Misleading Advertising Quick Facts
Relevant or Related Legislation:
The Control of Misleading Advertisements Regulations 1988; Broadcasting Act 1990; the Control of Misleading Advertisements (Amendment) Regulations 2000; the Control of Misleading Advertisements (Amendment) Regulations 2003.
Key Facts:
• Advertising in the UK is mainly controlled through codes of practice. In the case of advertisements in the non-broadcast media, the Advertising Standards Authority (ASA) oversees and acts to ensure compliance with the British Code of Advertising, Sales Promotion and Direct Marketing.
• The Code is the body of rules the advertising industry draws up and agrees to abide by. In essence, it requires all advertisements to be legal, decent, honest and truthful and to be prepared with a sense of responsibility to consumers and society at large.
• The Control of Misleading Advertisements Regulations 1988 - SI 1988/915 (as amended by the Control of Misleading Advertisements (Amendment) Regulations 2000 - SI 2000/914), implement EU Directives 84/450/EEC and 97/55/EC on misleading and comparative advertisements. They provide the legislative back-up to the self-regulatory system in respect of advertisements which mislead or which do not comply with the conditions under which comparisons are permitted in advertisements.
• The Regulations require the Office of Fair Trading (OFT) to investigate complaints. They empower OFT to seek, if necessary, an injunction from the courts against publication of an advertisement. More usually, however, it would initially seek assurances from an advertiser to modify or not repeat an offending advertisement. Before investigating, the OFT can require that other means of dealing with a complaint, such as the ASA system mentioned above, have been fully explored. Action by the OFT therefore usually results only from a referral from the Advertising Standards Authority where the self-regulatory system has not had the required impact.
• The Office of Communications (OFCOM) is the regulator for advertising in the broadcast media (TV and Radio). Broadcast advertisements are controlled by codes of practice. OFCOM has contracted out control and enforcement of the codes to the ASA. Government policy in respect of this sector rests with the Department for Culture, Media and Sport.
Frequently Asked Questions (FAQs)
Q1. What should I do if I think that an advertisement has misled me in some way?
Q2. What is the ASA?
Q3. What will the ASA do with my complaint?
Q4. What if I am not happy with the decision of the ASA on my complaint? What further recourse do I have?
Q5. What is the British Code of Advertising, Sales Promotion and Direct Marketing?
Q6. What if I notice that a misleading advertisement is repeated after action by the ASA?
Q7. And if this doesn't work?
Q8. What if I think that an advertisement is so misleading or potentially damaging that more immediate action might be justified?
Q9. How do I complain if I find that an advertisement is offensive?
Q10. What if I find that an advertisement is so offensive, indecent or obscene that I consider it may be illegal?
Q11. Which advertisements on websites are covered by the ASA?
Q12. Who regulates advertisements on the TV or radio?
Q13. What about advertisements concerning financial matters?
Q14. Who regulates misleading advertisements for services provided over the telephone?
Q15. What does BERR do?
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Q1. What should I do if I think that an advertisement has misled me in some way?
In the first instance contact the Advertising Standards Authority (ASA) with as much detail of the advertisement as you can provide, a copy if possible and details of where and when it appeared, and the reasons you believe the advert is misleading. It is to the ASA that all complaints about non-broadcast advertisements should be made in the first place.
Q2. What is the ASA?
The ASA is the independent body that is responsible for investigating complaints of breaches of the British Code of Advertising, Sales Promotion and Direct Marketing, the industry self-regulatory rules that apply to all advertisements in non-broadcast media.
The ASA will look into all complaints about alleged breaches of the Code. They will require you to put your complaint in writing, either by post, fax or by e-mail, in order that they investigate your complaint fully and accurately, and allow the advertiser to respond to the precise point at issue. An electronic complaints form may be submitted via the Authority's website at www.asa.org.uk/.
Q3. What will the ASA do with my complaint?
The ASA will investigate and keep you informed of progress and the outcome. The Authority can issue a ruling or 'adjudication' against the advertiser, demanding the removal of the advertisement and assurances that the misleading aspects will not be repeated. The ASA's adjudications can be viewed on their website, www.asa.org.uk
Q4. What if I am not happy with the decision of the ASA on my complaint? What further recourse do I have?
You can ask the Independent Reviewer of ASA Adjudications (see contact details at end of Q&A) to review an ASA decision. They will consider reviewing a decision of the ASA if you can provide new evidence or can point to a substantial flaw in the Council's adjudication. However you need to request the review within 14 days of the adjudication being notified to you. For the reviewer's precise Terms of Reference, see 60.38 of the Code at www.asa.org.uk.
Q5. What is the British Code of Advertising, Sales Promotion and Direct Marketing?
The Code is rules agreed by the advertising industry and endorsed by the ASA. The Code requires all forms of non-broadcast advertising to be legal decent, honest and truthful and to be prepared with a sense of responsibility to both consumers and society. In addition to general rules, the Code contains specific rules on areas of particular concern such as advertising to children, advertising of alcohol and health and beauty products and therapies. The Code can be viewed and downloaded from the ASA website, or can be obtained by contacting the ASA.
Q6. What if I notice that a misleading advertisement is repeated after action by the ASA?
You should bring this to the attention of the ASA who will take further action. The system overseen by the ASA is self-regulatory and relies on a responsible approach by advertisers. If an advertiser chooses to ignore an ASA ruling, the ASA can call on the industry to take action against the advertiser by, for example, alerting publishers that the advertisements should not be accepted or by applying other sanctions.
