It's a topic that many companies will be aware of.  The mantra of 'clear, fair and not misleading' is one that anyone who has worked in advertising will be familiar with.

Yet an interesting nuance in advertising law has come out of the woodwork as a result of the recent referendum.

Much has been made of the way the various strands of both campaigns were run and the claims and counter claims they each made.  So much so, that the Advertising Standards Authority has received a large number of complaints in relation to numerous adverts.

But it's taken no action.  Why?

Well whilst companies regularly find adverts ruled against by the ASA, political parties are safe in the knowledge that political adverts are exempt from regulation.  The CAP Code rules state that:

"Claims in marketing communications, whenever published or distributed, whose principal function is to influence voters in a local, regional, national or international election or referendum are exempt from the Code"

Meanwhile, TV advertising is banned and limited to party political broadcasts.  We might not agree with this (as the tweets alongside this article show), but in some ways the fact that the rules, as they stand, don't apply does make sense.  Bear with me and I'll try to show why:

  • the time from the advert, to complaint, to review and decision would often mean that the campaign had run its course by the time the ASA ruled.   
  • the ASA's most common weapon is to rule an advert to be in breach of marketing rules and that it cannot be used again in its current form.
  • in the realm of political advertising, it's unlikely that the same claim would be used again in any event the next time a campaign was run.  
  • the consequence of the rules, as they stand, may therefore be unlikely to effectively change or influence behaviour in this space.

You could say that's simplistic, and to an extent it is. There are other recourses for the ASA (to Trading Standards, industry bodies and impacts of paid for advertising) but these are usually reserved for repeat offenders.

So what next?

Well there's clearly angst amongst people who feel that some of the advertising in both of the recent campaigns has been misleading.  Separate rules could be introduced for political advertising and indeed there are movements to lobby for such rules to be introduced (they were recommended in 1999 but not acted upon in 2003).  The Electoral Commission has suggested so far that there are no plans to introduce any such rules....at the moment.

So, whilst politicians can avoid the clutches of the ASA for now, it doesn't mean that they'll always avoid the court of public opinion.