Overseas mailings

 
The Advertising Standards Authority (ASA) is the independent body that endorses and administers the British Code of Advertising, Sales Promotion and Direct Marketing (the CAP Code) that applies to all UK non-broadcast marketing communications.  The Committee of Advertising Practice (CAP) is the industry body that creates, revises and enforces the Code.

The ASA is a founder member of the European Advertising Standards Alliance (EASA).  EASA co-ordinates a cross-border complaints system that allows consumers to complain to the self-regulatory organisation in their country about marketing that originates, or appears in media that are principally circulated, in another country.

Problem mailings

The number of mailings sent to UK consumers by advertisers based outside the UK has increased significantly in the last few years.  The ASA’s Direct Marketing Survey 1996 contained no mailings that originated outside the UK.  By contrast, the ASA’s Direct Marketing Survey 2001 contained nine mailings that originated outside the UK.  All nine broke the Codes.

The content of overseas mailings often falls into the following categories:

 ·           promotions that wrongly suggest that recipients have won a major prize and ask recipients to send money to claim that prize;

·           health, beauty and slimming products for which “miracle” claims are made; and

·           clairvoyants, lucky charms or other superstitions for which unproven claims are made exploiting the vulnerability of those who may be down on their luck.

Consumers who respond to overseas mailings are very likely to have their data passed, rented or sold to other direct marketers and so receive numerous further mailings. 

Jurisdiction

The Code covers non-broadcast UK marketing (including direct mailings).  The question of jurisdiction is less clear if mailings originate outside the UK, even if they are targeted exclusively at UK consumers.

Mailings that originate in an EASA member country

If mailings originate in a country that holds membership of EASA, the ASA and CAP will ask the appropriate self-regulatory organisation in the country of origin to take action under that country’s rules.  This cross-border action is co-ordinated by EASA.

Mailings that originate in a non-EASA member country

If mailings originate in a country that does not hold membership of EASA, the ASA will investigate and publish any complaints under the Codes and, at the same time, refer the mailings to the appropriate regulatory body in the country of origin. 

ASA decision-taking and immediate compliance action

The ASA endeavours to investigate complaints as speedily, fairly and thoroughly as possible.  Although individual investigations, particularly those that involve complex issues, can take some time, the ASA can ask the CAP Compliance team to take concurrent immediate action against overseas mailings that appear to contain clear breaches of the Codes.  If that happens, the Compliance team endeavours to prevent further distribution of the mailings concerned while the ASA investigation proceeds by applying sanctions.

If the ASA receives complaints against mailings that have already been investigated (either by the ASA or by an EASA member organisation) and found to break the appropriate Codes, it usually refers the matter direct to the Compliance team for immediate action.  The Compliance team co-ordinates any sanctions that might be taken against persistently offending direct marketers.  

Working with others

 At all times, the ASA and CAP work closely with the Royal Mail, relevant trade associations (e.g. the Direct Marketing Association), trading schemes (e.g. the QMP quality mark scheme for mailing houses), trading standards officers and government departments to apply sanctions against marketers who appear unable or unwilling to ensure that their mailings are legal, decent, honest and truthful.

Other organisations, such as the Department of Trade and Industry and the Office of Fair Trading, are also involved in tackling overseas mailings who persistently mislead or offend UK consumers. 

The difficulties of enforcing decisions

Taking decisions under the appropriate Code is one thing, enforcing those decisions another. 

·           First, it is often difficult to track down overseas mailers.  They regularly change their names and addresses (often operating under several different names at any one time), are quick to move from country to country to avoid detection, set up post boxes in “third party” countries and regularly switch their use of postal services.  Sanctions that exist in one country are often unusable in another.

·           Second, the marketers responsible for the worst overseas problem mailings are not deterred by the adverse publicity that often results from the publication of ASA rulings.  Furthermore, they invariably operate on the fringes of the industry and do not use reputable agencies, mailing houses, fulfillment houses or data service agencies (thus rendering most Ad Alerts ineffective).

Neither the self-regulatory organizations that hold membership of EASA (including the ASA and CAP) nor statutory bodies like the OFT and its overseas equivalents are yet able to tackle effectively this problem with cross-border mailings.

Sanctions – what we can do

Ad Alerts / Euro Ad Alerts

If it is possible that a UK-based intermediary is involved in the distribution of the mailings (e.g. a creative agency, media agency, data service supplier, mailing house or fulfilment house), the Compliance team will send out an Ad Alert warning the UK industry about the problem mailings and asking it not to handle or publish them without first checking their acceptability.  Additionally or alternatively, EASA may issue a Euro Ad Alert to advise its members of the repeat offence. 

Withdrawing bulk mailing discounts

The team might look to apply pressure through the Royal Mail, often the postal carrier for overseas marketers.  Although the Royal Mail is not legally entitled to open mail (and thus cannot prevent the distribution of problem mailings by marketers with no record of breaking the Code), it can act against persistently offending marketers who either have Mailsort contracts or use intermediaries with Mailsort contracts.  In such cases, the Royal Mail can withdraw from those contracts, removing the discount on bulk mailings that is so important to marketers.

In 2002/2003, the Royal Mail, at the request of the ASA and CAP, ensured that three direct marketers, GMS Sweet ‘n’ Tasty, Fredreich Mueller and The Jewelery Vault, were unable to benefit from the Mailsort discount because they had persistently breached the Code.  All have since signed assurances to check their future mailings with the CAP Copy Advice team.

The team will also explore other sanctions that might involve the withdrawal of trading privileges, for example agency recognition offered by the print media.

OFT referral

If direct marketers continue to send problematic mailings to UK consumers and use UK-based intermediaries, the ASA may refer the intermediaries involved to the Office of Fair Trading (OFT) for possible legal action under the Control of Misleading Advertisements Regulations 1988 (as amended) (CMARs).

In 2003, the ASA referred to the OFT The J Partnership, a UK company that provided data services to two of the overseas direct marketers mentioned above (GMS Sweet ‘n’ Tasty and The Jewelry Vault).

‘Stop Now’ powers

Until the recent introduction of the EU Injunctions Directive, which provides new powers that allow certain organisations to enforce several existing consumer laws, including CMARs, throughout the EU, the ASA and CAP have been unable to fall back on OFT referral of direct marketers based overseas. 

That Directive has now been implemented in the UK as the ‘Stop Now’ Orders Regulations.  It should allow the organisations who are qualified to use the powers (e.g. the Office of Fair Trading) to enforce the consumer laws against marketers based in EU member states who target UK consumers. 

However, the difficulty of using these legal instruments in other countries against marketers who change their names and addresses frequently should not be underestimated.  At the time of writing (March 2003) CAP and the ASA were not aware of any successful cross-border prosecutions under advertising law using ‘Stop Now’ powers.

International Consumer Protection and Enforcement Network (ICPEN)

If a marketer based in a non-EASA member state persists in sending out problematic mailings, the ASA may notify the OFT.  The OFT is a member of the International Consumer Protection and Enforcement Network (formerly, the International Marketing Supervision Network), a collection of law enforcement authorities from more than two dozen countries.  ICPEN encourages its members to share information and co-ordinate international co-operation.

Consumer action

The ASA welcomes complaints against overseas mailings that have been received by UK consumers in the previous three months.  It will continue to take action where it can to prevent further mailings being sent out but is unable to enforce its decisions in many cases.

Consumers who wish to stop overseas mailings should replace them in their envelopes and clearly mark them “Return to sender, I do not wish to receive similar mailings in future”.  

Remember: don’t send any money