How effective is the Advertising Standards Authority?

I should start this post with two big caveats:

1. My purpose is not to criticise the ASA, which in my experience is efficient and rigorous. If there are limitations, they may well stem from circumstances, which I hope to explore here.
2. This isn’t a particularly scientific analysis. It is not a prospective study, just a look at a large number of complaints and what happened to them.

The dataset comprises 74 complaints I have made to the ASA about misleading health-related claims, between July 2014 and January 2019. All but two related to advertisers’ own websites; one was a magazine ad, and another involved a paid-for ad by a chiropractic clinic on a local newspaper website. Here is how they were distributed (in no particular order):

I am not claiming that this is necessarily representative of the playing field of quack health claims. They are just things that caught my eye, or other people prompted me to look at. Homeopathy of course is popular so it’s not surprising to see it as the biggest category. Last year I looked more closely at bioresonance machines – see my piece in the HealthWatch newsletter. You might not know about CEASE therapy, but it stands for Complete Elimination of Autistic Spectrum Expression. Certain people, usually homeopaths, claim to be able to cure autism using a range of treatments that amount to child abuse. The ASA ruled against it before my complaints but the claims persist. GAPS is a dietary therapy for intestinal disorders and again autism – remember the discredited claims of Andrew Wakefield that GI problems were linked to autism.

The first finding of this crude analysis is that of the 74 complaints only one was not upheld by the ASA. I made this one as a sort of test case, as it was against the Centre for Homeopathic Education, a training organisation. The ASA said it was out of remit because “while the claims were obviously connected to homeopathy, Council concluded that they were not directly connected to the provision of a service…” (also, the response regarding a chiropractic clinic was a bit odd. I’ll discuss this later).

I appealed, the case was reviewed, and it was still out of remit. Curiously, the reviewer didn’t actually say I was wrong, he just said that the decision of Council was reasonable. I stand by my argument, that prospective students were offered a prospectus which made unwarranted claims about homeopathy, and that training in nonsense was misleading. The ASA was not interested in the validity of the training content. More about this in my previous post. 

To be fair to the ASA, an adverse ruling would have had massive implications for every homeopathy training organisation, and probably a lot more besides (eg chiropractic). Setting such a precedent would mean that the content of all training would be subject to assessment of whether it was making valid claims. I can see why the ASA sought an excuse not to open this can of worms. But I would be interested in what you readers think.

Compared with other regulators, the ASA usually responds quite quickly to complaints. The median time for an initial response was 27 calendar days, but this varied from an astounding one day to a worrying 158 days. I also tracked the time from complaint to a decision, and the median here was 36 days (+/- 1 to 232 days). However you will see from the table below that there are some missing data, as I could not trace responses for seven complaints. The median for decision time is strongly affected by the large proportion of complaints for which an immediate decision was made to refer to the compliance unit, or to advise the advertiser. Obviously a full adjudication takes a lot longer as you can see from the high maxima for both parameters.

There are several pathways by which a complaint will be handled. The ones that hit the headlines are usually adjudications, whereby a formal ruling will be approved by Council and published. If the type of claim has been previously adjudicated the ASA may refer the complaint to the Compliance Unit. This seeks to persuade the advertiser to comply by changing or removing claims. For no clear reason, the ASA sometimes approaches advertisers directly with the same objective (ie without the Compliance Unit). If they comply and remove claims, the complaint is “informally resolved”. What happens if they refuse to comply? There are two further steps. They can be placed on the Non-Compliers List, AKA “The Naughty Step”. They can sit on this for a long time, but again for no clear reason some are selected for referral to Trading Standards.

Most of you will know this mechanism, but briefly Trading Standards has been appointed as the legal backstop for the ASA, which is a voluntary regulator. More on this here. All non-compliers are subject to this rule, but it doesn’t seem to be applied very often. So let’s see what happened to my complaints. What did the ASA do?

