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Do you advise on advertising materials for your business? Do you know where to start? Advising on what your advertising and sales colleagues can and can’t say can be a matter of “feel” and instinct – could it be misleading, could it be deemed offensive, does it inappropriately target children or the vulnerable: all the pitfalls that advertising lawyers try to deal with. Nobody wants to deal with an ASA investigation or worse, interest from your local trading standards authority. Even if the complaint isn’t upheld, it is time-consuming to deal with.
But how do you know what’s permitted and what isn’t? The ASA’s adjudications are a good starting point. Although they are not binding, they do provide examples of acceptable and unacceptable advertising. Did you know that the ASA holds a massive database of its past adjudications going back to 2010 on its website? We did a search on the ASA database today for the word “upheld” and found over 4000 adjudications. That’s without the complaints that were not upheld, and without the complaints that the ASA dealt with informally. And it doesn’t include all the complaints the ASA receives and decides not to pursue. What would help you to develop that “feel” and instinct for what is allowed and what isn’t? You can obviously read the rules in the CAP and BCAP Codes, but how do you find the ASA adjudications of relevance when there are so many?
What you may not have noticed is that the ASA database has a fairly sophisticated advanced search function, which allows you to slice and dice via industry sector, type of claim made, the rules of the CAP and BCAP Codes which the ASA was considering, the media in which the advertising appeared etc.
So for example, if you work in the retail sector and want to find adjudications relating to supermarkets’ price guarantee claims appearing in TV advertisements, you can do that. Or you could do a search on press advertisements for telecoms providers dealing with broadband speeds. Or if your organisation sells alcohol you could see what adjudications have been made about the issue of appealing to children.
You can also use it to see what sort of complaints are being made against your competitors, how many complaints against them the ASA is investigating and what the outcome of the complaints was. It may give you an idea about what to avoid saying in your own advertising, and what may be acceptable in a similar context.
As well as the database of rulings, the CAP website has a lot of guidance notes and helpnotes which may be of relevance to your sector or type of product.
Finally, if you subscribe to the Lexis®PSL in-house product, you may find our risk management guide on advertising helpful.
If you have any tips for your fellow in-house lawyers about how to deal with advertising law compliance please share them in the comments section.
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