Q7. What if further action by the ASA doesn't work?
In the end, if self-regulation proves ineffective, the ASA can refer the case to the Office of Fair Trading (OFT) for investigation under the Control of Misleading Advertisements Regulations. If the OFT agrees that an advertisement is misleading it can apply to the courts for an injunction to prevent publication of the advertisement. If the advertisement is repeated again, it would be treated as contempt of court and the advertiser could be fined. Although the OFT can take action in response to direct complaints from the public it will normally only act after the complaint has been investigated by the ASA.
Q8. What if I think that an advertisement is so misleading or potentially damaging that more immediate action might be justified?
Suppose, for example, you have seen something advertised in a shop window as the cheapest price in the area, and then seen the same item on sale up the road in a different shop at a cheaper price, or you have seen an advert for goods you know to be dangerous. In such cases you should contact your local authority trading standards department. They can investigate the matter and if necessary take action under relevant consumer protection laws. Traders may be committing criminal offences by advertising in a misleading way and Trading Standards Officers have powers to take action if there is proof that a consumer protection law has been broken They will consider the best course to take in each case.
Q9. How do I complain if I find that an advertisement is offensive?
Lodge your complaint with the ASA. The British Code of Advertising, Sales Promotion and Direct Marketing states that advertisements in the non-broadcast media should contain nothing that is likely to cause 'serious or widespread offence' and that particular care should be taken to avoid causing offence on the grounds of race, religion, sex, sexual orientation or disability. The ASA will order advertisements that it considers offensive to be withdrawn. Where a poster is considered to be unacceptable by the ASA, the industry is required to take down the offending advertisement and the advertisers may be required to have future adverts cleared by the industry's Copy Advice team in advance. Q12 deals with complaints about adverts in the broadcast media.
Q10. What if I find that an advertisement is so offensive, indecent or obscene that I consider it may be illegal?
The Obscene Publications Unit of the Home Office will be able to offer advice on the legal position. It would be for the police to investigate complaints of obscenity.
Q11. Which advertisements on websites are covered by the ASA?
The ASA will investigate complaints about paid-for advertisements that appear on a third party's site, including banner ads, pop-ups, commercial e-mails and promotions.
The self-regulatory system does not cover the content of an advertiser's own website, apart from sales promotions, in the same way that it does not cover advertising in shop windows. The ASA does not seek to apply the Code to editorial content. Website content is, however, still governed by the law, such as the Trade Descriptions Act, and the Control of Misleading Advertisements Regulations and complaints can be taken to Consumer Direct.
Q12. Who regulates advertisements on the TV or radio?
The Office of Communications (OFCOM) is ultimately responsible for regulating advertisements on commercial terrestrial TV, radio, cable and satellite services. There are appropriate advertising codes in this area covering amongst other things misleading advertisements and taste and decency. Complaints about such advertisements should however be made to the ASA and not to OFCOM. OFCOM has delegated its powers to the ASA who look into all complaints about broadcast adverts. Such adverts are also controlled by consumer protection laws.
Q13. What about advertisements concerning financial matters?
These Advertisements are regulated by the Financial Services Authority (FSA) in the first instance. The Authority regulates the activities of investment, general insurance and banking businesses.
Q14. Who regulates misleading advertisements for services provided over the telephone?
The Independent Committee for the Supervision of Telephone Information Services (ICSTIS) regulates the operation of premium number telephone lines, including how they are advertised.
Q15. What does BERR do?
The Department for Business, Enterprise and Regulatory Reform (BERR) is responsible for ensuring that the law on misleading advertising and trade descriptions is up to date and that there are effective means in place for ensuring that consumers are not misled by advertisements. Further information can be found on our website at http://www.berr.gov.uk/consumers/buying-selling/Adprice/.
Enquiries should be directed to one of these bodies:
Advertising Standards Authority (ASA)
Mid City Place
71 High Holborn
London WC1V 6QT
Telephone 020 7492 2222 Fax: 020 7242 3696
Web: www.asa.org.uk
Independent Reviewer of ASA Adjudications
Bloomsbury House
74/77 Great Russell Street
London, WV1B 3DA
Office of Communications (OFCOM)
OFCOM Contact Centre
Riverside House
2a Southwark Bridge Road
London, SE1 9HA
Tel: 0845 456 3000 Fax: 020 7981 3333
Web: www.ofcom.org.uk/
Office of Fair Trading (OFT)
Fleetbank House
2-6 Salisbury Square
London, EC4Y 8JX
Tel: 020 7211 8000
Web: www.oft.gov.uk
Home Office
Obscene Publications
Home Office
50 Queen Anne's Gate
London, SW1H 9AT
Tel: 020 7273 4000
Web: www.homeoffice.gov.uk
The Financial Services Authority (FSA)
25 The North Colonnade
Canary Wharf
London, E14 5HS
Tel: 020 7676 1000
Web: www.fsa.gov.uk
Phonepayplus (formerly ICSTIS)
Clove Building
4 Maguire Street
London, SE1 2NQ
Tel: 020 7940 7474
Web: www.phonepayplus.org.uk
We do not deal with individual consumer enquiries or complaints. If you have an enquiry please contact Consumer Direct at: www.consumerdirect.gov.uk (Tel: 08454 04 05 06). Consumers in Northern Ireland should contact Consumer Line on 0845 600 6262.