Eurocare's presentation at the meeting of DG Sanco's Alcohol and Health Working Group, when the matter of alcohol advertising self-regulation was under discussion, has upset the Director General of the UK Advertising Standards Authority (ASA), Christopher Graham. In a letter to Eurocare he has accused the organisation of seriously misrepresenting two ASA adjudications and expresses concern "that some attending the meeting have been misled"(1).

In reply Eurocare refused to accept the charge that they had misrepresented the adjudication maintaining that had they included the full adjudication it would have evoked "even greater incredulity and lack of credibility" over the ASA's decision making.

The Globe in its report of the meeting referred to the complaint against the Bordeaux Wine advertisement.(2). There was certainly no misrepresentation in stating that the ASA had not upheld the complaint.

The ASA had stated that in their opinion the advertisement did not suggest that Bordeaux wine had enhanced sexual capability. ASA's objection was that Eurocare had not included their warning to the "advertisers against implying that wine was the main reason for the success of a personal relationship"(3). Eurocare's riposte to this offence is that if the "warning" had been included it would have reinforced the opinion that the adjudication is a clear example of the ASA's lack of serious intent to follow the codes both in letter and spirit.

Eurocare had also queried ASA's decision not to uphold a complaint against an advertisement for Abbots Ale.

Since the ASA was unaware that the image shown was part of any advertising, it was implied that Eurocare had manufactured the image for its presentation. The image in fact was taken from the website of the Publican and formed part of a wider campaign by Greene King that included a TV advertisement which featured a woman tied to a bed and was carried by ITV in the autumn of 2002. When this was pointed out to Christopher Graham, he replied that the "Luxembourg audience must have been mystified as I was by the extraordinary images you presented alongside the ASA's Abbot Ale adjudication. I note from your explanation that this was a still frame from a completely different brand, in a medium the ASA did not even regulate. I wonder how many of your Luxembourg audience will have known of any of that, or how they are supposed to judge what is clearly a humorous advertisement from a single still"(4). So it was 'humorous' not 'offensive' as the complainants maintained? The comment does call into question the stated aim of all self regulation organisations that advertisements should be "decent".

In the UK, ASA is responsible for advertisements in newspapers, magazines, brochures, posters, cinema and video commercials and advertisements in non-broadcast electronic media and the Independent Television Commission and Radio Authority are responsible for television and radio commercials. The division will be problematic when the alcohol industry launches multi-media campaigns for their product. Such problems could be overcome if pertinent questions are asked of advertisers about the extent and coverage of their advertisements during the complaints procedure and appropriate action taken. The ASA does have a budget of some £4.3 million (over 6 million Euro).

ASA's report "40 Years of Effective Self Regulation" makes play of the fact that two adverts for Cossack Vodka and Smirnoff in 1970 would be questioned under today's rules(5). Questioned they might be but Alcohol Concern's complaint over the Beaujalais advertisement shows only too well how far such questioning goes. Certainly not to the level that codes are "applied both in spirit and to the letter"(6).

One may wonder whether we inhabit two different worlds when ASA claims that after the strengthening of the code for alcoholic drinks in 1975 "an immediate change was apparent. Suddenly ads that implied sexual success from drinking alcohol were outlawed".

Also ASA's claim that over the past 40 years they have "build up a reputation for considered judgements"(7) - maybe true of other products but not with regard to alcohol. Nor would public health bodies concerned about alcohol advertisements agree with ASA's claim that "the partnership between the Code Writing Committee of Advertising Practice and the Complaints Adjudicating Panel is the great strength of today's self regulatory system"(8).

The Advertising Association set up the Advertising Standards Authority in 1962 and in order to ensure its financial base established a few years later the Advertising Standards Board of Finance, the body which collects income from a small levy on display advertising and direct mail expenditure to meet ASA's costs. This was to ensure the independence of the ASA from the advertising industry. However, the Code of Advertising Practice is written by the Committee of Advertising Practice comprising 19 trade bodies that represent all elements of the advertising business. Among its aims are that advertising should be "legal, decent, honest and truthful". ASA's Council, which consists of 12 people, adjudicate on complaints.

