How to make a complaint
1. The ASAI accepts complaints from any person or body who considers that a marketing communication may be in breach of the Code. The ASAI may also investigate issues identified through its monitoring programme. A complaint should normally be in writing and should state briefly the grounds of the complaint. To assist in both the processing and speedy resolution of complaints it is essential to:
- Write to ASAI (or use the on-line complaints form) with full name and postal address, stating briefly the grounds for the complaint;
- Include a copy of the marketing communication if possible, or the particulars of the marketing communication, including dates and the media involved;
- Give the name of the product and the promoter and copies of any labels, leaflets or entry forms involved in the case of a sales promotion or direct mail activity.
2. Complaints are investigated free of charge. To the extent permitted by law, the identity of an individual consumer complainant remains confidential unless a commercial or other interest is involved in making a complaint. Complainants may be asked to confirm that they have no such interest.
3. The ASAI is not an arbitration service for disputes between commercially interested parties. These disputes are best resolved by direct discussions between the parties or through their appropriate trade associations. There may be circumstances where it will not be possible for the Authority to reach a conclusion, for example, where the Authority cannot complete a report or adjudication without commenting negatively on a third party who is not the subject of the complaint. The option of applying to the Courts for an injunction under the European Communities (Misleading Advertising) Regulations, 1988, is always available.
4. An intra-industry complaint may be investigated by the ASAI where the interests of consumers are involved. In such cases, complainants may be required to substantiate their complaints. The identity of the complainants is revealed to the advertiser or promoter and both parties are named in the published Case Report. The Authority has the option of issuing a statement rather than a formal decision where this is appropriate.
5. The complaint is evaluated initially by the ASAI Secretariat to determine whether it comes within the terms of reference of the ASAI and whether there is a prima facie case for investigation.
6. Where a complaint falls outside the terms of reference of the ASAI, e.g. because it does not relate to the content of a marketing communication, or where there is no apparent case for investigation, the complaint will not be pursued and the reason will be explained to the complainant.Where possible, the ASAI will help the complainant to contact the most appropriate source of assistance.
7. Complaints will normally not be pursued if the matter is already the subject of simultaneous legal action or where legal action with a view to litigation, or litigation (or some other alternative dispute resolution process) has been initiated. Similarly, the ASAI does not wish to duplicate the work of other regulatory bodies.Where it would be more appropriate for a complaint to be investigated or dealt with by other bodies, the ASAI will endeavour to provide relevant information or will endeavour to direct the complainant to the most appropriate body.
8. Where the Secretariat determines that there is a prima facie case for investigation, an investigation is commenced and the advertiser or promoter (or the advertising/promotional marketing agency involved) is informed of the complaint and invited to comment on it in relation to the Code. They are required to respond, and to submit substantiation where necessary, within such period as the Secretariat may request, normally within ten days. The timeframe set by the Secretariat will be strictly enforced.
9. On receiving the response, the Secretariat, where it considers that circumstances warrant it, prepares a summary of the case. This will include any facts or advice that the Secretariat has gathered. It will include the Secretariat’s Recommendation to the Complaints Committee in relation to what the Committee’s decision might be on the marketing communication’s compliance with the Code and whether the complaint should be upheld. It may also recommend other courses of action to the Committee.
10. A marketing communication may be found to be in breach of the Code if the advertiser/promoter fails to respond or unreasonably delays responding to the ASAI. Likewise, advertisers/promoters may be found to have contravened the Code if they do not respond, or unreasonably delay their response, to the ASAI.
11. The complainant and the advertiser/promoter or agency are provided with a copy of the Secretariat’s Recommendation and are given an opportunity to express any further views on the matter at that stage within a period which the Secretariat may specify, before referral to the Complaints Committee.
12. The case, including any views received on the Recommendation, is then submitted by the Secretariat to the independent Complaints Committee, which decides whether or not the Code rules have been contravened.
13. Details of the case, including the name of the advertiser/promoter and agency and the Complaints Committee’s conclusion, but not the name of a consumer complainant, are set out in a Case Report which normally is released to media for publication and posted on the ASAI website, at the discretion of the Committee.
14. A marketing communication which has contravened the rules of the Code is required to be amended or withdrawn. In the case of a sales promotion, the promoter may be requested to make the necessary changes to the way the promotion is communicated or conducted and, where appropriate, may also be asked to recompense any consumers who have been adversely affected.
15. Notwithstanding the above, the investigation procedure and the consideration by the Complaints Committee may be accelerated or otherwise varied where circumstances warrant. If a case is considered by the Secretariat, in its absolute discretion, to be particularly grave, the Secretariat may request interim action by the advertiser / promoter or agency, including the immediate amendment or withdrawal of a marketing communication or promotion pending completion of the investigation and adjudication by the Complaints Committee.
16. Complaints about marketing communications that appeared in foreign media do not come within the remit of the Code. The ASAI is, however, a member of the European Advertising Standards Alliance (EASA) (see Section 6, for information about EASA). EASA supervises the operation of the Cross-Border Complaints System. Under this system, a complaint received by the ASAI or other national advertising selfregulatory body about a marketing communication that was published/broadcast in another member country is referred to the appropriate national self-regulatory body for consideration under their Code. This ensures that a consumer can have redress against misleading or offensive advertising originating anywhere in Europe.
17. In exceptional circumstances, the Complaints Committee can be asked to reconsider its adjudication. Requests for review must be submitted within 21 days of issue of the adjudication on the form provided for that purpose. Full details of the review system are included in Appendix I and the review application form is available from the Authority. The decision of the Complaints Committee stands while the matter is being reviewed.
18. Publication of the Case Reports of the Complaints Committee, including names of advertisers, promoters and agencies involved, is an important element of the self-regulatory system. A marketing communication which breaks the rules must be withdrawn or amended and the media will refuse to publish a marketing communication which fails to conform to Code requirements.
19. A Member who does not accept ASAI decisions may be disciplined by the Board and may be subject to penalties, including fines and/or suspension of membership.
20. The ASAI may require advertisers whose marketing communications persistently and/or gravely breach the Code to have some or all of their proposed marketing communications subjected to Copy Advice until the ASAI is satisfied that future communications are likely to comply with the Code.
21. In particular, if an advertiser seems to have deliberately flouted the Code with the intention of generating complaints, PR and subsequent notoriety, the ASAI can request the advertiser and the media to submit for a stated period any of the advertiser’s proposed marketing communications to check their compliance with the Code.