Positive Health Online

The issues explored in this article are of vital importance to the success of your business and to the freedom of your patients to choose a CAM practitioner and treatment. If you read no further, please take a moment to look at the links given at the end of the article.  

The activities of the Advertising Standards Authority Ltd have been the subject of much debate both in so far as they relate to the practise of Complementary and Alternative Medicine (CAM)[1] and, more generally, in the House of Lords further to questions tabled by Baroness Deech.[2, 4]

This article aims to initiate discussion about the accountability of the ASA. It also explores how CAM practitioners and their professional organizations might together pursue a strategy to bring about the proper accountability and regulation of the ASA.

Whilst preparing this article, I made enquiries of the Competition and Markets Authority (CMA) for the purposes of my preliminary research into the role of the ASA, with particular reference to the following publication issued by the CMA in March 2014 (CMA7):

Consumer Protection: Guidance on the CMA’s approach to use of its consumer powers

I refer to this, below, as "the Guidance”. It may be found at the following link:

www.gov.uk/government/uploads/system/uploads/attachment_data/file/288624/CMA7_Consumer_Protection_guidance.pdf

My contact with the CMA did not specifically refer to CAM but, instead, focused more generally on the relationship between the CMA and the ASA. In particular, I sought to establish whether the CMA has power and discretion to intervene in a case under investigation by the ASA and in what, if any, circumstances the CMA, as the self-proclaimed “UK’s Primary Competition and Consumer Authority”, could review the market-wide activities of the ASA.

The outcome of my research and the information and advice that I received from the CMA is, of course, relevant to the businesses of CAM practitioners. It is also relevant to their patients insofar as it could affect their freedom to choose a CAM practitioner or treatment.

As a private Limited Company the ASA is not listed as an organization about which a complaint can be made to the Parliamentary & Health Ombudsman[3] notwithstanding that it is clearly performing a public regulatory function. Neither is the ASA subject to the Freedom of Information Act.

Further to my preliminary research, I suggest that the best strategy would be to lobby for change at the ASA by demanding that its co-working partners (which include the CMA, OFCOM, TSS - Trading Standards Services) and the Government's Department for Business, Innovation and Skills investigate the lawfulness and probity of their respective relationships with the ASA. They could then impose rules and amend their policies to require necessary accountability and reasonableness in the activities of the ASA.

So the objective is to bring pressure to bear on these co-working partners. By using their existing powers and influence, they could require the ASA to update and improve its regulatory function and processes. This could especially be the case with regard to the ASA’s alleged failure to adhere to the principles of ‘Natural Justice’, ‘Good Regulation’, 'Best Practice', ‘Transparency’ and to provide a ‘recourse to a court or administrative tribunal as a remedy’ in accordance with EU Directive 114 of 2006. Rules should also be imposed requiring the reasonableness of the whole of the ASA adjudications process to be fully and properly overseen, both by way of Judicial Review court proceedings and through the jurisdiction of a truly independent and effective tribunal.

I refer you to the following. Please note that the italic typeface has been added by me and that I have shown the relevant paragraphs of the Guidance in brackets.

1. The CMA states:

“…that the ASA is an independent self-regulatory body that endorses and administers the UK advertising codes to ensure that advertisements are legal, decent, honest and truthful. The CMA, a non-ministerial government department, does not authorize or regulate the ASA…”

However, as indicated below, the CMA does appear to have ‘authority’ that could bring about change at the ASA in relation to cases referred to it by the CMA. If the CMA were to use this authority, it could encourage other co-working partners also to take action.

With specific reference to the Guidance and further to the enquiries that I have made of the CMA, the CMA further states as follows:

“...The CMA’s use of established means:

“The CMA has a lead and coordinating role amongst a number of consumer regulatory agencies under consumer law, but it has no powers to take enforcement action against these bodies or to require them to meet standards that it sets. The CMA's only relevant discretion in this regard is in deciding to whom to refer cases... the CMA will have regard to the principles as outlined in its Consumer Protection: Guidance on the CMAs approach to use of its Consumer Powers (CMA7) when working with established means. The CMA we will only consider making referrals to established means/compliance partners that appear to us to meet the principles described in the guidance...”

