A focus by compliance officers on approving financial ad campaigns by reference only to the Financial Services Authority's Handbook means that other substantive controls designed to protect the consumer may be being missed, according to national commercial law firm, Beachcroft LLP. According to figures obtained by Beachcroft, the Advertising Standards Authority received 320 complaints about 220 financial promotions in 2008.

A recent adjudication into one of GoCompare.com's ad campaigns was one carried out by the Advertising Standards Authority into whether the campaign was 'legal, decent, honest and truthful', rather than by the FSA under the restricted requirements under ICOBS[1] and COBS[2]. The adjudication required the ads to be withdrawn and not shown again in the same form.

Robin Fry, partner at Beachcroft, said: "Consumers are extremely ready to complain but it's clear that, for many, their first port of call is now to the ASA rather than the FSA. In considering whether an advertisement or promotion is in fact fully-cleared, compliance needs to accommodate over 20 sets of laws ranging from the FSA's principles, to copyright, to the use of pictures of bank notes.

"The list is getting longer each year and, with the business always pushing for more imaginative advertising, a traditional approval that a promotion is simply 'fair, clear and not misleading' may not be enough. Focus on the FSA rules alone will miss other restrictions with the devastating risk that carefully-developed TV and press advertising has to be withdrawn mid-campaign. This is not just embarrassing, but also potentially cripplingly expensive.

"Using personalities, for example in the campaign by Henderson New Star, which shows pictures juxtaposing Andy Warhol with Salvador Dali, and Bob Dylan with John Lennon, is a considerable challenge due to the 'rights of publicity', which are being vigorously pushed forward by both celebrities and the estates of famous personalities. The parameters for the 'rights of publicity' are still very uncertain under UK law.

"Approval under the FSA's handbook alone is simply not enough to cover-off the clearances for this kind of advertisement. The Henderson New Star advertisements and promotions were not being challenged but were examples only of imaginative advertising that were confronting more complex legal issues outside the scope of the FSA's Handbook."

Author:
For further comment, please contact: Vanessa Montero/Julia Dudley on 020 7894 6655 or by e-mail at pressoffice@beachcroft.co.uk.

Publication Date: 04 Jun 2009