Referred to Compliance Unit	35
Informally Resolved	2
Advertiser advised	22
Formal adjudication	4
Out of remit	3
No response	7
Referred to other regulator	1
Total	74

I am still chasing up the seven for which I heard nothing. I suspect that as I made several complaints about one hotbed of quackery, The Wellbeing Clinic in Marlborough, they have been rolled up into one and the ASA applied the same reference number to all of them. I have explained about one “out of remit” case. One of the other two was a homeopath who had moved to France. The ASA referred this to the European regulator EASA but unsurprisingly I have heard nothing more. The other was the notorious charity Cancer Active which for years has claimed that “Homeopathy Reverses Cancer“. The ASA said that the appropriate regulators were the Charity Commission and Trading Standards, but needless to say neither took any action. It’s remarkable that so few complaints actually trigger an adjudication. Looking at the level of formality, each one entails a great deal of work and I can understand if this is a resource issue.

Here is the standard wording that the ASA uses about the Compliance Unit:

The Compliance team doesn’t report to complainants or publish the details of its work but it will address the problem.

Unlike with cases which require further investigation by the ASA, where additional commentary or input from a complainant can be necessary to fully understand the issues, your complaint raises an issue which we know is a clear problem under the rules. In those circumstances, the Compliance team has all the information it needs and will work directly with the advertiser to bring about compliance. If the advertiser does not comply, the Compliance team can apply sanctions, and may ultimately refer the matter to our legal backstop, Trading Standards.

You can see from the table that about half of the complaints went to the Compliance Unit. Of these, three of the claims were removed from the advertisers’ websites, and for a further three the whole site was taken down. However it is quite difficult to track all this as some traders are adept at closing a problematic site and starting up a new one with a different domain. The remaining 29 advertisers took no notice at all. So here we have a large number of claims the ASA has known for some time are misleading, but the quacks are able to continue those claims with impunity.

Twenty-two advertisers were informally advised by the ASA regarding their ads. Of these, not a single one removed their claims. Let me remind you that all these data refer to a period of up to 4.5 years. Most traders making misleading claims have continued in business for years without suffering any effective sanctions.

“Informally resolved” is not quite the same thing as “advised”. It means that after discussions with the ASA the advertiser has agreed to to make changes in order to bring their advertising into compliance. This applied to only two complaints. One of these concerned Energise UK Ltd, which promoted a wide range of products related to an “alkaline diet”. This was the subject of a piece I wrote for the HealthWatch newsletter, with Professor David Bender. In addition to my complaint to the ASA, David and I also sent a detailed critique to Trading Standards. The ASA also went into some detail as to what was allowed under food regulations, but it may be difficult to attribute the outcome to either regulator. The key point though is that, although the non-compliant website was taken down, it was quickly replaced with a new one making much the same claims. So hardly a win for the ASA. The other informally resolved case was that of a radionics practitioner, whose website status has been “currently being updated” – for the last four years.

I will digress briefly to explain a ploy commonly used by sellers of nutritional products. These are regulated by the European Food Safety Authority (EFSA), and only claims that are on the approved list are allowed. What Energise UK did was this. They were selling various “alkaline salts” with claims that making the blood more alkaline is healthy. They then cited the claims allowed by the EFSA in support of the alkaline story. But the allowed claims have nothing at all to do with being alkaline. It happens that the products contain salts of alkali metals, and the allowed claims relate to those as trace minerals. This is rather like the “bait and switch” scam. Another product about which I complained was Turmeric Plus. The EFSA allows no claims at all for turmeric or its constituent curcumin, so guess what the company does? They add vitamin C to the product and make claims for that, which are allowed. The careless reader will think the benefits come from the turmeric when they are really only for vitamin C, which they could buy at a fraction of the cost. Having said that, hardly anyone eating a healthy diet needs extra vitamin C anyway. The ad concerned was in a magazine, and it didn’t appear in the latest issue.

