for Broadcast) – BASBOF. And Asbof and Basbof dish out the money to the ASA. So why the need for another organisation? It helps keep the ASA independent. Asbof and Basbof never reveal to the ASA how much an individual advertiser has contributed – so it helps to keep the ASA free from any pressure.
Estimated that approx £130ish spend for every complaint we investigate. Annual budget I approx £4.5 million.

8. The ASA at work

9. The ASA’s remit We cover We don’t cover Print and press ads Posters
Direct mail
Television and radio ads
Competitions, special offers
and text messages
Banners and pop-ups
Teleshopping
Cinema commercials
Promotions
Some virals
We don’t cover
Packaging
Shop windows
Websites
Telephone calls
Flyposting
Classified ads
Statutory / public notes
Press releases
Political ads (election campaigns)
As new media technologies develop, it’s important for self-regulation to keep up to date. So emerging technology tends to be covered by the self-regulatory system – for example, ads sent by bluetooth, at least some level of interactive advertising and ads sent to mobile phones.
One important distinction though is that websites aren’t covered by the advertising codes – this is because we view them as editorial content. So, unless you’re buying paid-for space on someone else’s website, or running a special offer or competition from your site, it’s pretty unregulated – which is partly what the internet’s all about anyway. However, a word of warning – while the ASA might not have any remit over websites, the OFT and Trading Standards – who have legal powers – do regular sweeps of UK websites and will take action against companies breaking the law: so be warned!

10. Complaints & Investigations
Approx 26,000 received each year
49% non-broadcast, 51% broadcast
Assessed against the advertising codes
No minimum number of complaints required
Complainant’s identity is not revealed unless they have a competitive or other interest
If case to answer, ASA contacts advertiser.
Informal Investigation
Formal Investigation
So what happens when the ASA receives a complaint?
First thing that happens is that it’s allocated to either the broadcast or non-broadcast team, depending on where the ad appeared. The exact procedure differs slightly between the two teams, but the general principles are the same.
First of all, the complaint is assessed against the Codes. If there’s no case to answer under the Codes, we can’t pursue the complaint. It may be that another organisation can help, in which case we’ll refer the complainant on.
If, however, we think there is a case to answer under the Codes, we’ll get in touch with the advertiser and advise them of the complaint and ask them for their comments. We always try and resolve issues as simply and in the most straightforward manner as possible. So, if we think the complainant has a point, we’ll try and persuade the advertiser to change their advertising. It may be that there’s some crucial small print left out, or that the small print itself is too small. Or perhaps some other information on the ad can be interpreted in two ways. Whatever it is, our first step is always to try and persuade the advertiser to change the ad without further action from us. In many cases, the advertiser agrees to do this and when that happens, we close the case. If however, the advertiser disagrees with the complainant, and refuses to change their ads, we may then find it necessary to launch a formal investigation.
1) READ SLIDE If no case to answer under the Codes, we can’t pursue the complaint. Refer-on if another organisation can help.
READ SLIDE
2/3) Because we try to resolve issues in simple and straightforward manner, if complainant has a valid point, we’ll try and persuade advertiser to change their advertising. Examples: some crucial small print left out, or small print too small. Or some other info may be incomplete or ambiguous. Whatever it is, our first step is always to try and persuade the advertiser to change the ad without further action from us. In many cases, the advertiser agrees to do this and when that happens, we close the case.
4) If however, the advertiser disagrees with the complainant, and refuses to change their ads, we may then find it necessary to launch a formal investigation.

