Catherine Davies and Michael Gardner of Wedlake Bell LLP
Catherine Davies and Michael Gardner of Wedlake Bell LLP
A view from Catherine Davies and Michael Gardner

Think BR: Businesses must be aware of the ASA's new guidelines

Businesses wanting to complain about a competitors' ad now need to show they have taken steps to resolve the dispute before involving the ASA, write Catherine Davies and Michael Gardner of Wedlake Bell LLP.

The Advertising Standards Authority (ASA) has long offered an alternative remedy to expensive legal action for businesses which want to complain about their competitors' advertising.  

However, competitor complaints have clearly become something of a drain on ASA resources. 

In the ASA's Final Process Review, published on 5 October 2011, new guidelines were introduced to govern complaints about competitors' adverts.  

Previously, the ASA only encouraged complainants to resolve any disputes with competitors.

However, complainants will now need to positively show that they have taken reasonable steps to resolve the dispute with their competitor first, before making a complaint to the ASA.

The ASA has, however, dropped the idea of charging a fee for dealing with competitor complaints.

From 1 December 2011, the complainant should write to the advertiser by registered post and provide sufficient detail of both the complaint and any relevant Advertising Code.

The written complaint should be from and directed to a senior officer of the advertiser and prior notice should be given by telephone to ensure that the competitor is aware of the complaint and that it is going to the correct person.

The complainant should allow five working days for a response and if at the end of this period:

  • The advertiser has not responded; or
  • The complainant has other reasonable cause to believe that the advertiser will not act within a reasonable timeframe or in good faith in response; or
  • The parties cannot reach an agreement

Only then can the complainant make a complaint to the ASA.  When doing so, it must provide evidence that the above process has been followed.

The aim of the new process is to encourage settlement between parties and the ASA has said that the new guidelines will help them deal with competitor complaints more effectively, efficiently and cost-effectively.

It is also hoped that this will reduce the time the ASA spends dealing with each complaint.

Businesses therefore need to be aware of these guidelines. Although the ASA has not gone as far as to say that if the new procedure is not used a complaint will be rejected, they have said that a complainant will need a good reason not to have followed it.

However, businesses should be reassured that 'good reasons' will be considered by the ASA and they should not be alarmed that they will always have to wait the additional five days in every instance.

The ASA will review each case on its own merits. If it is obvious that an advert is breaching an Advertising Code, it will take action immediately. This ensures that there is still some flexibility in the system.

If, as the ASA hopes, the new process reduces the number of competitor complaints it has to handle, this is turn should be beneficial to businesses as such complaints that do reach the ASA will be dealt with more rapidly.

Hopefully it will also encourage potential complainants to consider their complaint more carefully before involving the ASA.

After 12 months, the ASA intends to survey a number of large advertisers to review the new procedure.

It will look to see if there has been an increase in settlements, hence avoiding the need for complaints to be escalated to the ASA. It will also review whether the average time the ASA take to resolve a complaint has been reduced.

Catherine Davies, solicitor, and Michael Gardner, partner, head of commercial, IP and IT law at Wedlake Bell LLP