Misleading and deceptive advertising
Our responsibility
Under sections 2.1 of the AANA Food and Beverages Advertising and Marketing Code, Section 2.2 of the AANA Code for Advertising and Marketing to Children, and Section 1 (i) of the AANA Environmental Claims in Advertising and Marketing Code, the Advertising Standards Board must consider whether advertisements:
- are truthful and honest,
- are or are designed to be misleading or deceptive, and
- mislead or deceive children
The Board’s role and the test it applies
The role of the Complaints Board is different from the role of the court, the ACCC, or the Claims Board (which adjudicates truth in advertising disputes under the AANA Code of Ethics between competitors).
The Board has a special role given the broad principles in the various Codes and Initiatives and its role as set out in the complaints provisions of the Codes and Initiatives and other sources such as the Food and Beverage Practice Note. The Board reflects community standards and expectations and these necessarily change over time.
The Board does not determine as a legal matter whether an advertisement is misleading nor does it reach a legal opinion. The Board’s task is to deal with complaints, not including truth in advertising disputes between competitors. In such dealings the task is to reflect the community's attitude - to assess whether the advertisement meets current community expectations for truthfulness given what the advertisement conveys to ordinary consumers and in light of the relevant circumstances and given the grounds of the complaint.
By upholding or rejecting a complaint, the Board determines whether the community considers an advertisement acceptable or not. In this way, it provides guidance to advertisers and assists in maintenance of confidence in advertising.
The Board is well placed to determine such complaints given the wide experience and understanding of its members in relation to the community
Bureau procedure
Complainants and advertisers each put their own submissions about what the community believes and understands, but it is for the Board to assess what the community would take from an advertisement and whether reasonable members of the community would consider the advertisement misleading.
Obtaining expert advice
If a complaint is made that an advertisement is misleading or deceptive it is the responsibility of the advertiser to provide the Bureau with sufficient information to enable the Board to assess the accuracy of claims or statements made in an advertisement. In relation to food products, the information requested will usually be substantiation of the composition or nutritional profile of the food, but this will depend on the claims and statements made in the advertisement.
On occasions the information provided by the advertiser will be highly technical and it will be beneficial for the Board or Bureau to obtain independent expert advice on the information so that it is able to be presented to the Board in ‘lay’ terms. In such circumstances the Bureau will engage the assistance of an independent expert.
The Bureau seeks expert advice on food science matters. Advisors are engaged should issues raised require expertise.
Process for complainants
Generally, complainants are not required to provide any evidence in their complaints about advertisements. However, in relation to complaints concerning the truth and accuracy of claims about an advertisement the ASB will now require people who make complaints of this sort to provide information about:
- which specific statements in the advertisement they consider are untrue, and
- what evidence there is to suggest that this information is incorrect.
ASB hopes that this process will provide a more robust procedure for the adjudication of complaints about this issue and will deter frivolous or vexatious complaints.
Advertiser’s responsibilities
Following receipt of a valid complaint that an advertisement is misleading or deceptive, ASB will contact the advertiser and ask the advertiser to provide substantiation for any claims (references and argument rather than source documents) in the advertisement. Advertisers must address all claims made in the advertisement, not just those the subject of complaint. Such information should be provided within the usual time for advertiser response (7 days) as claims should not be made without substantiation readily available.
Following receipt of the advertiser response, the ASB will request the assistance of the independent advisor should the CEO or Board consider that independent scientific advice would be of assistance in helping the Board to:
- understand the information provided in order to assess whether it is ‘truthful’, and
- understand the information in order to consider whether the message is likely to be considered misleading or deceptive.
The independent advisor will be asked to provide advice on the advertisement, the complaint and the advertiser substantiation in particular:
- whether the substantiation for claims made is robust,
- if not robust, what areas of the claim are not scientifically supported, and
- whether there is scientific consensus on the issue or debate.
It is not the advisor’s role to comment on the message that a consumer might take from the advertisement or to provide advice on whether the advertisement is misleading or deceptive.
The independent advisor will provide advice as quickly as practicable, but a strict timeframe will not always be possible as the advisor has other employment.
Following receipt of the independent advice, the ASB will furnish a copy of the request for advice and the advice to the advertiser and provide a reasonable time for response. What is reasonable will depend on the complexity of the matter, bearing in mind the importance of speedy resolution of complaints.
The Board will consider:
- the advertisement,
- all complaints,
- the advertiser response,
- the independent advice where obtained,
- the advertiser response to the independent advice, and
- any other information provided by the Bureau.
In accordance with usual practice the Board will consider the advertisement in its entirety and is not restricted to the issues raised by the complainant.
Any confidential commercial information identified by the advertiser in its substantiation will not be included in the case report. The conclusions of the independent advisor will be published in the case report but not necessarily the entire analysis.
Usual procedures will be followed after the Board’s determination on the complaint.