Advertising Standards Authority

Part of Notice Period for Amendment to Public Bills – in the House of Commons at 10:00 pm on 23rd May 2016.

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Photo of John Glen John Glen Conservative, Salisbury 10:00 pm, 23rd May 2016

This evening, I want to raise an ongoing challenging issue with the Advertising Standards Authority Ltd, commonly known as the ASA, and related companies, including the Committee of Advertising Practice Ltd, the author and publisher of the CAP code.

I have been involved with two separate cases relating to the ASA on behalf of constituents. I intend to spend the balance of my time on the second, but the first is the case of Innovate Product Design, an excellent Salisbury company that provides a complete service to inventors, from patent search and product protection to design and prototyping and advice on marketing. It has had six complaints, not upheld, against it but still has outstanding concerns about the material subject to the ASA’s ruling and whether it was within the scope of the advertising code. I hope to resolve this with a meeting that I have asked Craig Jones of the ASA to convene with ASA representatives, but for now it would be helpful if the excellent Minister could confirm that Innovate has no outstanding ASA complaint against it and that it has never had a complaint upheld against it. It is a company that offers a first-rate service and there is nothing to suggest that it has misrepresented anything in its promotional literature.

The second of the two cases, which I will speak about in some depth, relates to my constituent Dr Alyssa Burns-Hill, PhD, MSc, fellow of the Royal Society for Public Health and member of the Institute of Health Promotion and Education. Dr Burns-Hill first came to see me on 13 November 2015 and explained that in November 2012 the ASA had upheld one complaint made against her. The first part of the complaint was that she was making misleading claims about saliva testing being able to detect hormone levels. My constituent believes that the study submitted as evidence was cited inappropriately in the ruling, demonstrating a lack of deep expertise in interpreting health-related data. The second part of the complaint was that she was being misleading in using the academic title “Dr”, as while she had a PhD, she was not a medical doctor.

Following the ruling, Dr Burns-Hill was told in an email from the ASA to change her website, business cards and publications to say only her name followed by “PhD” and then the phrase “doctorate in healthcare”, followed by the rest of her post-nominals, including her MSc and professional memberships. Dr Burns-Hill refused to comply as she felt it conveyed that she was the holder of two doctorates, a PhD and a doctorate in health. After being rebuffed by Lord Smith of Finsbury and Guy Parker, managing director of the ASA, she went through the extended process of an independent review at her request, while the original judgment was still published on the ASA website. After the independent review, the ASA partially admitted its mistake but still insisted that she had to qualify that she was not a medical doctor next to any listing of her qualifications. She had already made it absolutely explicit on her website’s “About” page that she was not a medical doctor as well as issuing substantial information on her qualifications and work practice, as was acknowledged in the ruling. Yet Dr Burns-Hill is held up by the ASA as a misleading advertiser, and is even referenced in the CAP advice and guidance.

Dr Burns-Hill refused to comply with this ruling, as she felt that the proposed remedy was still inconsistent with established conventions of listing academic qualifications and served only to justify the ASA’s initial ruling. In response, the ASA imposed sanctions on her, including taking out Google adverts claiming she was a misleading advertiser, which she claims has damaged her business and reputation in what is a narrow and specialist field. She also contends that, as a means of persuasion or sanction, the ASA is itself in breach of the Consumer Protection from Unfair Trading Regulations 2008. She was also advised that to pursue the case through judicial review would cost at least £20,000—a prohibitive cost by any estimate.

Since first speaking to Dr Burns-Hill about her case, I have been in contact with the ASA and have been very grateful to have had an in-depth phone conversation just before Christmas last year. I subsequently received a detailed letter from Craig Jones, the director of communications at the ASA. None the less, my constituent still feels aggrieved, as she feels that the underlying issues surrounding her case have not been adequately addressed or remedied.

First, there are legitimate concerns about the transparency of the ASA in terms of its processes and in particular with regard to its status and relationships to trading standards. I have looked into the legal framework within which the ASA operates, and I realise that it will always be complex for a self-regulatory body with a legal backstop. I understand that the ASA is recognised by the courts and the Government as the “established means” for the purposes of section 19(4) of the Consumer Protection from Unfair Trading Regulations 2008. Judicial review is therefore possible because the ASA is recognised as a public body. However, the advertising codes it enforces are not enshrined in law; it is funded by industry and its council is appointed by industry, so it is also a self-appointed, regulatory body. I do not doubt that the legal status of the ASA is sufficiently robust, but it is extremely complex, and was certainly opaque to my constituent, a well-educated professional.

In preparing for this debate, I have even heard differing views from the ASA and from the House of Commons Library on the ASA’s legal position and authority, which I think suggests that there is unacceptable and misleading uncertainty. This has fuelled Dr Burns- Hill’s sense that the ASA is not operating legitimately and is not accountable in the way that statutory bodies are.

I am aware that similar concerns about the ASA have been raised previously in the other place by Baroness Deech. My constituent also feels that the recent South African High Court judgment against ASA Ltd reflects some of these concerns, and I understand that barrister Richard Eaton is raising questions with regard to the Competition and Markets Authority and its relationship to the ASA. I believe that there are some genuine transparency concerns here. The reasoning of the independent reviewer is not publicly available, and nor are the details of any original judgments that have been subject to revision, although it is noted when a judgment has been revised.