A Guest Post: UK's Clearcast Clears the Air(waves)

As a subscriber to this blog, I am conscious that other subscribers may have seen reference to "Clearcast" from time to time in some of the UK blog posts – for example, when this blog has commented on ASA adjudications involving TV advertising that has been cleared by Clearcast. The editors of the Consumer Advertising Law Blog have kindly given me the opportunity to explain in a bit more detail who Clearcast is and the role that we play in the wider context of UK advertising regulation. The UK advertising industry is self-regulated; it is governed by codes of practice that are designed to protect consumers and create a level playing field for advertisers. The UK system is regarded as setting a high standard for advertising regulation – this is important, particularly given the recent close scrutiny by the UK government on issues such as the advertising of foods high in fat, sugar and salt (HFSS) as well as alcohol and most recently body image and the commercialisation of children. The UK advertising codes are determined by two industry committees – the Committee of Advertising Practice (CAP) and the Broadcast Committee of Advertising Practice (BCAP). These committees are made up of representatives from advertisers, media owners, agencies and clearance bodies (a full list can be found here). The Advertising Standards Authority (ASA) independently administers the Codes and holds advertisers to account by investigating complaints and publishing its adjudications. Every week, details of advertisements found to be in breach of the Codes are published on the ASA's website, with an outline of the complaint and nature of the breach. These adjudications are often reported in the national press and other media. ASA investigations occur after broadcast or publication (dependent on medium). However, it is a condition of UK broadcaster licences and required by the BCAP Code that all advertising in broadcast media is cleared against the Code prior to broadcast and broadcasters can face sanctions from Ofcom (the government regulator for the UK communications industries) should they repeatedly carry ads that are in breach of the Codes. We at Clearcast undertake preclearance for TV ads. The RACC (Radio Advertising Clearance Centre) undertakes a similar role for radio advertising and the CAA (Cinema Advertising Association) and BBFC (British Board of Film Classification) for on-screen advertising in cinemas. Non-broadcast ads don't normally have to be cleared in advance, although CAP provides a copy advice service so that advertisers can reassure themselves that their ads won't fall foul of the CAP Code. Clearcast is owned by the six largest UK commercial broadcasters, with others as clients, and we share their interest in getting ads to air that comply with the BCAP Code. Our copy clearance ethos is that we work with advertising agencies to help get ads to air, and keep them there. Importantly, we are not a regulator (that is the role of Ofcom, who delegate some of their powers to the ASA) and we do not create the rules (that is the role of BCAP). Preclearance is a two stage process. In the first stage we approve the ad script that is proposed by the agency. This involves: (i) advising on areas that may be in breach of the BCAP Code, such as a scene showing a speeding car in a car advertisement; and (ii) verifying any claims that are made. Every claim made in an ad has to be supported by evidence, and we have a number of specialist consultants that assess evidence on our behalf. Approval at the script stage ensures that an expensive ad is not shot that cannot be aired on UK television. Once the ad is made, the second stage of the clearance process involves checking that the ad meets the script, applying any timing restrictions that may be necessary (for example, due to their content, certain ads may only be shown after an agreed time in the evening) and checking for any flashing images that may cause seizures in people that suffer from photosensitive epilepsy. We also time and measure superimposed legal text against the requirements in the BCAP Code guidance note designed to ensure that people have time to read any small print. At this stage we may request edits to the ad, perhaps because the finished ad does not quite comply with the advice we provided when we approved the script, sometimes because the advertiser wants a less restrictive timing restriction. Last year, we received over 33,000 scripts and saw 60,000 ads. Whilst we work hard to ensure that every one of these meets the BCAP Code, there are inevitably some viewer complaints and a small number of these are upheld by the ASA on investigation. In 2010, 72 complaints were upheld, equivalent to 0.1% of the ads we saw. Whilst ideally there would be no upheld complaints, if that were to be the case, it's likely that Clearcast would be taking a very narrow interpretation of the BCAP Code and we would come under fire for being too strict and for limiting advertising creativity. If an advertisement is investigated by the ASA we work with the advertiser to respond to the issues raised; having gone through a rigorous process of clearing a ad, we fully defend the clearance. There are a variety of reasons that complaints may get upheld; for example, the ASA may take a different view to us on the offence likely to be caused by an ad, they may take a harsher view on a timing restriction or their scientific consultant may take a different view on whether a claim made in the ad is supported by the evidence provided. Some differences are inevitable as many of the judgements that both we and the ASA make are by nature subjective. We take our role very seriously; if we are judged to get a clearance wrong by the ASA then we review the process taken to reach that decision and take that adjudication into account for future clearances. So next time you read about an ASA adjudication I hope you'll reflect for a moment that it is the product of a robust self-regulatory system that protects the interests of consumers and advertisers alike, and that behind the scenes a lot of work goes into ensuring that we strike the right balance between striving to ensure the BCAP Code is met and enabling advertising creativity. The process is actually more open and transparent than you may think. If you would like to find out more, there is a lot of information on our website and we also run several training courses of general and specific areas of interest; details can be found here. – Chris Mundy, Managing Director, Clearcast

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