11. ASA Council
Lord
Smith

12. Sanctions Adverse publicity Media refusal
Withdrawal of trading privileges – including Mailsort Contracts
Disqualification from industry awards
Industry pressure
Poster pre-vetting
Referral to Office of Fair Trading / Ofcom
Underpinning the ability of the ASA to maintain high advertising standards are an effective range of sanctions. In the first instance the ASA publishes the findings of all its formal investigations on the ASA website. This in itself can generate a great deal of adverse publicity, which for some advertisers is enough to ensure future compliance. If that fails, however CAP can contact its members and have advertising space withdrawn. Benetton who refused to observe an adjudication against them were forced to run a blank double page in Marie Claire magazine which cost them around $10,000; other industry pressure that can be applied through CAP also includes withdrawal of trading privileges – for example the mailsort contract - a bulk discount for direct marketers - can be withdrawn suddenly making it a lot more expensive to distribute their ads.
Ads which have broken the rules are disqualified from inclusion in industry awards – CAP members attend events like the Direct Marketing awards and assess category winners for compliance with Code – I had recently had that pleasure. Repeat offenders can also be forced to poster pre-vet all their advertising with the Copy Advice Team for a period of three years.
If all else fails there is referral to the Office of Fair Trading under the control of misleading advertising regulations (CMARS) on the non-broadcast side, and for broadcast advertisers there is referral to OFCOM. Auctionworld a teleshopping company were recently fined $250,000 for repeated breach of their license (delays in delivery misleading viewers about the value of their diamonds and jewelery) another Shop Smart had their license revoked by OFCOm after refusing to respond to the ASA’s enquiries.

13. The Codes BCAP TV Advertising Standards Code;
Rules on the Scheduling of TV Ads; Code for Text
Services (Teletext), Guidance for Interactive TV
Services; Advertising Guidance Notes
BCAP Radio Advertising Standards Code
CAP Code of (Non-broadcast) Advertising,
Sales Promotions and Direct Marketing
What I would like to now is just give you a broad overview of the rules the ASA administers.
There are 3 sets:
The TV Advertising Standards Code applies to all Ofcom Licensees and covers spots ads, advertising on interactive services, teleshopping commercials and Teletext
The Radio Advertising Standards Code – covers spot ads and promotions but excludes promotion of radio stations own-branded activities goods and events which are not designed to either make profit or promote an advertiser.
Finally there is the CAP Code which applies to all non-broadcast ads, cinema commercials and the internet.

14. Basic principles Advertising should be : Legal Decent Honest Truthful
Socially responsible
Clearly identifiable as marketing communications
I have tries to provide an interesting range of subjects – focussing, where possible, on both telecoms examples and examples from a wider remit to provide some variation.
Legal – we don’t apply the law but the Code does reflect it in many places. Ads should not incite people to break the law.
Decent – Should not cause “serious or widespread offence” to the audience.
Honest - Should not exploit the credulity, lack of knowledge or inexperience of consumers.
Truthful – Should be factually correct and not mislead by ambiguity, exaggeration, omission
Socially responsible – self explanatory – e.g. should not cause or legitimise harm, undermine generally accepted good practice
ONLY TALKING ABOUT MISLEADINGNESS AND LEGALITY TODAY – BUT ASA ALSO COVERS ISSUES OF HARM, OFFENCE ETC.

15. How are the Codes different?
Harm, offence, misleadingess – no real difference
Product categories:
CAP Code - statutory restrictions only, e.g. tobacco, prescription only medicines
BCAP Codes – because of the power and intrusiveness of broadcast advertising, additional restrictions on TV/Radio, e.g.: guns, pornography, most betting and gaming
enerally speaking the three rules are much the same in their treatment of such universal issues as harm, offence and misleadingness, however, there is some degree of difference between the rules with regards to restricted product categories.
From the CAP Code there are only statutory restrictions for example, tobacco and prescription only medicines whereas on account of the more pervasive nature of broadcast advertising there are additional restrictions in the BCAP codes prohibiting subjects such as pornography guns, the occult and home working schemes.
NB its perhaps worth noting here that the exact remit of finance advertising differs between the three Codes too, but we will give you the exact details of this later in the presentation.

