Wednesday, November 08, 2006

One cheer for the Advertising Standards Authority

Many thanks to those of you who have already signed our petition of solidarity with the Philippines as campaigners there work to defend their new baby food marketing law from attack by the industry. We passed the 100 on-line signature mark in a matter of hours of going live with the campaign. You can also download a paper copy of the petition to pass around friends or pass on the URL http://www.babymilkaction.org/cem/cemnov06.html

There is a whirlwind of activity in the Philippines at the moment - my colleague has just presented evidence at a meeting in Congress. I'll say more about that soon. Of course, while all this is going on, we still have normal activities, requests for information etc.

And news coming in. Today the UK Advertising Standards Authority (ASA) published a ruling on a formula advertisement from NUMICO for its Cow & Gate brand of formula.

The ASA is a self-regulatory body, funded by the advertising industry. It is endorsed by the government and promoted as an alternative to independent regulation. It has just been announced that a former government Minister, Chris Smith, now Lord Smith, is going to take over the role of Chairman next year. Lord Smith said:

"The ASA is an example of self-regulation working at its best. It has a distinguished record of keeping the work of advertisers and advertising - one of our most important creative industries - on the right road. I look forward to taking forward its important work."

Hmmm. Well, we see a rather mixed record and have questioned in the past the self-regulatory approach.

An advantage is you can file a complaint without necessarily having the expense of lawyers. If the ASA decides there is a case to answer, they conduct their own investigation. We have filed many cases. Our complaint against a Nestlé anti-boycott advertisement in which the company claimed to market infant formula 'ethically and responsibly' was one of the longest ever investigations conducted by the ASA. It took 2 years for them to come up with a ruling as Nestlé repeatedly challenged it - and did use lawyers to try to win its case - exhausting every part of the ASA's appeal procedure. The ruling published in 1999 upheld all of our complaints. Nestlé has effectively 'been branded a liar' over its formula marketing claims the media reported. Earlier we had been challenged over a boycott advertisement and all complaints were rejected.

So thank you ASA.

In a ruling today the ASA has partially upheld a complaint against a formula magazine advertisement from Cow & Gate that said: "Not sure how to help build your baby's natural defences if you're not breastfeeding? That's why Cow & Gate are here to help ... Important notice: Breastfeeding is best for your baby. Cow & Gate follow-on milks should be used as part of a mixed diet and not as a breast milk substitute before 6 months ... Our range of follow-on milks all contain a bunch of goodies called prebiotics to help build natural defences. Prebiotics are the special ingredients naturally found in breast milk, which of course is the best form of nutrition you can give your baby. But if you're not breastfeeding, our follow-on milks can still help your baby build strong defences..."

The ASA did not agree that this is idealizing formula by suggesting similarities with breastmilk. And although it found one company study presented by NUMICO of value it upheld the complaint that there was insufficient evidence for many of the health claims made about the health benefits of prebiotics. It concluded:

"Because they had not sent evidence to show a direct link between an infant taking their formula and it helping to build defences against a number of everyday illnesses or conditions to which they were susceptible, we considered that Cow & Gate had not substantiated the claim. We told Cow & Gate to amend the ad to make clear that the product could help build "some" and not "all" natural defences."

So one cheer for the ASA. But not three. And certainly other countries should not look to this as "self-regulation working at its best" as Lord Smith suggests.

Consider this. Such advertisements are prohibited by the International Code of Marketing of Breastmilk Substitutes. Companies should not be promoting these products to the public at all. It is for health workers to advise parents.

We have argued this point with the ASA many times. It says it has to be bound by the UK Infant Formula and Follow-on Formula Regulations 1995, which prohibit the advertising of infant formula, but not follow-on formula.

NUMICO placed an advertisement in The Independent newspaper last year. It was headlined: "Why breast milk is the best start for you baby. Why our milk is the very best alternative to breast milk." The advertisement was headed 'Aptamil', the name of a NUMICO infant formula. Following protests that the advertising was illegal, it was changed. Future advertisements were headed 'Aptamil Forward', the name of the follow-on milk. Nothing else was changed, but now on the ASA's interpretation of the law it was not prohibited.

We argue that even with the addition of the word 'Forward' such advertisements are de facto infant formula advertisements and so illegal under current legislation. They promote the same brand name. They direct readers to websites for further information that promote infant formula. The ASA refuses to consider website content even if it is an intrinsic part of an advertising campaign. It claims sites are 'editorial' and people choose to visit.

There is a legal precedent that an advertisement does not have to specifically refer to the infant formula by name to be illegally advertising infant formula (Birmingham Trading Standards v. Wyeth Brothers (SMA), 2003). But the ASA refuses to even investigate whether advertisers are crossing this line. It sticks to its own narrow interpretation of the law.

Yet the Advertising Code the ASA is supposed to enforce requires advertisements to be 'legal, decent, honest and truthful.'

We have argued that the ASA should not restrict itself to a narrow test of legality when considering whether formula advertisements should be permitted. Article 11.3 of the International Code of Marketing of Breastmilk Substitutes states:

"Independently of any other measures taken for implementation of this Code, manufacturers and distributors of products within the scope of this Code should regard themselves as responsible for monitoring their marketing practices according to the principles and aim of this Code, and for taking steps to ensure that their conduct at every level conforms to them."

So shouldn't the advertising industry's self-regulatory body ensure conduct does comply with the provisions of the Code? Which means no advertising of breastmilk substitutes, be it infant formula or follow-on formula, or feeding bottles and teats? And no advertising of baby foods labelled for use before 6 months of age?

Wouldn't decent, honest and truthful advertisers look to Article 11.3 and comply with the Code's provisions instead of hiding behind a narrow interpretation of a weak law?

No need according to the ASA. This argument cuts no ice at all. Strict legality is the test.

Though we do see the occasional ruling requiring a tweak to the idealizing wording in an advertisement that should not have appeared in the first place.

Perhaps Lord Smith will take it forward down the right road and encourage a more responsible approach.

Until then, just one cheer for ASA. Hip, hip, hooray.

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