In this post, we've distilled the ASA's stated key considerations based on its work from last year: claims regarding climate change; body image and youth vaping; the ASA’s Active Ad Monitoring System (including their AI strategy for 2024-2028); and the ASA’s pilot with online intermediaries and platforms. 

Key Takeaways and what it means for 2024 and beyond

Climate Change 

• Something that won't surprise you from a look out of the window on most days: the ASA is focussed on climate change and ‘green claims’. Their work has so far prioritised issues and sectors which are key to the delivery of the UK’s legal net target to be net zero economy by 2050, focusing on misleading omissions and sustainability claims by energy and transport companies. You can find examples of the ASA’s rulings in this area via our previous posts relating to electric vehicles,  electric vehicle batteries and artificial grass and you can sign-up here to our MSE Today Blog be notified of our weekly round-ups of the ASA key rulings. 
• The ASA has identified key areas where consumers require further information with regard to waste and recycling, namely: (i) product composition (which parts are/ aren’t compostable/recyclable?); (ii) disposal location (at home or at a specialised facility and if so how prevalent are they?); (iii) the length of time required for the waste to break down fully; and (iv) outcome of recycling/disposal (i.e. does it produce microplastics?)
• New guidance was also published on recycling, biodegradable and compostable claims, as well as meat, dairy and plant-based substitutes.

Body Image 

• While the ASA has strong form with upholding complaints about negative body image, 2023 brought out bold new issues with regard to potentially misleading digitally altered images and cosmetic surgery abroad. The findings of the ASA’s research on digitally altered (i.e. enhanced) images will be published this year. Recent news about the serious health issues that can result from travelling abroad for cosmetic surgery have highlighted the issue. The ASA is concerned with ads which trivialise decisions to have cosmetic surgery, pressure consumers into surgery by taking advantage of insecurities or omitting material information about the need for pre-consultations. 
• For a summary of the type of action the ASA are taking, please see our article on an ASA ruling covering advertisement of Botox (a prescription-only product). In addition, the ASA has worked with regulators abroad to take enforcement action against such advertisers and to promote responsible advertising in Europe and beyond, including by being a founding member of the: (i) European Advertising Standards Alliance (EASA); and (ii) International Council for Ad Self-Regulation (ICAS). 

Youth Vaping 

• The ASA continues to crack down on unauthorised advertising of nicotine-containing e-cigarettes. We can expect to see even more enforcement action against vaping brands that use prohibited media to advertise their products as well as the ASA issuing Enforcement Notices to key players across all social media platforms.
• In addition the ASA plan to: monitor vaping ads with their in-house Data Science Team; partner with other regulators; and update their industry-specific guidance. 
• We’ll keep you updated as and when these developments occur.

AI Ad Regulation 

• The ASA already uses their “Active Ad Monitoring system” which uses AI to allow the ASA to sort through large volumes of ads and filter the ones most likely to have specific compliance issues, or which relate to a specific key issue. By the end of 2023, this enabled them to process over 500,000 ads per month, to a total of 3 million across 2023. 
• They ASA has targeted the system to assist with their projects including on climate change and the environment, youth vaping, gambling and prescription-only medicines. However, the ASA plans to be more ‘proactive’ and will be extending this reach to more forms of advertising - meaning that you don't need a complaint anymore to be caught by the bots!
• The ASA has noted that it expects more than 10 million ads processed this year. With AI playing a major role in communicating breaches to the ASA (as opposed to solely a consumer or competitor), businesses must maintain a cautious approach to complying with the ASA’s rules, given that they can expect an increase in investigations. 

In the report the ASA outlined their new 2024-2028 strategy for “AI-assisted collective ad regulation” in which they will:

• Continue to use their AI-based Active Ad Monitoring system which currently covers the environment, youth vaping, gambling and prescription-only medicines, adding more data and broadening the topics covered, as well as prolonging their climate change and environment project which already uses the system; 
• Consider improvements to the online regulatory framework to react to the challenges of regulating online ads; 
• Advocate for permanent Intermediary and Platform Principles (“IPP”) (see further detail on this pilot below); and
• Invest more in preventative/ proactive work to stop irresponsible ads appearing in the first place.

In light of the ASA’s increasing scrutiny, businesses are encouraged to build on their work streams which ensure compliance with the ASA’s rules, including internal training on the ASA’s rules and having an approval process where ads are robustly reviewed prior to being published.

Intermediary and Platform Principles 

This year the ASA ran the IPP pilot – a one year pilot scheme with 10 participating media companies (including Amazon Ads, Google and TikTok) to implement a standardised set of principles across companies to promote advertisers awareness of the CAP Code and to help the ASA secure compliance. Under the IPP pilot the companies also provided the ASA with information to demonstrate how they operate under the principles including in relation to paid-for ads, age-restricted ads and scam ads. Overall, the ASA concluded that over the course of the pilot the media companies implemented the relevant principals and supported the ASA to regulate online ads. 

The principles require participating companies to: (i) make advertisers (or agencies) aware, in a “reasonably prominent way” of the requirement for ads aimed at UK audiences (“UK Ads”) to comply with the CAP Code; (ii) ensure their policies and contractual terms require UK Ads to comply with the CAP Code; (iii) assist promoting awareness of the ASA system; (iv) adopt reasonable measures to make advertisers (or agencies) aware of tools or controls that can be used to assist compliance with minimise children’s and young persons’ exposure to ads attracting an age targeting restriction under the CAP Code; (v) act promptly to remove non-compliant ads; and (vi) respond promptly to the ASA’s reasonable requests for information to assist its investigations. 

Advertising Agencies Named on Rulings

We have also noticed that the ASA have started to include reference to an “agency” along with the details of the advertiser which have always been published in its Rulings. Whilst the ASA haven’t yet commented on this publicly, it seems to reference agencies which have been involved in production/design of the relevant ad. This appears to be a move by the ASA to increase the accountability and visibility of other parties, including agencies, along with advertisers themselves for producing ads which break the CAP Code. 

Agencies will therefore be brought under the public’s scrutiny for breaches of the ASA’s rules, and are also encouraged to adopt measures such as reviewing ads prior to publishing and providing updated training on the ASA’s rules.

If you have any questions on the topics raise in this post, or wish to discuss advertising law more generally, please contact Alex Lowe and Hannah Potter.