Close-Up: New ad rules offer more questions than answers

The revamped ad code slated to come into effect later this year leaves several contentious issues unresolved, John Tylee says.

The new set of advertising rules coming into force in September confirm how much unfinished business is left to complete before Britain has a comprehensive code that truly reflects the times. While the new regulations make no changes to the already stringent rules covering snack-food and drink advertising - Ofcom is adamant that they're not to be tampered with - some other issues remain so contentious that the rule-makers admit they're not yet ready to resolve them.

One is the incendiary question of proposed changes that could, in theory, allow abortion clinics to advertise on TV. Of the 30,000 submissions made to the regulators - far more than for any previous code review - the overwhelming majority were on the subject of pregnancy advisory services.

The other is the conundrum of how websites can be properly policed and how any proposed rules could be enforced by the Advertising Standards Authority. An Advertising Association working group has been wrestling with this to prevent "a hospital pass being delivered to the ASA Council", according to one regulator.

Abortion is the more sensitive of the two issues. New rules relaxing the restrictions on pregnancy services were to have formed part of the revamped code. However, Ofcom and the Broadcast Committee of Advertising Practice say they want to mull it over further.

It remains likely the rules will be amended, as they already have been in the case of advertising for condoms. Because the UK has Europe's highest teenage pregnancy rate, condoms are no longer subject to a 9pm watershed restriction, although ads will be kept well away from children's programming.

At the back of regulators' minds will be the need to avoid a court action by pro-life campaigners. This could only succeed if a judge thought the rule-change decision was unreasonable or that the correct procedures had not been followed in arriving at it.

The Society For the Protection of Unborn Children, which has been spearheading the opposition, is unlikely to mount a legal challenge of its own but could press the Government to act. It argues that TV advertising by abortion clinics would be illegal under the European Union's Television Without Frontiers directive, which bans the TV advertising of prescription drugs and services. Paul Tully, the society's general secretary, says it will urge the Crown Prosecution Service to act if regulators relax the rules on abortion agencies.

The frustration for the watchdogs is that the controversy over such advertising is all out of proportion to its likely scale. "It's not as though you're going to see an ad for an abortion clinic popping up in the middle of Coronation Street," Andrew Brown, the chairman of the Committee of Advertising Practice, says. "Although a lot of the opposition has been orchestrated, it's clearly a very emotional issue," he adds. "We have to balance the weighty amount of public opinion with serious medical opinion, which has been light in terms of the number of responses but carries a lot of intellectual weight."

The question of how self-regulation can be extended to social media and company websites is no less thorny but has more profound long-term implications.

There are some tricky issues to be overcome. When does a piece of editorial become marketing communication? How can you police the medium effectively without infringing editorial freedom? How do you deal with the fact that advertising on social networking sites is unlike conventional advertising because no money changes hands?

Earlier this month, the AA presented its proposals to CAP on how online editorial content and marketing communication should be defined, what sanctions could be imposed on wrongdoers and how the policing of online advertising by the ASA is to be funded.

"Drawing a distinction between editorial and marketing communication is something we've spent a lot of time on," Rae Burdon, the AA's chief operating officer, says. "Obviously, our media owner members have had most to say about it. However, they recognise that consumers also need protection."

One area in which regulators have taken submissions particularly seriously is in the promotion of computer and console games - some of them very violent - to children. They took note of Dr Tanya Byron's 2008 report to the Government on the risks to children from exposure to potentially harmful material in video games, such as Tour of Duty, and on the internet.

"The industry has been under the cosh over this," Brown admits. "Our position was tougher at the end of the consultation process than it was at the beginning."

One decision that may raise some eyebrows is to allow the on-air promotion of herbal remedies despite a body of medical opinion that dismisses them as "quack" medicine.

Brown is happy to lift the ban - but under strict conditions. "If any try associating themselves with serious medical conditions or make unsubstantiated claims, they will be taken off air," he warns.

Also being subjected to restriction is the use of "free", one of the most used and abused words in advertising and the source of hundreds of complaints to the ASA down the years.

However, one other issue the new code has failed to resolve is the fear that, in drawing the statutory broadcast and the self-regulatory non-broadcast codes closer together, the regulation of UK advertising will eventually be subject to statutory control. "CAP staff were putting forward proposals for us to consider simply because they were already in the broadcast code," a CAP member says. "It shows there is an insidious threat to self-regulation."

Others see little to be alarmed about. "We take the view that if there are laws to be implemented, it's better that happens within the self-regulation system," ISBA's director of public affairs, Ian Twinn, says. "Having the courts involved in advertising matters is a grim prospect."

Any notion of statutory control by stealth is dismissed by Brown. "The only way we could get the whole industry to agree for broadcast and non-broadcast media to be within the ASA's remit was that one system wouldn't dominate the other," he explains. "Even if we wanted one code, we couldn't create it. However, we can minimise the differences between them."

Nevertheless, it's what the new rules don't yet cover - rather than what they do - that's likely to provide the real controversy in the coming months.


- Condom advertising no longer subject to 9pm watershed restriction.

- Tighter restrictions on advertising of age-restricted computer and console games to children.

- New controls on marketers collecting data from under-12s without parental permission.

- Advertisers to be prevented from over-hyping environmental benefits of their products.

- All lotteries - including National Lottery - to be subject to same social responsibility rules regardless of their different regulatory status.

- Herbal medicines allowed to advertise on TV, subject to strict controls of claims they can make.

- The term "free" must mean exactly what it says. No hidden charges.

- Ban lifted on betting tipsters advertising on TV.

- Charities allowed to air comparative advertising. - Ads for adult material to be allowed on encrypted adult entertainment channels.