The ASA: still not fit for purpose
Easyjet ad complained about by Adfree Cities and Badvertising in November 2021. The ASA declined to investigate as its Environment Research project was ongoing
The need to regulate advertising claims from companies - and those by big polluters in particular - is gaining traction at the political level in the UK, France, the Netherlands, Sweden and Australia. In the UK, the Green Party recently adopted a motion to ban high-carbon adverts at its party conference last October 2023. The motion aims to phase out the promotion of highly polluting products and activities, like SUVs and flights, but also meat and dairy and fast fashion, acknowledging their incompatibility with a “sustainable society or liveable future.”
In a recent address (20th November) to the House of Commons on the Digital Markets, Competition & Consumers bill (DMCC) - currently under discussion in Parliament as a replacement for the 1998 Competition Act - Green MP for Brighton Pavilion, Caroline Lucas, stressed that an overhaul of advertising regulation is absolutely essential, since the current system is “slow and opaque and is definitively failing”.
“The UK’s Advertising Standards Authority is not an independent regulator; it is self-funded by the advertising industry. Any complaints which the ASA handles are essentially therefore marking its own homework, so we need to look at this regulatory gap as a matter of urgency. We should have a regulator that is independent and transparent and one that can take timely action.” - Caroline Lucas MP in her address to the HoL on the DMCC Bill, November 20 2023.
Caroline Lucas tabled two main amendments to the DMCC Bill namely, an amendment (207) on the need to align these revisions with achieving net zero carbon emissions by 2030 and another (208) about putting in place new mechanisms for advertising controls, which we recommend in our report on the failings of the ASA to regulate environmentally misleading and high-carbon advertising. In this report, Toothless, we reached similar conclusions on the ASA’s lack of impartiality and the need for a regulator at arm’s length of the industry.
Furthermore, the report makes six clear recommendations to revamp advertising regulation in the UK in order to effectively address high-carbon and misleading green advertising. These are as follows:
A government ‘tobacco-style’ law banning high carbon ads
Make the ASA a truly independent body
A mandate for legally binding rulings and fines in a proactive manner
Enforcement powers to suspend an advert pending investigation
A more transparent and efficient complaint process
Clarity on the UK’s advertising & marketing regulatory architecture
The ASA, as stated on its website, is confident that having two thirds of its Council members - its highest decision-making authority - as independent from the ad industry is sufficient. The ASA also argue that their funding is partially raised through a so-called ‘arms-length levy’, which amounts to 0.1% on the cost of buying advertising space and 0.2% on some direct mail. We believe that an effective regulator is one that can prove complete financial and decision-making independence from the industry that it is supposed to regulate. Under its current structure, the ASA is unable to meet this requirement.
On the need for timely action by the ad regulator, as raised by MP Lucas, our report points to another failing of the ASA: addressing complaints within an adequate time frame. In a review of 12 complaints sent to the UK advertising watchdog between 2021-2023, of six that were investigated, five took months to be given final rulings, while one (HSBC) took over a year. This lack of timely regulation is unacceptable given the urgency that the climate and ecological emergency calls for.
We applaud the ASA’s latest strides in tackling misleading green advertising via consumer research work and new specific guidance; the regulator has seemingly woken up to its role in tackling misleading green claims. However, our analysis stresses that given the critical need to address greenwash and high-carbon advertising as a requirement to meet the UK’s industry’s legally binding carbon targets, the ASA’s work is barely scratching the surface.
The latest addition to the ASA’s repertoire is its new artificial intelligence (AI) digital tool, which was behind the recent ban of greenwash adverts by three major airlines - Lufthansa, AirFrance and Etihad. In November this year, the regulator launched its new strategy together with its AI-Assisted collective ad regulation tool. While they so far haven’t disclosed any details about the specific workings of this tool, the ASA is aiming to use it in an effort to deliver better ad regulation as part of their Net Zero plan amongst other objectives.
However, an AI tool cannot and will not prevent ongoing high volumes of greenwashing at source. The regulator also finds itself in an arms race with companies who, with the help of marketing agencies, are able to exploit loopholes in advertising Codes to keep advertising their harmful products and services. Until new enforceable regulation is introduced by the Government to put a stop to big polluters’ propaganda, no new piecemeal environmental guidance or AI-assisted tools by the ASA will go far enough to deal effectively with the extent of the problem. As we and many others have called for, on repeated occasions, a tobacco-style ban and timely restrictions on high-carbon advertising are needed now.