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Why the 11th hour ASA u-turn?

By Angela Harbutt
July 30th, 2014 at 4:24 pm | 4 Comments | Posted in Quango

For those of you that don’t know, the Advertising Standards Authority (ASA) is a quasi-judicial authority, tasked with providing independent scrutiny of the marketing communications industry; specifically ensuring that advertising is not misleading, harmful or offensive.

The Chairman of the ASA is appointed by Advertising Standards Board of Finance (ASBOF) – who then appoints 12 Council members to preside over various cases put before them (frequently by members of the public complaining about advertisements they see). Council members are supposedly selected by the Chairman to reflect a diversity of background and experience. This of course only works if the Chairman does indeed appoint Council members who (a) genuinely reflect a wide range of views and experiences and (b) are completely impartial. The current Chairman is the beleaguered Lord Smith of Finsbury (out-going Chairman of the Environment Agency and former Labour Minister).

So what happens when the advertiser under investigation by the ASA is the Government, and too many of those on the ASA Council have various vested interests in keeping on side with government? Can the ASA realistically be relied upon to be blind status of the advertiser?

Perhaps not…

Back in January 2013 I submitted a complaint to the ASA regarding a Government “quit smoking” advert. The advert stated:

When you smoke the chemicals you inhale cause mutations in your body and mutations are how cancer starts. Every 15 cigarettes you smoke will cause a mutation.

I challenged the categorical statement that “every 15 cigarettes you smoke will cause a mutation”. The statement was based on an exploratory research paper which estimated that every 15 cigarettes smoked caused a mutation. It was based on a sample of one patient (yes one) whose smoking record was unknown and the paper did not take into account other factors that are known to affect mutation rates (e.g. ethnicity, age, environmental (background level of mutagenic chemicals) or lifestyle factors etc). No criticism of the study, it was fascinating insight into where genome research is heading. But the study did not provide evidence to back up the study. Nor did any other study. At best one other study (with a sample size of 21 patients – not much more than the average focus group) showed a range of estimated mutation rates, again with a long list of limitations attached to the estimates in this tiny sample.

Over the past 18 months the ASA has investigated the complaint thoroughly. As reported elsewhere, unsurprisingly, the ASA found on three separate occasions that the government advert was misleading and lacked substantiation. After the Department of Health had challenged the first two findings, the ASA brought in a cancer research expert to impartially review the evidence. Post review, it concluded, for a third time, that the advert was misleading and lacked substantiation. This recommendation was put to the ASA Council.

The ASA Council adjudication today however, overrules the findings of its own 18 month investigation, stating that the complaint is not upheld.  Given the consistency of the ASA rulings during the course of this investigation, why the dramatic last minute u-turn?

I can see only three possible reasons for the ASA Council adjudication.

Firstly the ASA Council were simply bamboozled by the science and talk of “peer-reviewed studies” (do people really not understand what that actually means?), lacking sufficient experience/ knowledge to differentiate between tiny incomplete exploratory studies producing estimates, and definitive studies providing robust evidence

Understandable perhaps, although you might have thought that if Council lacked the required experience it would have deferred to it’s own exhaustive investigation rather than overrule it.

Secondly, this quasi-judicial panel could not bring themselves to rule that government had misled the people, with all the ramifications for the long term future of the ASA (and/or themselves) that such a high-profile ruling might bring.

Or maybe it was ideological, and their views on smoking had a part to play. Perhaps they thought that no matter how unsubstantiated the government claim, the end justifies the means. To admit the government had lied on smoking (which it clearly did) would set back the cause for many years.

May be it was a bit of all of the above.

I do not know the ASA Council views on smoking, nor do I know if they actually had the competence to deal with the research data put before them, but I have do know something on the interests of some of the Council members.

Ray Gallagher, (according to the ASA website) has been advising the government “since 2006” as “broadcasting Specialist Adviser to the House of Commons Culture, Media and Sport Committee”.

Martin Narey is, according to his twitter account, also an advisor to Government, an appointment he is very pleased to have had recently renewed “I’m very pleased to be asked by Nicky Morgan to advise her on Adoption, Social Work Education and DCS support”. (You may also be interested to read his 2009 report on Social Mobility here – Page 68 states “Smokers in lower socio-economic groups consume more cigarettes than more affluent smokers and are more addicted. The strength of the addiction makes it harder for poorer people to quit…”).

Yet another Government advisor seated on the ASA Council is John Mayhead. The ASA website reports “Since 1999 he has been a non-exec at the Department for Transport and also chaired the Government Strategic Marketing Advisory Board which was responsible for the oversight of all Government marketing activity.”

You may be pleased to know that Hamish Pringle is not a Government advisor directly. Unfortunately he is Strategic Advisor at advertising agency 23Red. And guess which organisations feature prominently on 23Red’s client list … “Change for Life”, “Smokefree”, “Public Health England” and … “the Department of Health” (yes really).

He is not the only one whose clients include Government.

ASA Council member Anthony Earle Wilkes is the Managing Director of CETC Ltd, a specialist equal opportunity consultancy. His website states that he provides equality and training to organisations including regulatory authorities, local authorities and Government department & agencies. One wonders just how much the state accounts for his business income. Quite a bit one assumes given the nature of his business.

I could go on, but am waiting for the ASA to send me the “ASA Council Declaration of Interests” (curiously not on the ASA website) – and anyway I think you get the point.

I suppose it is possible that none of those listed above attended or, if they did attend, voted to over-rule the ASA executive on this Government advert – that information is not available to us. It is a regulatory body shrouded in mystery after all. We do not know who voted for and who against? We don’t know if it was a majority decision or unanimous? Or whether anyone abstained due to conflict of interest? All questions that cannot be answered.

And here is the problem, one that Arch Bishop Cranmer stated so well :

It is a question of impartiality, which matters profoundly in political processes where force and influence compete with manipulation and facts: if an organisation with quasi-judicial authority professes to be objective in its investigations, then its senior staff and officers must not only be impartial, they must also be seen to be impartial. There cannot be even the merest hint of a political agenda subverting that professed neutrality or corrupting the overriding commitment to fairness and justice.

Given the many Governmental connections past and present of those seated on the ASA Council, for Council to overrule the recommendations of its own investigation, with no explanation as to why, brings into question the very impartiality of the organisation – and therefore the whole process itself. Can people with such close links to Government really be relied upon to consider complaints against Government fairly? I think not.

At the very least you might expect the ASA adjudication to list members past and present links to Government at the end of the adjudication – for transparency sake at least.

An appeal on the ASA Council adjudication has been lodged with the ASA Independent Reviewer – Sir Hayden Phillips – who may decide to look at it and write a review. But even then his role appears to be only advisory – he can politely ask Council to reconsider its ruling – but it appears that this quasi-regulatory organisation cannot be forced to change its opinion, no matter how compelling the evidence: Given that Council members clearly believe they know better than their own staff, one assumes that they will also consider their views likewise superior to the Independent Reviewer.

This case has ramifications for us all. If the Government is not sanctioned for misleading the public in such a clear cut case, what else might it be allowed to say without fear of sanction? It does not bear thinking about. In the meantime we will wait to see what an appeal brings us – but what’s the betting it will this time next year before any decision is made?

DISCLAIMER: Across 2012 and 2013 Angela worked on the Forest campaign Handsoffourpacks opposing the introduction plain packaging of tobacco. She submitted the complaint to the ASA whilst working on that campaign.

READ ALSO: “At last, the ASA verdict on Forest complaint about DH “mutation” ad

UPDATE: For more information read “Spot the Difference: How the Advertising Standards Authority changed its tune

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