Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
From time to time, the ASA or CAP is unable to assess evidence sent in support of advertised claims. On receipt of evidence, the ASA or CAP makes an initial assessment to see whether it is new, relevant, authoritative and without obvious flaws. The type and level of evidence will obviously depend on the type of claim being made: ‘breakthrough’ claims, for example, generally require more convincing evidence than more established claims. Evidence that is from, or supported by, authoritative reports, that has been published in a peer-reviewed and reputable journal or been reviewed by a suitably qualified expert will often be looked upon favourably. If the evidence meets those criteria and the ASA or CAP is unable to judge whether it supports the advertised claim, the ASA or CAP may seek advice from an expert consultant. The consultant’s advice is not binding on either the ASA or CAP.
If an expert is consulted, the aim is to obtain a report that is: relevant (usually judged from their CV or reputation), thorough (the suggested framework is outlined in the CAP Help Note on the Use of Experts by the ASA and CAP), prompt and transparent. Generally, the consultant’s report is sent to marketers, who may dispute it by submitting written comments, perhaps from a suitably qualified expert. If legitimate, well-argued disagreement about the science behind the product exists, the ASA or CAP will examine a marketer’s response and, in extreme cases, might even consider a dialogue between experts. That is unusual and most debate goes via the ASA or CAP.
Marketers should bear in mind that rule 3.13 states that “Marketing communications must not suggest that their claims are universally acceptaed if a significant division of informed or scientific opinion exists". A belief by some experts that the marketer’s claims are correct does not necessarily mean the ASA or CAP will accept the claims (Sunbed Association, 7 September 2005; Food Standards Agency, 20 April 2005; CTC and Cycle Campaign Network (complaint 10), 12 January 2005; Boots Opticians Ltd, 16 January 2002; The Harley Medical Group, 19 September 2001; Red Bull Ltd, 24 January 2001; Elida Faberge Ltd, November 2000, and The Co-operative Bank, December 1999).
See the Help Note on the Use of Experts by the ASA and CAP.
Last modified : 30 July 2010