In 1991 the ASA helped to found the European Advertising Standards Alliance (EASA) which now has 28 self-regulating organisations in membership from 22 European countries and 4 non-European - Canada, New Zealand, South Africa and USA. In addition EASA includes industry organisations supportive of advertising regulation.

Recently the EASA gave a presentation of its work and philosophy to Commissioner Byrne of DG Sanco(9). The presentation clearly shows that it is the industry which determines self regulation and its codes. EASA is opposed to mandatory involvement of consumer organisations and government selection of stakeholders. It supports consultation with consumer groups and involvement of 'real' consumers in monitoring of codes. The description "real" arouses curiosity – EASA does not seem to define what it purports to be "real".

In the presentation much emphasis is placed on the fact that compared with overall complaints about advertising material, the number of alcohol complaints is very low.

No doubt EASA wishes to convey that self-regulation is working and there is little concern about alcohol advertising. However a low level of complaints does not imply general satisfaction with alcohol advertising, its volume and targeting. The following factors must play some part in the level of complaints:

• Adjudication decisions do not encourage the feeling that complaints are taken seriously. Indeed some replies verge on the flippant.

• The advertising industry sets the rules and adjudicating panels do not include public health personnel.

• Lack of awareness of the complaint system.

• A belief that statutory regulation and monitoring is required, anything else is a waste of time.

It was the fact that self-regulation was not respected that caused the French Government to introduce statutory regulation.

What needs to be noted is the double standard of the alcohol and advertising industries when it comes to the determination of alcohol policy. Both industries claim to be stakeholders in the alcohol policy process and insist on their right to a seat at the table. However this is denied to the public health field when it comes to the advertising regulatory systems. There is no level playing field. Public Health is plainly seen as an adversary and an obstacle to the industry maintaining its control on the content of advertising.

The Alcohol and Health Working Party had six presentations from the alcohol industry – all of which stressed the success of self-regulation. Eurocare presented the case for statutory regulation. Both sides expressed doubts on the other's objectivity. It is to be noted that the official minute of the meeting records:

"Representatives of the Member States and NGOs expressed their scepticism about industry's practice and sincerity concerning the protection of young people."(10)

The Advertising Association continues to attack the French Loi Evin as an infringement of their commercial freedom and rights. In a recent report they take comfort from the fact that after longstanding pressure from them the European Court of Justice will take up the issue of the Loi Evin. The fact that in the same report they speak of the UK's Whitehall as "reassuringly competent" and Brussels "worryingly politicised"(11) shows that they are only happy when they set and control the agenda. They go on to say, "Advertising, consumerists argue, is a direct cause of obesity, misuse of alcohol, smoking.

The consumerist answer? To regulate, restrict and prohibit commercial communications. This view holds more sway in the corridors of Brussels than in the UK". There is no doubt that this concern lies behind EASA's European Road Show on self-regulation with staged events in Spain, France, Austria, Germany and Hungary.

Whatever might be claimed for self-regulation in general, there is no evidence that, with regard to alcohol, it has had the effect of making the drinks industry or advertising agencies more socially responsible in their marketing. There is sufficient evidence to show that alcohol advertising practice is out of control and that this had coincided with a growing youth alcohol problem. Exploitation of the youth market by the alcohol industry demands concerted government action.

Correspondence between Christopher Graham, Director General of the Advertising Standards Authority and Derek Rutherford, Secretary of Eurocare

Graham to Rutherford 17th January 2003
Colleagues at your Brussels office kindly supplied us with the presentation that Peter Anderson gave to the Alcohol and Health Working Group of the European Commission on 26 November 2002. Having been alerted to the possible misrepresentation of some adjudications of the Advertising Standards Authority in the UK, I was anxious to see what had actually been said.

I was concerned to find that both ASA examples contained in the presentation seriously misrepresent the Authority's adjudications. Accordingly, 1 am concerned that some of those attending the meeting may have been misled.

I set out in some detail the ASA's concerns about Eurocare's treatment of these examples in the attached appendix. I also include a further appendix setting out the ASA's approach to alcohol advertising.

I am sorry we were not alerted to Eurocare's concerns prior to the presentation. Since you have offices in the UK I should welcome such a meeting in the future.

