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    Kevin Charleston

    On the one hand , the ASA is not a public company and does not necessarily have to be open to any but its primary stakeholders. On the other, it holds an authority in the eyes of consumers and advertisers alike. It should be as open as possible about its decisions and its financial makeup and pricing.

    The administration is inadequate and slow, and its website is poor and out of date. Compare the ASA ( with the UK ( or Australian ( equivalents for information content.

    Chris Moerdyk complains that “marketers can get their rivals’ campaigns pulled” – it sounds like he still hasn’t forgiven the ASA for its handling of the BMW “Beats the Bends” campaign whilst he was marketing director.

    He complains that “lone cranks” can end up costing companies thousands. I’m not sure why either “lone” or “crank” should be an issue. If the advertiser breaks the requirement of CAP, then the advertiser is at fault, not the individual laying the complaint. The ASA has specific requirements for how complains must be laid – and an administrative process that filters out irrational or obviously irrational or fraudulent ones. The number of complainants or their personal peculiarities is irrelevant to the bona-fides of the complaint.

    The complaint costs nothing to the advertiser – unless the ASA Directorate agrees the complaint has merit and the advertiser’s response is inadequate. A consumer complaint can only “end up costing companies thousands” is if the complaint is valid, the ASA concurs, and the advertiser is either required to change the advert – or decides to appeal.

    Moerdyk has not offered any coherent reason for his claim that the ASA operates on the principle of “you’re guilty until proven innocent”. When pressed on it, he referred to this section of the procedural guide which states: “ If the complaint or issue requires the provision of substantiation by the respondent, the Directorate shall call for such substantiation and shall specify the time period for its provision. The respondent will generally be given 48 hours to provide substantiation.”

    But he ignores section 4.1 of the General provisions which state “4.1.1Before advertising is published, advertisers shall hold in their possession documentary evidence as set out in Clause 4.1, to support all claims, whether direct or implied, that are capable of objective substantiation.”

    So if you make a claim in an advert, you must have substantiation. If you don’t, then you shouldn’t place the advert. If you do, then 48 hours should be no problem. There is provision for extension if requested, and no requirements to stop the advert while the Directorate rules.

    It is unclear how that translates to guilty until proven innocent.

    The ASA generally doesn’t act that fast when it comes to consumer complaints though. In most cases it takes 2-3 weeks before they have filtered the complaint and decided it is genuine. The communication to the advertiser generally gives 2 weeks for a response. My experience is that, with matters pertaining to substantiation, the Directorate rarely gives a ruling within 4 months. All of which time the advert continues to run. Complaints about offensive advertising don’t require substantiation and section won’t apply.

    Competitor complaints require the complainant to pay a fee – and are sped through the process. It costs a significant sum to lay a competitor complaint – to say that “marketers could lightly get their rivals campaigns pulled” is glib – particularly as it requires the collusion of the rival who has to create a campaign that contravenes the CAP in the first place. That’s a plan that would be worthy of the description Machiavellian.

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