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
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
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
'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
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
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
Some CAP members opposed the switch, fearing that the body was being
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
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
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
Nevertheless, some believe Borrie's comments indicate that the time has
come for the establishment of an industry working party to resolve the
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
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
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
Computers/Telecoms 1,060 105
Food and drink 155 23
Finance 452 29
Health and beauty 502 179
Utilities 77 23