16. Legality
CAP Code clause 50.11:
Medicines must have a marketing authorisation from the MHRA before they are marketed and any claims made for products must conform with the authorisation. Medicinal claims should not be made for unauthorised products. Marketing communications should refer to the MHRA, the authorisation or the EC only if required to do so by the MHRA.
TV and Radio codes similar rules (8.2.3 AND Section 3, 4.5 and 12)
Food law administered by TSOs
Medicines law administered by the MHRA
New EC Regulation on nutrition and health claims made on foods

17. Men in white coats Men in white costs = permission to believe
Complicated pseudo-scientific explanations of what a product is or how it works, including technical diagrams and language, can mislead.
It MAY be acceptable, but this approach carries risks and scheduling restrictions apply to certain broadcast ads for vitamins and dietary supplements.
It may also be a problem for general advertising of functional foods.
Legality is a major issue when you are reach the borderlines between medicines and foods. Claims can be direct, or they can be implicit, and one of the ways in which an implied medicinal benefit can be presented is through the use of “men in white coats”.
Increasing consumer interest – alternatives to medicines and conventional medicine
Consumers want to know how or why a product/therapy works
Don’t blind with science

18. Misleadingness & Substantiation
No ad may mislead directly or by implication, exaggeration, ambiguity or omission
Advertisers / broadcasters must hold evidence to support all claims before publication / broadcast
Ads should be presented in a way that makes clear they are commercial communications
So, provided your ads are legal …
Under the non-broadcast and broadcast Codes it is essential for marketers to be able to prove all the claims that they want to make in their advertising prior to publication or broadcast. There is no overarching type or particular sort of evidence the ASA would seek in support of a claim, rather they assess evidence on a case by case basis as to whether it supports both the detailed claim and overall impression created by the ad. Testimonials or other types of anecdotal evidence do not constitute adequate substantiation. In addition ads should not set out to mislead consumers by exaggeration, ambiguity or omission also ads should be presented in a way that makes it clear that they are commercial communications.
Just to say – for food there are really two types of potentially misleading ads: those that claim general “healthiness” either because they’re low or high in something, or because they’re “natural” etc. And those that make specific claims for the functionality of their products or ingredients in their products. I’m going to be focusing on the latter.

19. Substantiation Clause 50.1
“Medical and scientific claims … should be backed by evidence, where appropriate consisting of trials conducted on people … Substantiation will be assessed by the ASA on the basis of the available scientific knowledge”
CAP Help Note on Substantiation for Health, Beauty and Slimming Claims (see

20. Prove it Consumer surveys won’t prove a scientific claim
General evidence for health benefits of a food or food ingredient may not be acceptable for a specific product
Claims to maintain health need a high level of proof including (independent) product-specific tests, controlled and double-blinded
Medicinal claims for unlicensed products are prohibited
Levels of evidence – depends on what you want to claim.

21. Help Note on Substantiation…
Collate data to form a body of evidence (the “totality” of evidence is important) when proving “new” or “breakthrough” claims (pt. 3)
Evidence should normally include at least one adequately controlled experimental human study (pt. 3.3)
If studies have not been published in reputable, peer-reviewed journals, an objective review should be carried out by a suitable qualified expert (pt. 3.4)
Name of expert and review made available on request

22. ASA’s/CAP’s Use of Experts
Sufficiently qualified to offer an impartial, competent and considered view
Attempt to reflect generally accepted expert opinion
Criticisms of our reviews are welcomed, so long as they’re objective
Meeting between experts a possibility if disagreement on subjective interpretation of data

23. References to Ailments
Clause 50.3
“Marketers should not discourage essential treatment. They should not offer specific advice on, diagnosis of or treatment for serious or prolonged conditions unless it is conducted under the supervision of a doctor or other suitably qualified health professional.”
CAP Help Note on Health, Beauty and Slimming Advertisements that refer to Ailments (see
Medicinal claims illegal but the Code also says that you can’t talk about serious medical conditions

