The Advertising Standards Authority for Ireland (ASAI) is the independent self-regulatory body set up and financed by the advertising industry and committed, in the public interest, to promoting the highest standards of marketing communications, that is, advertising, promotional marketing and direct marketing. The new Code of Standards for Advertising and Marketing Communications in Ireland is effective from 1 March 2016. Members of ASAI are required to abide by the Code and not to publish an advertisement or conduct a promotion which contravenes Code rules.
Last year in our Retail, Food and Hospitality Regulatory update we raised awareness of the new code of standards for Advertising and Marketing Communications in Ireland before it was in force.
At the ASAI Information Session held in October 2015 representatives of the ASAI were encouraging engagement with the Code before the implementation date and it is clear the ASAI is happy to continue to assist with queries from the industry now the code is in force.
The new Code is the result of a comprehensive review undertaken by the ASAI which involved a significant public consultation process with a wide range of Government departments and agencies, consultations with consumer groups and other NGOs, and consultation with the advertising industry including advertisers, agencies and the media.
Summary of changes to the rules on Food & Non-Alcoholic Beverages and Health & Beauty
There have been quite a few changes to the section relating to Food and Non-Alcoholic Beverages and the previous Code was updated to refer to and reflect relevant EU legislation. The EU Regulation on nutrition and health claims is mandatory and seeks to protect consumers from misleading or false claims. When devising marketing plans it is important to understand that only nutrition claims listed in the updated Annex of the EU Regulation No 1924/2006 may be used in marketing communications and those claims should be supported by documentary evidence substantiating that they meet the conditions of use associated with the relevant claim, as specified in the EU Register. Helpfully the Code sets out claims that are not acceptable in marketing communications for food products which is worth taking some time to consider.
The ASAI also took a step to include new rules on children and marketing campaigns shouldn’t encourage excessive consumption. Children under 16, marketing communications (except for fresh fruit and vegetables) should not encourage children to east and drink a product only to take advantage of a promotional offer. Further the Code prohibits the use of licensed characters and celebrities popular with children where marketing communications for food are “targeted through their content directly at pre school or primary school children” subject to certain exemptions.
The rules on Health and Beauty have also been updated to take into account recent updates in European legislation on Medical Products and to ensure that marketing communications for medicines, medical devices, treatments, health-related products and beauty products receive the necessary high level of scrutiny. It is important to appreciate the Code applies to marketing communications and not the actual products, which are regulated by the Health Products Regulatory Authority (HPRA), the European Medicines Agency(EMA) and the Department of Health.
It is useful to note the following from the recently updated Code:
- Claims about health and beauty should be backed by substantiation.
- Medicinal or medical claims and indications may be made for a medicinal product that is authorised by the HPRA or EMA, or for a CE- marked medical device. Note that Advertisements for medicinal products must comply with the requirements of the Medicinal Products (Control of Advertising Regulations, 2007 (S.I. No. 541/2007) and any conditions contained in the marketing authorisation, certificate, licence or traditional herbal registration for the advertised product. Marketing communications should not suggest that a medicinal product is either a food or a cosmetic and they should not offer free samples of medicinal products.
- Secondary medicinal claims made for cosmetic products should be backed by substantiation. Note that in relation to cosmetics marketing communications should not claim that product has been authorised or approved by a competent authority within the EU and you should be aware of the criteria for the justification of claims used in relation to cosmetic products.
- Advertisers offerings individual treatment, particularly those that are physically invasive, may be asked by the media and the ASAI at any time to provide full details of the treatments, together with information about those who would supervise and administer them.
With the new ASAI Code effective from 1 March 2016 it is worth taking the time to engage with the rules and ensure the necessary changes have been implemented in your organisation. The structure of the Code has been substantially changed in order to make it more user-friendly both for the members of the public and industry so it shouldn’t be a daunting exercise.
ASAI Complaints Bulletin
ASAI is the independent self-regulatory body set up and financed by the advertising industry and is committed to promoting the highest standards of marketing communications in the public interest. It is the first point of contact for consumers who may wish to make a complaint where they feel a marketing communication is misleading or offensive. The ASAI seeks to oversee a regulatory regime with a high level of responsiveness and ensure the needs of complainants are met.
Enforcement/sanctions are by way of publication of the Case Reports of the Complaints Committee, including names of advertisers, promoters and agencies involved. A marketing communication which breaks the rules must be withdrawn or amended and the media “gatekeepers” will refuse to publish a marketing communication which contravenes the Code requirements and details of the adjudications are published regularly in the media and posted on the ASAI website.
A member who does not accept an ASAI decision may be disciplined by the Board and may be subject to penalties, including fines and/or suspension of membership.
The ASAI released the latest Complaints Bulletin on 22 March 2016 which contains 15 case reports on complaints recently investigated by the ASAI. 13 advertisements were found to be in breach of the ASAI Code on grounds relating to Misleading Advertising, Principles / Non-Response, Health & Beauty claims, Slimming and Substantiation.
In our Retail, Food and Hospitality Regulatory weekly update we often include a summary of advertisements found to be in breach of the ASAI Code and complaints that were not upheld. Click the following link if you want to sign up to alerts from us or read past issues from our Food & Retail Archive »
Author: Ursula Mulvaney, Regulatory Solicitor at DWF DublinThis information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.