The ASA has responded to a recent Government consultation that calls for changes to help empower and protect consumers. These proposals could impact on the work of the advertising regulatory system.

In particular, changes could significantly alter the nature of the ASA’s non-broadcast statutory backstop.  Currently, in the rare event of continuing non-compliance with ASA rulings, the ASA can refer misleading advertisers to the Office of Fair Trading (OFT), who have statutory powers to deal with misleading or otherwise unfair advertising.  The ASA rarely calls on those powers, as the mere threat of referral to the OFT in combination with effective self-regulatory sanctions are usually sufficient to achieve compliance with ASA rulings and the CAP Code.. The Government’s proposals would see this important backstop role fall to Trading Standards, although – at the time of writing - there is some uncertainty as to what exact form this arrangement would take. 

Other proposals would see a number of the OFT’s other functions, including those related to consumer policy, market studies and helping to co-ordinate regulatory activity, transferred to other institutions. 

Whilst the Committee of Advertising Practice (CAP) welcomes the Government’s commitment to the success of the advertising self-regulatory system, we have some reservations about the potential impact of some of these changes. 

First and foremost, it is important that whatever body is charged with becoming the regulatory system’s legal backstop must have the resources, co-ordination and will to take on cases referred to it by the ASA. Crucially, it must also build and retain credibility as a body with national authority.  Should it not, there could be a risk that the high compliance rates enjoyed by the self-regulatory system might be undermined.

CAP shares the ASA’s view that an effective competition and consumer regulation regime, fit to face today’s regulatory challenges, must recognise the interdependencies between competition and consumer issues and be able to effectively operate and co-ordinate on a local, national and international level.  We are concerned that the proposals leave this outcome subject to some uncertainty and potentially risk greater complexity and inconsistency within the consumer enforcement regime.

We hope that the Government will take on board the views that have been expressed by the ASA through its response.

Further reading

More on

  • Keep up to date

    Sign up to our rulings, newsletters and emargoed access for Press. Subscribe now.