In view of the possibility that a misleading impression may have been gained by those attending the meeting on 26 November, I am copying this to John Ryan and Gottfried Thesen of DG Sanco, John Bell of Commissioner Byrne's cabinet, Heimut Wagner of The Amsterdam Group and Oliver Gray of the European Advertising Standards Alliance.

Appendix 1
The ASA was originally sent an earlier version of the Eurocare presentation that contains substantially different examples to the version sent from Brussels. In the latest material there were two problematic non-broadcast advertisements of UK origin, one for Bordeaux Wine and one for Abbot Ale. We assume this version to be the one presented to the Commission in November. The earlier material we received referred specifically to other UK examples - a Halewood product called Hardcore and two other drinks called Archers and Red Square.

Bordeaux Wine
In the case of Bordeaux Wine, the advertisers' defence was presented by Eurocare as the Authority's adjudication. Even the advertisers' defence was edited and quoted selectively.

It is standard ASA practice to state the complaint, set out the advertisers' response and give the Authority's adjudication. To quote selectively significantly misrepresents the situation.

The full adjudication, which I attach, makes clear that the Authority accepted that the advertisement did not suggest that Bordeaux wine enhanced sexual capability. However, the Authority warned the advertisers against implying that wine was main the reason for the success of a personal relationship.

The decision was informed by research supplied by the advertisers showing that subjects had not inferred a message of sexual enhancement - a fact that was reported in the full adjudication but is absent from the Eurocare presentation.

Abbot Ale
In the case of Abbot Ale, the advertisement was presented together with an image of apparent sexual bondage that is not part of the advertisement (or any advertisement, as far as the ASA is aware). This image is unexplained and to any participants at the November meeting it must have appeared that the two were in some way connected or even both part of the advertisement complained about. The image in the ad itself has nothing to do with perversion and it is irresponsible to suggest that it does.

The Eurocare presentation also failed to mention the grounds for complaint. There were two elements to this. The ASA received five complaints that the ad was offensive; but the Authority itself challenged whether the advertisement implied a link between alcohol consumption and sexual success.

On the first point, the Authority considered that the advertisement was unlikely to cause serious or widespread offence given the target audience of the publications it appeared in. The Times said their audience was biased towards young, upmarket male readers and, although ambiguous, the advertisement was neither distasteful nor indecent. They noted they had not received any complaints about the advertisement. The Telegraph believed the advertisement was saucy but was unlikely to cause serious or widespread offence, particularly to those in the target audience.

On the second point, the Authority also concluded, following investigation, that the advertisement, despite the image suggesting sexual passion, did not imply a link between alcohol consumption and sexual success. The end line 'brewed longer for a distinctive, full flavour' indicates the unique selling point that Abbott Ale is fermented for seven days. Hence the opening line, 'Some things get better given longer'. The claim in the ad is linked to the brewing process, not the effect of alcohol consumption.

I enclose copies of the full adjudications in each case. You may not agree with the Authority's decisions, but there is no excuse for misrepresentation since the ASA's adjudications are all published on our website, http://www.asa.org.uk.

It is also not helpful to omit to explain the context in which the Authority operates. The relevant clause of the British Codes of Advertising and Sales Promotion against which both ads should be judged is:

• 46.7 Advertisements should not suggest that any alcoholic drink can enhance mental, physical or sexual capabilities, popularity, attractiveness, masculinity, femininity or sporting achievements.

The Authority was ruling on complaints it had received. The Authority can and does add its own challenges where the Codes appear to have been breached and, in the case of the Abbot Ale, this is precisely what we did.

Appendix 2
By picking just two of the alcohol ads on which the ASA has ruled in the past three years, Eurocare presents a highly misleading overall picture.

It should be noted that only a very small proportion of complaints received by the ASA involve alcohol advertisements (about 1.2% in 2001).

The table below gives details of the level of complaints in 2000 and 2001.