In summary, the CMA confirms that:

“…The ASA is considered to be an ‘established means’ in the area of broadcast and non-broadcast advertising…”

and also that:

“…the CMA considers established means as a body which can meet the principles listed in paragraphs 4.28 to 4.38 in Consumer Protection: Guidance on the CMAs approach to use of its Consumer Powers (CMA7)…’ (the Guidance).

Paragraphs 4.34 and 4.35 of the Guidance require the ASA (as 'established means') to “demonstrate’ (amongst other things) the following ‘Essential Qualities/Systems':

“…(that) it has regard for the principles of better regulation and the Human Rights Act with regard to the rights of consumers and traders/businesses…”

and that:

“…there is an appropriate degree of independence in governance…”

and further that:

“…it is law abiding in its own operation...”

Therefore, in the event that the ASA can be proved to have contravened all or any part of paragraphs 4.34 and 4.35 (or any of the provisions of paragraphs 4.28 to 4.38) and in view of the wider-market consumer protection issues, it is arguable that the CMA could investigate such contravention, following which the CMA could also exercise:

“... its discretion to refer or not to refer to a compliance partner and whether to intervene in any case following referral…’ (paragraph 4.38).”

Baroness Deech - Photo by John Cairns

In her contribution to the House of Lords debate on 29th June 2015 (2) addressing the performance of the ASA, Baroness Deech said:

“...My Lords, I declare an interest as a partly successful recent complainant. The Minister will know that the ASA is a self-regulating body and is funded at one remove by the industry. In those circumstances, does she think that it is acceptable for such a body not to have to observe the rules of natural justice when hearing complaints? There is no obligation to share material with both sides. The authority sometimes fails to seek expertise and evidence when necessary, fails to give adequate reasons for its judgments, fails to follow precedents and makes its own appointments. What assurance can she give us that the governance of this body will be brought into line with that of other complaints-handling bodies? Should it not be on a statutory basis, ensuring that justice is done to both sides..?”  

In her address to the House of Lords on 29.10.15 (4), Baroness Deech also said:

 (the ASA)”...is not accountable to anyone outside the industry - indeed, it is hermetically sealed. Successful judicial review is very difficult, as it is directed only to the lawfulness of the ultimate review by the independent reviewer - one person - and in general cannot look at the reasonableness of the ASA decision itself…”

So, is the ASA “law abiding in its own operation” according to paragraphs 4.34 and 4.35 of the Guidance? If not, should the CMA be referring cases to the ASA? Are there ASA cases in which the CMA should intervene? Is the ASA having regard to “…the principles of better regulation and the Human Rights of consumers and traders/businesses…”?  More generally, are the Principles set out in paragraphs 4.28 to 4.38 of the Guidance being fully complied with by the ASA in its capacity as an "established means” partner working with the CMA?

2. The CMA also states that:

“...The Consumer Concurrencies Group (CCG):

The cases undertaken by the ASA are not the subject of the clarifying and best practice discussions by the CCG referred to in the Guidance on the CMA’s approach to use of its consumer powers...”  

This suggests that, although the ASA is a member of the CCG for the purpose of supporting “concurrent regulation” and although the CCG discusses “clarifying and best practice”, the ASA itself is not required by the Guidance to apply such ‘regulation’ and ‘clarity and best practice’ when investigating and adjudicating upon its own cases when dealing with advertising complaints. 

The CMA further states:

“...The ASA is not a regulator for the purposes of the Regulators Code and therefore is not subject to its principles…”

and that:

“…specific transparency principles are a CMA commitment rather than a commitment of the ASA…” 

Does this general lack of accountability accord with the aims of the Principles set out in paragraphs 4.28 to 4.38 of the Guidance, to which the ASA is subject as ‘established means’? Should the CMA investigate and resolve this apparent conflict?

3. The CMA further states that:

“...Directive 2006/114/EC:

“The Business Protection from Misleading Marketing Regulations 2008 (BPRs) implement the Directive 2006/114/EC. A breach of the BPRs can be enforced by the local authority Trading Standards Services (TSS), the CMA and the Department of Enterprise Trade and Investment in Northern Ireland (DETINI). The TSS and DETINI have a duty to enforce the BPRs and the CMA has a power to do so…”

Lord Palmer of Childs Hill said in the House of Lords debate about the performance of the ASA, held on 29th June 2015 (2):

“…(the) EU Directive requires the UK to provide effective means... to combat misleading advertising...with recourse to the courts…the ASA is not a court…”.