24. Redbush Tea
We’ll take a look at medicinal claims first

25. Danone Activia
How/ who decides what is a medicinal claim?

26. Dairy Crest
“More Omega 3 may enhance some children’s concentration and learning”.
In this press ad we see Professor Lord Robert Winston, a leading paediatrician in the UK. The main claim here is that “more Omega 3 may enhance some children’s concentration and learning”. St Ivel advance is milk with added Omega 3, found in the same form as in oily fish, and the advs argue that, according to current, popular expert thinking, the population in general does not take in enough Omega 3 – no problem. However, the claim relating to concentration and learning relied on studies that used a supplement, which included Omega 3, but not in the same concentrations as St Ivel advance and was only tested on children who already exhibited signs of having learning or behavioural disorders. We concluded that the claim was misleading, because it implied that the same results were likely to be achieved by taking in St Ivel advance as those of the study. In truth, no evidence had been shown to support the claim – the advertisers were told not to re-use it until they had definitive evidence to support it.
Mention Equazen re Omega 3 and brain function.

27. Kellogg’s

28. Danone Actimel

29. UK Tea Council

30. Innocent

31. Hero – Fruit 2 day

32. Flora ProActiv

33. EC Regulation & the ASA: Some Questions
How will the new regulations affect the ASA?
How do the Codes reflect legislation? Will they change?
How will this effect the industry?
Questions at this stage, because we will obviously not know exactly how things will pan out.
ASA will still seek substantiation – it’s just that it should be much easier to produce! If your claim is in the annex or Article 13, you’ll just need to show that’s the case. Draw parallels with OTC Medicines. But: still important that the claim made in the ad matches up to the permitted claim (interpretation – as we’ve seen – is very important).
2. Worth saying that the Regulation has, on the face of it, the effect of changing BCAP and CAP Code clauses that are more restrictive than the Regulation allows but, because the relevant clauses arguably reflect UK public policy commitments or uphold the protection of health, especially for children, it is, on those grounds, potentially permissible to diverge from the Regulation.
3. Should make things easier to an extent, when Reg come into full force.

34. Getting help, staying informed and working together

35. You: The Industry CAP and BCAP are not closed organisations
Committee members attend meetings and agree Code policy and development issues.
CAP and BCAP Members include ISBA, IPA Broadcasters, Royal Mail, trade bodies etc ..
Industry guidance is sought through the CAP panels: General Media Panel; Sales Promotion and Direct Response Panel.
Obviously the need to ensure compliance with the new regulations will be foremost in your minds, but in the meantime it’s worth quickly discussing how we can work with you to ensure that ads for superfoods do not breach the Codes, do not mislead consumers above and beyond nutritional claims etc. – and how you can influence the ASA’s policy (after all this is a self-regulatory system and we’re basically working for your benefit).
The first thing to say is that CAP and BCAP are not closed organisations. They are composed of representatives of numerous stakeholders, who meet regularly and agree changes to the Codes and interpretations of Code clauses and ASA decisions. This ensures that they have their opportunity to offer their input into the policy decisions that CAP makes. That means you will most likely have some representation on CAP through one of these stakeholders … And the importance of this will perhaps be clearer when you see exactly who these stakeholder members are …

36. Code changes • Arise from: - Significant public concerns
- Consumer standards and expectations
- Nature of the medium
- Forthcoming Code Review
So the CAP and BCAP committees, as I said, influence the direction of Code policy. But how is that policy developed, what factors drive Code changes?
While the principles of advertising regulation endure, how they apply can change over time. It is the responsibility of the incumbent regulator to reflect as far as possible the standards and expectations of contemporary society and translate them into Rules which acknowledge the industry’s right to freedom of speech, but sets minimum standards the public can expect of it. The spark for Code changes can arise from
1. Significant Public concerns: For example, the extent to which advertising of alcohol contributes to anti-social and binge drinking culture; or how the advertising of certain foods leads to obesity in children.
2. Consumer standards and expectations: We don’t have the same standards as Victorian Britain, neither is society today as it was, say, in the 1980s. Nudity, sexuality and psychic practices are perhaps more widely accepted and less condemned than they once were.
3. Nature of the medium: As consumers become more media literate their understanding and expectations of and trust in the medium – from newspapers, to TV, to internet, to bluetooth technology – is heightened and the need for the regulator acting as chaperone is lessened.
I’ll talk more about this in a bit – but at this stage it is sufficient to say that while all media requires consumer opt-in to varying degrees, some media is more on-demand than others and potentially less in need of regulation as we know it today.
So as I said, anyone who has any involvement in the industry can at some point have a say in CAP’s code policy – that is, the drivers that prompt Code revisions and the content of those revisions.
Most importantly we have just begun a full-scale review of the Codes and this should be completed in 2009 – consultations will be ongoing so make sure you stay informed then you can have an opportunity to have your say through your representatives on CAP/BCAP. You will also be able to respond individually through a public consultation.
You can keep informed by signing up to … blah blah

