CLOSE-UP: LIVE ISSUE/THE ASA - Is the ASA becoming a forum for back-stabbers? The ASA is spending more and more time on industry complaints

First it was lawnmower wars. Then telecoms deregulation led to

phone companies trading blows. Newly privatised utility companies also

piled in. Now vacuum cleaner makers are slugging it out in a

long-running dust-up.



Small wonder that complaints to the Advertising Standards Authority by

one advertiser against another are multiplying, so much so that the

watchdog fears that they are clogging the system at a time when pressure

on it for speedier judgments is overwhelming.



Set up 39 years ago to safeguard consumers from advertising's excesses,

the ASA finds that one in every ten of its investigations concerns an

industry complaint.



What's more, such complaints are often so complicated that they take up

an estimated 20 per cent of the ASA's time and account for about half

the appeals going before the ASA's independent reviewer.



All of which begs the question of whether or not the ASA is being taken

for a ride by advertisers cynically exploiting self-regulation as a

means of nobbling rivals in the marketing stakes.



The matter is clearly concerning Lord Borrie, the ASA's newly installed

chairman. He marked his arrival in the role with a speech at last week's

conference of ISBA, the advertisers' trade body, asking: 'Is this what

the ASA is really for?'



For the time being, at least, the answer must be yes. If only because

nobody has yet come up with a workable substitute for the present

system.



'It's an area of anxiety for us,' Andrew Brown, the chairman of the

rule-making Committee of Advertising Practice, admits. 'But although

we're sympathetic to the strain it puts the ASA under we can't find a

better alternative.'



The ASA's unhappy lot has been triggered partly by the energy companies

flexing their newly privatised muscles in markets previously controlled

by monopolies and the vicious price competition within the telecoms

sector epitomised by the ad battle between Orange and Vodafone that went

all the way to the High Court.



An account man with experience of the telecoms market says: 'Because

there are so many complicated tarriffs in the phone market, price

comparisons are the easiest way of differentiating yourself, and

telecoms companies have pushed this to the limit.'



Nor, he adds, can emotional motivations be ignored. 'They're obsessed by

getting one over on the competition. Telecoms is a testosterone-driven

industry.'



It's a similiar story in retailing where Tesco, having seen off

Sainsbury's, has turned aggressively on Asda, which it now perceives to

be its most serious rival.



Price comparisons between the supermarkets will invariably be subject to

challenge and are hard to prove. As Adam Leigh, a former board account

director on the Safeway business at Bates UK, puts it: 'You become very

conniving about justifying a claim.'



Not that industry complaints are anything new. Twenty years ago, the CAP

was charged with investigating them rather than the ASA and its files

bulged with cases needing to be probed. But its adjudications were not

made public, prompting demands from the Department of Trade and Industry

for greater transparency.



In the late 80s, the ASA took over responsibility for handling such

complaints.



Some CAP members opposed the switch, fearing that the body was being

marginalised.



They claimed they had been 'bounced' into it by the ASA's then

director-general, Matti Alderson, and saw it as empire-building by a

body anxious to assert its independence and importance.



Today, the problem is not so much the volume of industry complaints but

their complexity, which often forces the ASA into the time-consuming

process of engaging independent experts to evaluate the rival

claims.



But while there's sympathy for the watchdog, some hold it partly to

blame for its predicament.



'It ill-behoves the ASA to moan about the level of industry complaints

when it engineered the takeover of them in the first place,' says Philip

Circus, advertising law consultant to the Newspaper Society and the

Institute of Sales Promotion's representative on the CAP, of which he

has been a member for 23 years. 'It didn't have to take on the job.'



Of course, all this pre-supposes that the rise of industry complaints

having to be dealt with by the ASA is a bad thing. That's not

necessarily true.



Borrie himself acknowledges that they can expose genuine issues of

concern to consumers. They can also lead to the investi-gation of highly

technical claims no ordinary consumer could challenge.



Moreover, allowing advertisers to 'let off steam' at the ASA is seen as

infinitely preferable to costly and debilitating legal actions. And what

matter if a ruling allows one advertiser to gain competitive advantage

over another when it also provokes an investigation from which consumers

benefit?



Nevertheless, some believe Borrie's comments indicate that the time has

come for the establishment of an industry working party to resolve the

problem.



Everybody agrees that returning the responsibility to the CAP would be

like trying to squeeze the toothpaste back into the tube. 'It makes no

sense for the CAP to take the job back,' Circus argues. 'The

adjudications would still have to be published and it would be daft to

employ two sets of investigators.'



At the same time, advertisers recognise the PR value of a ruling by such

a well-known body as the ASA. But it's hard to imagine French Connection

getting much media mileage out of an ongoing spat with the CAP, which

few outside the industry have ever heard of.



So what about a new independent body to rule on industry complaints?



Brown is unenthusiastic, fearing that it would be very expensive, while

introducing a quasi-judicial system to operate alongside

self-regulation.



Another idea being mooted is for CAP-controlled panels made up of trade

bodies for the relevant sectors, be it telecoms or vacuum cleaners,

perhaps with an ASA executive sitting in to ensure that rulings are

consistent.



On the face of it, such a plan is appealing. But there are major doubts

about whether adjudi-cations by such panels would command sufficient

authority and respect. ISBA may be a member of the CAP - but large

numbers of advertisers don't belong to ISBA.



Whether or not the rise of industry complaints represents an undermining

and a hijacking of the ASA or is more a sign of a vibrant and

competitive ad community is an open question.



Circus believes the latter is the case, arguing that the ASA should

never compromise justice for the sake of speed and that what's happening

now helps ensure high ethical standards in advertising.



'At the end of the day it's about the validity of an advertising claim,'

he says. 'I don't share the view that if you are from the industry side

your complaint is unjustified.'



LORD BORRIE ON THE HIJACKING OF THE ASA



'What does it say about genuine self-regulation that nearly 10 per cent

of all complaints handled by the ASA last year were industryto-industry

complaints? Does that speak of advertisers keeping their own house in

order - or rather the self-regulatory system being hijacked in support

of somebody's marketing strategy?



'Certainly, companies as well as individuals have every right to appeal

to the ASA - and very often industry complaints open up genuine issues

on behalf of consumers in general. But are we overdoing it if 10 per

cent of the resources the industry makes available to investigate

consumer complaints is taken up by rivalry between companies?



'In fact, industry-to-industry complaints take up much more than 10 per

cent of the ASA's resources because these complaints are the most likely

to require outside experts to evaluate evidence, they are the most

likely to result in references to the CAP Panels and they are the most

likely to result in appeals to the independent reviewer. Is this what

the ASA is really for?'



ASA complaints in 2000

Sector Public Industry

complaints complaints

Computers/Telecoms 1,060 105

Food and drink 155 23

Finance 452 29

Health and beauty 502 179

Utilities 77 23



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