	2000	2001
Total number of complaints received by the ASA	12261	12600
Total number of alcohol complaints	149	154
Total number of ads complained about	8457	9945
Total number of Alcohol ads complained about	61	55
Total number of complaints upheld	2439	1670
Total number of complaints about alcohol upheld	10	55
Total number of alcohol ads with complaints upheld	4	6

In addition to complaints handling, the ASA/CAP system operates 'upstream' in an effort to minimise the number of advertisements that breach the Codes. The Committee of Advertising Practice (CAP) Copy Advice service, which offers free pre-publication advice to advertisers, dealt with 87 enquiries about alcohol advertising in 2000, increasing to 100 in 2001.

In 1996 the CAP Compliance team undertook a survey of alcohol advertisements. Ninety-eight per cent of alcohol advertisements were found to comply with the Codes. A copy of the research is available on the ASA web site (http://www.asa.org.uk/research/documents/upi_3.pdf).

Compliance rates more generally are encouraging. In the most recent survey of poster advertising, covering all product sectors, 99% of ads were found to comply with the Codes. The full research can be found oniine at http://www.asa.org.uk/research/documents/upi_4.pdf. Similarly high compliance rates have been found for press advertisements (96%) and direct mail (91 %).

It should be noted that the majority of advertisers who breach the Codes either amend or withdraw their advertisements in accordance with an ASA ruling without further prompting. However, a number of sanctions exist to ensure compliance.

Chief among these is the refusal of media space to advertisers who breach the Codes. CAP members include all of the main media trade bodies (for outdoor, print, cinema and direct marketing), and an Ad Alert can be issued warning media owners against taking an advertisement found in breach of the Codes.

Trading privileges may also be withdrawn. This is particularly effective in the case of direct mail, which relies on Mailsort contracts with Royal Mail in order to be cost effective. Royal Mail is a member of CAP and may be asked to withdraw a Mailsort contract from a company found to breach the Codes.

Since 1999 CAP has been able to require advertisers whose posters have been judged by the ASA to breach the social responsibility or taste and decency clauses of the Codes to have subsequent poster advertising prevetted by CAP for a two-year period. Three alcohol advertisers have been subject to pre-vetting:

Whitbread Beer (September 1999-2001), UDV (January 2000-2002) and Halewood (July 2000-2002).

In addition to the above, all ASA adjudications are published on our website (www.asa.org.uk). This can and does generate adverse publicity for advertisers who have breached the Codes. The latest adjudications are published in this way each Wednesday morning.

All thi is achieved at no cost to the taxpayer. The system is funded by a levy on display advertising, collected by the Advertising Standards Board of Finance (Asbof). The separation of funding collection from complaints handling helps to ensure that the independent judgement of the ASA is not compromised.

Our Council devoted time at its December meeting to review our record in this area, and to decide whether we were being too liberal in our interpretation of the Codes. Council concluded that the ASA was getting things right most of the time, although the Executive was asked to add more Authority challenges to complaints about alcohol advertisements that might otherwise be judged simply on taste grounds.

Bordeaux Wine Bureau
Agency: MPGM
Magazine
Industry complaint from: London
Complaint:

Alcohol Concern objected to a magazine advertisement for Bordeaux wines. The advertisement showed a woman, wearing red underwear, leaning over a man, who was naked from the waist up, as if to kiss him. The words "red", "velvet", "candlelight", "blushes", "deep", "lingering", "lip-staining" and "kisses" were superimposed on a glass of red wine and the advertisement stated "Let the Mood Take You to Bordeaux". The complainants objected that the advertisement linked wine drinking with sexual activity and breached the Codes. (Ed 9: 46.7)

Adjudication: Complaint not upheld
The advertisers explained that the advertisement was one of the first two in a campaign that was intended to feature several different existing personal relationships, not sexual conquests. They believed the advertisement depicted a couple, in an established relationship, sharing a moment of intimacy in a private setting. They refuted the suggestion that the advertisement depicted a one-off sexual encounter or enhanced sexual prowess and explained they had deliberately sought to avoid that impression by photographing the couple head-to-head, not body-to-body, and clothing the models in underwear; the man's shorts had been cropped out of the photograph in the final version of the advertisement. The advertisers claimed that the subjects of qualitative research had not inferred a message of sexual enhancement. The Authority accepted that the advertisement did not suggest that Bordeaux wine enhanced sexual capability but warned the advertisers against implying that wine was the main reason for the success of a personal relationship.

