FACING THE MUSIC

Fail to heed the law, stretch the truth or release an ad that’s socially irresonsible and you’re in line for a slap from the Advertising Standards Authority. Simon Fogarty shows you how to avoid that fate. When you are creating an advertisement, consider

The Advertising Standards Authority (ASA) is a voluntary body that reviews advertising to make sure it complies with the law, is truthful and socially responsible. Members of the ASA include newsprint media, radio, TV and billboard companies and it reviews complaints made about any advertising and issues rulings on whether an advertisement breaches any of the ASA codes.

If a complaint is upheld the ASA will ask the advertiser, agency, and media to withdraw the advertisement. Those parties invariably comply with that request.

WHO CAN MAKE A COMPLAINT?

Any member of the public can make a complaint at no charge or a competitor can make a complaint by writing to the ASA and paying an official fee of $10,000. So, when you are creating an advertisement, consider how the public and competitors will react to the advertisement.

ABSOLUTE CLAIMS

You should avoid making absolute claims unless you can prove they are true. If you make an unqualified claim that your safety glass is the strongest glass in the market then you must be able to prove that claim is true. If the glass you sell is only the strongest in a particular category, e.g. 10mm safety glass, your advertisement should say that. If it doesn’t, the ASA will compare your product with all safety glass. That will increase the chance of the ASA finding that your claim is not true.

SCIENTIFIC CLAIMS

If you make claims like ‘tests prove’ or ‘studies show’ then make sure you have scientific test results that support the claim. The evidence needs to be robust and should be peer reviewed. Anecdotal evidence from customers is not sufficient to support scientific claims.

COMPARATIVE ADVERTISING

You should assume that competitors will scrutinise comparative advertisements. For example, if you claim that your bank fees are lower than the bank fees of a competitor, ensure that you are comparing similar accounts. If you have compared the fees of a child’s savings account with the fees of a competitor’s business account—and don’t make that clear in the advertisement—the ASA is likely to say your advertisement breaches the code. If you are saying that your product ‘contains more’, ‘lasts longer’, or ‘goes faster’ then make sure that you are comparing like with like. You must also be sure that the claims you make about your own product are true.

DOUBLE MEANINGS

Take care when using words or phrases that have more than one meaning. Often an advertisement will contain words or phrases with double meanings. The first meaning will be humorous and the second meaning will relate to an attribute of the product. The humour in the advertisement does not absolve you from making sure the claim about the product or service is accurate. The ASA will still look at the product claim. If the claim isn’t correct the ASA is likely to rule that the advertisement breaches the code.

For example, someone might advertise their 24W eco bulb as the brightest 24W bulb available but in the advertising make a play on intelligence. If the bulb isn’t the brightest 24W eco bulb, the clever play on the word ‘brightest’ would be unlikely to overcome an objection to the ASA.

CONSIDER THE MEDIUM YOU ARE USING TO ADVERTISE

It is important that you consider your medium when preparing your advertisements. If you advertise across several mediums, make sure that all of the advertisements are acceptable. For example, on the internet or TV the visual element of your advertisement may contain information that is critical to how the ASA will interpret your advertisement. However, if you only use the voiceover on the radio, the advertisement may be misleading because the additional information in the video or other images is gone.

USING THE ASA AS A WEAPON

One other thing to remember is that you can also use the ASA as a weapon against unscrupulous competitors. The cost of running a complaint through the ASA is low when compared with the cost of litigation. The ASA is also effective because, even though complying with a decision is voluntary, members comply with the ASA’s decisions. That means TV, radio and newspapers won’t run the advertisement until it is changed.

Simon Fogarty is senior associate at AJ Park. simon.fogarty@ajpark.com.