I made nine complaints about CEASE therapists, in February 2018. Briefly, this practice amounts to child abuse. Homeopathy is part of it, but also mega-doses of vitamin C which cause diarrhoea. Practitioners welcome this side effect, which they see as a purging of the “toxins” which (they claim) caused the victim’s autism. They are usually vehemently anti-vaccination, and thus are a danger to public health. They are subject not only to ASA and Trading Standards regulation, but also to regulation by their professional bodies (if they have one). The Society of Homeopaths (SoH) is accredited by the Professional Standards Authority (PSA), which has placed certain conditions on renewal of registration until CEASE therapists who are SoH members are disciplined. As well as my complaints to the ASA, I reported 30 CEASE therapists to the SoH, notifying the PSA at the same time. Almost a year later only one of them has removed CEASE claims from their website. The SoH appears to have done absolutely nothing. There is far more about CEASE therapy at the excellent UK Homeopathy Regulation.

I mentioned above the non-compliers list. This only relates to online ads, ie on traders’ own websites. Hence that should be representative of my sample of ads, as all but one were in that category. There are currently 41 advertisers on the non-compliers list, the earliest dated August 2015. The ASA told me last year that advertisers stay on this list until they are referred to Trading Standards, or they decide to comply. In my sample, only two advertisers appear on this list, but one of those – Teddington Homeopathy – was there before I complained. This one, another CEASE therapist, has been listed as non-compliant since August 2015, 2.5 years before my complaint. They still have not been referred to Trading Standards as far as I can see.

Not much of this paints an encouraging picture. Here is a summary of the outcomes:

Claims removed	6
Claims unchanged	55
Site taken down	6
Claims partly removed	7
Total	74

So 74% of complaints since 2015 resulted in advertisers continuing exactly as before, with a further 10% only partly complying. Even when the ASA goes to the considerable effort of a full adjudication, the results are far from optimal. Of the four adjudications, the outcomes were:

Not one of these appears on either the non-compliers list or the referrals to Trading Standards list, after a year. Previous discussion with the ASA did not reveal any particular rule for when such referrals were made. I should mention that, as recommended by the ASA, I also complained to Trading Standards directly about cancer claims by the Shambhallah Healing Center. As you can see, there was no result from that either.

I promised to enlarge on my complaint about a chiropractic clinic. My attention was drawn to the website of the Henley Standard local newspaper, which carried a paid advertorial for Henley Chiropractic. This recommended taking newborn babies for `adjustment’, claiming that this could treat “colic, failure to thrive, and difficulty eating”. It also recommended adjustment in the absence of any symptoms. The ASA’s response included this:

We have decided not to take forward your concerns that the advertiser encourages parents to bring their babies to the clinics even if there are no symptoms, as we do not consider this issue is in breach of our rules.

I have read the ASA’s guidance for chiropractors and nothing is said there specifically about unsymptomatic babies. I suspect that the focus is on therapeutic claims, and if nothing specific is claimed in that regard then treating babies for nothing specific (in reality for nothing at all) seems to slide through the net. I maintain that there are risks with chiropractic, and as there is no evidence of benefit for unsymptomatic infants the risk:benefit balance is unfavourable. In passing, I am aware that complaints have been made to the General Chiropractic Council and both the advertorial and the video have been deleted.

Let me repeat that I am not trying to denigrate the ASA, or any other regulator. I am interested in why this situation is so dire. Let’s look first at how the ASA is funded. This comes from a 0.1% levy on the sale of advertising space, which does not include ads on businesses’ own websites. In 2006 the ASA began to regulate the latter, and you guessed it, without funding that specifically comes from that sector. The huge growth in online marketing must be creating resource issues for the ASA, and the annual report to the latest accounts (December 2017) list among the risks to the business:

• online advertising not being able to pay its way …as a result of insufficient income collected;
• difficulties of enforcing the CAP code against online advertiser “owned” advertising.