37. Broadcast Advertising
BCAP does not advise on individual ads (but can offer a broad interpretation of code rules)
TV: BACC clears scripts and commercials for the majority of channels. A few channels clear their own ads
Radio: talk to RACC
All codes at
Help in the immediate instance
Broadcast: BCAP doesn’t advise on individual ads. It can only offer broad interpretation of the Code rules
TV: The BACC clears scripts and commercials for the major channels. If your ad is for a smaller channel (eg foreign language, specialist, tele-shopping) talk to the broadcaster’s own Compliance team
Radio Talk to RACC
But the Radio and TV Codes are on the CAP website (along with scheduling rules and other guidance etc for TV)

38. CAP Copy Advice Service
- Free
- Confidential
- Fast (within 24 hours)
- Help to avoid future problems with the ASA
- We’ll support your case to the ASA
The team will look at past ASA adjudications, CAP Compliance work and previous advice to provide guidance on the likely acceptability of the copy in question.
CAP runs a service to the industry called the Copy Advice service. Can you raise your hand if you use the service? If you don’t use the service, you’re probably wondering why you should use it?
The Copy Advice team consists of 6 experienced executives. Together we provide advice on whether the copy we receive is likely to breach the CAP Code, by looking at relevant ASA adjudications, CAP Help Notes (more of these later) and in light of previous advice given. In the event of a piece of copy containing any likely breaches, we will always do our best to suggest viable alternatives that if put into place would render the given piece of copy acceptable. On the other hand, if we consider that an ad is likely to be acceptable, we will confirm this.
The service is completely free, fully confidential and fast, with around 95% of requests for advice dealt with within 24 hours. We cannot give a seal of approval to an ad, but by obtaining advice you are doing all that you can to ensure that you do not run into problems with the ASA at a later date. Furthermore, if the Copy Advice team has advised you that an ad is likely to be acceptable and the ASA launch an investigation following a complaint, the team will defend the decision that they made to the ASA, explaining the rationale behind the advice they gave. This can only strengthen an advertiser’s case in the event of such an ASA investigation.

39. Help Notes
• Provide a comprehensive guide to a given sector or issue, for example:
- Substantiation
- Ailments
- Advertising Food to Children
• All are available on our website:
And also from the website you can down load various help notes giving advice on a given sector or issue like:

40. Advice Online
• A regularly updated searchable database of advice for non-broadcast marketing communications.
• Entries will change with landmark decisions by ASA.
• Visit our website to search the database:
CAP’s website also offers a helpful AdviceOnline service to help marketers, agencies and media owners ensure their ads, sales promotions and direct marketing meet CAP's advertising codes.
A regularly updated searchable database of advice for non-broadcast marketing communications

41. Update@CAP Free quarterly e-mail newsletter
News on High profile and landmark ASA Adjudications
Code changes and developments
Compliance Reports
Common problems and how to avoid them
Training and Events, including Advice:am seminars
Subscribe at
You can also subscribe for a quarterly news letter called Update at CAP too which offers the following benefits

42. Any Questions?
Thank you