MAY 2000 - Number 108
Greene King Brewing and Brands
Agency: McCann Erickson
Publish Date: 10 July 2002 Media: National press
Sector: Alcohol
Public complaints from: Suffolk (.x3), Wiltshire and Lancashire
Complaint :

Objection to an advertisement that appeared in the Telegraph Magazine and the Times Magazine, headlined "Some things get better given longer." It pictured a woman in bed with one hand gripping the sheet and stated "Brewed longer for a distinctive flavour."

1. The complainants objected that the advertisement was offensive.

2. The Authority challenged whether the advertisement implied a link between alcohol and sexual success.
Codes Section: (Ed 10: 5.1; 46.7)

Adjudication:
1. Complaint not upheld
The advertisers believed the advertisement was stylish, tasteful and respectful. They said the woman was covered with a sheet and was not being exploited in either a rational or emotional sense and there was no overt or explicit suggestion of sexual activity. The advertisers said the advertisements mainly appeared in broadsheet newspapers and men's magazines and they believed it would not cause offence. The Times said their audience was biased towards young, upmarket male readers and, although ambiguous, the advertisement was neither distasteful nor indecent. They noted they had not received any complaints about the advertisement. The Telegraph believed the advertisement was saucy but was unlikely to cause serious or widespread offence, particularly to those in the target audience. The Authority considered that the advertisement was unlikely to cause serious or widespread offence.

2. Not upheld
The advertisers said their intention was not to infer that drinking Abbot Ale would improve readers' sex life but to advertise the product's unique selling point that Abbot Ale is fermented for seven days; they believed the end line 'brewed longer for a distinctive, full flavour encapsulated that proposition. They said the campaign merely drew analogies with things that benefited by being given more time. The Authority noted that, before publication, the advertisers had sought advice from the Committee of Advertising Practice Copy Advice team on a similar advertisement and that they had been advised that the approach might breach the Codes. The Authority considered, however, that, although by inference, the advertisement drew parallels with sex it did not imply a link between alcohol and sexual success.

Rutherford to Graham 20th January 2003
Thank you for you letter of the 13th January. I have had a meeting with my colleagues who were responsible for the presentation and discussed your letter of complaint. We certainly do not accept your view that Eurocare's presentation at the Alcohol and Health Working Group on 26t' November 2002 "seriously misrepresented" your Authority's adjudication nor was there even any "misrepresentation". It is a matter of fact that your adjudication rejected the complaints.

We were not unfair in our presentation. The meeting, prior to our presentation, included six presentations from the drinks industry. If we had had the time to give a lengthy presentation that included the full text of your adjudication, it would have shown even greater incredulity over your decision making and consequent lack of credibility.

Your reply to us on Bordeaux Wine is a clear example of your lack of serious intent to follow the codes both in letter and spirit.

With regard to Abbot Ale, you besmirch our integrity by implying that we manufactured the images for our presentation. In fact they were taken from the website of "The Publican" and both images form part of a wider campaign for Green King IPA including a TV advertisement which features a woman tied to a bed. Please note that ITV carried this advertisement in Autumn 2002.

We cannot be held to task or charged with misrepresentation when our complaint is that your procedures to police and rigorously enforce lacks real concern and commitment to the observing of your own codes. No matter what the nature of the complaint might be, it is your responsibility to see that the advertisement complies with your code. Lack of a statutory code and enforcement by independent panels leads inevitably to weak and ineffective control by your industry. This is the point we were making. The present self regulatory codes smack of mere posturing to give Governments the impression that you have taken on board the concerns of those who work in public health and wish to protect the well being of our young.

Our position is quite clear. We consider that the self-regulatory codes devised by your industry do not work and are circumvented.

We make no apology and your reaction to our presentation adds to our overall concern.

Since you have copied your correspondence with us to the Commission, we consider the issue warrants a full and frank public debate. As a contribution to this I shall be pleased to publish your correspondence and our reply in the next issue of The Globe.

Graham to Rutherford 27 January 2003
Thank you for your letter of 20 January.