In his contribution to the House of Lords debate on the ASA, held on 29th October 2015 (4), Lord Stevenson of Balmacara said:

“...can we be absolutely certain that the current arrangements satisfy the EU directive in its full sense? Enough has been said to raise a question for me about whether their particularity is sufficient to do it. I am particularly struck by the points made about access to the courts should there be a problem in resolving disputes. Of course there is an independent adjudicator and judicial review, but I do not think that that is what the EU directive meant…” 

Also in that debate, Baroness Deech said:

“...The ASA structure may mean that the UK is in breach of European Union directive 114 of 2006, which requires recourse to a court or administrative tribunal as a remedy…”  

So, is the ASA in breach of EU Directive 114 of 2006 and, therefore, not complying with paragraphs 4.34 and 4.35 or, generally, with the Principles set out in paragraphs 4.28 to 4.38? Should the CMA exercise its ‘power’ to investigate and resolve this possible conflict?

4.  The CMA states:

“...Public authorities do not have the power to discipline the ASA, and since it is not a public regulator it is not subject to the Legislative and Regulatory Reform Act 2006 and the Regulators Code made under that Act. The CMA does not make legislation, and any questions you may have about the UK's consumer and regulatory landscape are best pursued with the Department for Business, Innovation and Skills…”

and also that:

“….the ASA is a private self-regulatory agency set up and funded by the advertising industry. It is not a part of government or the wider public sector, has no statutory powers in its own right and performs a public enforcement role only to the extent that it has contracted with OFCOM to do so in the broadcast advertising sector. The ASA acts under contract for OFCOM in line with a Memorandum of Understanding…”

The Department for Business, Innovation and Skills should be initiating legislation to properly regulate the ASA and OFCOM should be asked to review the contractual provisions and the probity of its Memorandum of Understanding with the ASA.

I conclude this article with the following words said by Baroness Deech at the House of Lords debate on 29^th October 2015 (4): 

“…The ASA suffers from all those defects: the control of the funders over appointment and setting standards. The ASA is not a government agency, not elected, and not overseen. It is funded by the advertising industry through the levy collected by the Advertising Standards Board of Finance (ASBOF). The chair of the ASA is appointed by ASBOF. The council members appear to be appointed by the chair alone, and the fact that the majority are not connected with the advertising industry does not make the ASA independent in the regulatory sense. The codes of practice are written by an industry committee, the Committee of Advertising Practice - CAP - which shares an executive with the ASA.

“Therefore the code-writing, administration, appointments and funding are entirely in the hands of the advertising industry. There is no external input at all, save for the very tiny consumer input, the Advertising Advisory Committee, which gives advice only to the Broadcasting Committee of Advertising Practice, and can be ignored after the advice is received. The chair and council members of the ASA double up as the company directors of the ASA with “oversight”. The ASA is not subject to freedom of information requests. Three industry panels advise the CAP and the ASA. It is not accountable to anyone outside the industry - indeed, it is hermetically sealed…The time has come, after 50 years of lagging behind best practice in regulation, to bring the ASA into the 21st century…”

The above indicates that the ASA does not have an ‘…appropriate degree of independence in governance…’ (Guidance: 4.35).

The concerns of Baroness Deech must be the concerns of all CAM practitioners. Their professional organisations need to combine to form a united front not only to assist those of their members who are targeted by the ASA but also to act as a pressure group for change at the ASA.

I hope this Article is perceived as a first step towards a strategy to regulate and bring up to date the exercise of power by the ASA, both to protect the businesses of CAM practitioners and to preserve the rights of CAM Patients to have access to a CAM practitioner and treatment of their choice.

References:

1. http://anhinternational.org/?s=ASA;

http://anhinternational.org/2014/03/12/new-film-unmasks-uks-advertising-double-standards-authority/;

http://www.positivehealth.com/article/letters-to-the-editor/letters-to-the-editor-issue-226 (letter 2);

http://www.positivehealth.com/article/complementary-medicine/is-choice-of-healthcare-a-human-right

2. http://myparliament.info/Debates/Lords/2015-06-29/10408;

3.http://www.ombudsman.org.uk/make-a-complaint/how-to-complain/government-departments-and-other-public-bodies-which-the-ombudsman-can-investigate;

4. http://www.theyworkforyou.com/lords/?id=2015-10-29a.1376.0