So the ASA recognises both the funding and enforcement problems. Looking at the latter, while the Committee on Advertising Practice (CAP) code, which the ASA applies, is voluntary, as I have said the legal backstop is Trading Standards. I’ll repeat here the ASA’s explanation of the background and history (it was in my previous post):

In 1988, the introduction of the Control of Misleading Advertisements Regulations (the CMARs) provided the ASA with legal backing from the Office of Fair Trading (OFT). Those regulations enabled the ASA, for the first time, to refer advertisers who made persistent misleading claims, and refused to co-operate with the self-regulatory system, to the OFT for legal action. The Regulations provided that in considering complaints about misleading advertising, the OFT was obliged to have regard to “the desirability of encouraging the control, by self-regulatory bodies, of advertisements”. The DTI (as it then was) recognised the ASA as one such body.

Guidance produced by the Office of Fair Trading (in conjunction with BERR, as it then was) on the implementation of the Unfair Commercial Practices Directive in the UK, by the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs, which replaced the CMARs), recognised that there are alternative well-founded and effective systems of regulation (including self-regulation) in place in the UK (known in the legislation – in Regulation 19(4) – as “established means”). If enforcers are satisfied that complaints and cases are clearly within the scope of these systems and can be adequately dealt with by them, they will be able to refer such complaints and cases to the relevant body (to ensure that businesses comply with the CPRs).

While the CMA has powers under the CPRs to take enforcement action in response to a complaint concerning misleading advertising, in practice the CMA will give existing compliance partners, in this case the ASA, the opportunity to deal with complaints in the first instance (see here, page 26 footnote 31).

The Government and the Courts recognise the ASA and CAP as the established means of regulating non-broadcast advertising. Both the ASA and CAP are accepted by the Department for Business, Energy and Industrial Strategy (BEIS) Trading Standards and the courts as the first line of control in protecting consumers and businesses from misleading advertising.

Now, in 2013 Trading Standards took over from the OFT as the ASA’s legal backstop. So all should be well? Not quite. Trading Standards is not a single organisation, it’s a lot of small departments operated by local government. In reality there is just one of those that takes referrals from the ASA, Camden. The last I heard, Camden had a headcount of 2.5 people. The ASA handles 30,000 complaints a year, and two and a half people are supposed to deal with the non-compliant proportion. I have found that about 75% of my small sample are non-compliant. I accept that the quackery sector may well be far less compliant than others, but even so it hardly seems reasonable to expect Camden to be fit for purpose.

Because of its quasi-official role as a regulator, the ASA provides a vital public service. But it is a private limited company, hence not subject to the Freedom of Information Act. Indeed transparency is less than optimal overall. The Compliance Unit does not publish anything about its decisions, which I find frustrating. Surely it is high time that this whole function was put on a more secure footing. The ASA should be a properly funded public body. Trading Standards should be resourced to fulfil its role as legal backstop. But it isn’t quite as simple as that.

As a voluntary regulator, the ASA does not have to worry about whether a case will stand up in court. As legal backstop Trading Standards has to do just that. Hence the threshold for action is higher for the latter than for the former. I am not sure why more cases are not referred by the ASA, but I wonder whether it’s a combination of resource constraints in both bodies, and awareness at the ASA that it will be hard to get over Trading Standards’ threshold.

As I said at the outset, this isn’t a particularly scientific analysis. The period between date of complaint and outcome endpoint varies between 4.5 years and less than one month. Hence the 74% non-compliance which I observed may be pessimistic – if we wait a few more months perhaps some ads will become compliant. Indeed as I mentioned above Henley Chiropractic removed its video, and the newspaper removed the advertorial. However for online ads changes can be made in minutes and there is no excuse for taking months to do it, so I would not expect a significant effect of waiting longer.

I hope that both Trading Standards and the ASA read this post, and comment on my guesswork as to what’s going on. They should both rest assured that I know they are doing their best in difficult times.