I note that rather than meet the ASA, either prior to your presentation to the Commission or now, you prefer to publicise our correspondence. Very well. I hope you will include in full my letter of 13 January, including both appendices and both adjudications, and also this letter - so that your readers may decide for themselves whether or not the ASA acts responsibly.

Your Luxembourg audience must have been as mystified as I was by the extraordinary image you presented alongside the ASA's Abbot Ale adjudication. I note from your explanation that this was a still frame from a completely different advertisement, for a different brand, in a medium the ASA does not even regulate. I wonder how many of your Luxembourg audience will have known any of that, or how they were supposed to judge what is clearly a humourous ad from a single still.

I summarised in Appendix 2 of my earlier letter the steps the ASA is taking to enforce the Codes in respect of non-broadcast advertising in the UK. If you feel that we are missing challenges that ought to be made, may I invite Eurocare to use the ASA complaints system? The service is free to the complainant and easily accessed via our website www.asa.org.uk. The site also contains much useful background information, about both the ASA and the rules on alcohol advertising - and is I would suggest, a better source of information about our adjudications than www.thepublican.com on which you apparently rely.

Rutherford to Graham 12th February 2003
Thank you for your letter of the 27th January. In response to your comment that "rather than meet the ASA you prefer to publicise our correspondence", may I point out that my attitude to meet with you to discuss your association's supervision, interpretation and adjudication of self-regulatory codes arises from the outcome of former discussions.

If you look up the report of the proceedings of your Association's seminar at Peterhouse, Cambridge in September 1981*, I raised the issue of two advertisements which I had, on behalf of the National Council on Alcoholism, complained of. One was to the ASA and the other to the IBA. I pointed out that whilst I welcomed the then "voluntary codes of practice" I questioned whether the spirit of such codes was being implemented and that certain adjudications questioned their credibility (pages 38-42).

At your Association's subsequent seminar in July 1991*, I again demonstrated my suspicions of self regulation and preferred a statutory code (page 28). During the same seminar Dr Craplet, Chairman of Eurocare, commented that in France due to the fact that self-regulatory codes were not respected, statutory codes had had to be introduced. After ten years there had been no observable adherence to the letter and spirit of your codes.

Again, more than ten years later, Alcohol Concern's recent experience over the Bordeaux advertisement revealed that the supervision of the code was, to say the least, lax and gave the appearance of mere gesturing.

Over the years self-regulation has not made either advertising agencies or the drinks industry more socially responsible in their product marketing. Indeed, alcohol advertising practice is out of control coinciding with a growing youth alcohol problem.

It is no doubt for these reasons that the WHO, EU Council of Health Ministers and the Commission have alerted the industry to their concern.

Although Commissioner Byrne has stated that the ball is in the drink industry's court (WHO Ministerial Conference, Stockholm 2001), we consider it our duty to continue to point out the failure of self- regulation and the need for a statutory code. Experience over twenty years reveals the industry's failure to respond effectively. Since we feel our views and concerns have not been taken seriously, it would appear to be a waste of effort and time to have a one to one discussion with you. We need governmental action.

I consider that my letter brings our correspondence to a close. Publication of the issue in the Globe is in the public interest.

* These were, in fact, Advertising Association seminars

References:
1 Letter from Christopher Graham to Derek Rutherford, 13th January, 2003.

2 The Globe, Issue 4, 2002., Self-Regulation, For and Against.

3 Bordeaux Wine Bureau, Adjudication ASA, May, 2000.

4 Letter from Christopher Graham to Derek Rutherford, 27th January, 2003.

5 40 Years of Effective Self-Regulation, Advertising Standards Authority, Annual Report, 2001.

6 Self-Regulation – A Statement of Common Principles and Operating Standards of Best Practice, EASA, 13th June, 2002.

7 op. cit.

8 op. cit.

9 Self-Regulation in Action, Presentation by Dominic Lyle to Commissioner Byrne, 16th October, 2002, EASA.

10 Draft minutes of the meeting of the EU Public Health Directorate Working Group on Alcohol and Health, 25th-26th November, 2002, Luxembourg.

11 Advertising Association Annual Report, 2001.