A fireside chat with Guy Parker of the ASA and Jason Freeman of the CMA

Partner Giles Crown chats with Guy Parker (GP), Chief Executive of the Advertising Standards Authority (ASA), and Jason Freeman (JF), Director of Consumer Law at the Competition and Markets Authority (CMA), about the latest issues in advertising and consumer law. The conversation – at Taylor Wessing's recent Advertising Forum event - focused on regulatory approaches, enforcement powers, and collaboration between the ASA and the CMA, particularly concerning advertising compliance, online responsibility, and consumer law enforcement strategy. 

Key points included:

1. ASA's transformation:
   • 2023 was significant for the ASA with increased AI integration to monitor online ads.
   • AI tools categorise ads for compliance experts to review.
   • The goal is to scale up from processing 14,000 ads per month in Q4 2022 to 10-20 million in 2024.
   • Human oversight remains integral before any action is taken.
   • Proactive work responsible for 92% of the 27,000 ad amendments or withdrawals in 2023.
2. CMA's priorities in this area:
   • Consistent themes over its first decade include addressing dark patterns, intermediary responsibility, contractual fairness, and advertising practices like drip pricing.
   • The anticipated Digital Markets, Competition and Consumers Bill's (DMCC Bill) consumer provisions are expected to come into force by April 2025 to strengthen enforcement.
3. Prioritisation approach:
   • GP: The ASA uses principles-based prioritisation sifting through complaints, research etc, preventing over-focus on trending topics.
   • JF: The CMA considers a broader remit when prioritising cases/work which involves legal/economic analysis.
4. Focus on platforms:
   • GP: A successful pilot has led the ASA, IAB and platforms/intermediaries to consider permanent regulation of platforms'/intermediaries’ responsibilities under its code.
   • JF: The CMA expects platforms to conduct risk assessments and take proactive measures against problematic content using algorithms.
5. Collaboration between the ASA and the CMA:
   • The two agencies collaborate without overlapping efforts; they share interests such as promoting responsible green claims.
   • Informal relationships/trust complement formal agreements like Memorandums of Understanding, where they exist.
6. Enforcement powers under the DMCC Bill:
   • JF: Imminent changes include powers for the CMA to impose civil fines for infringements with lower thresholds than previous regulations - up to 10% of worldwide turnover. The CMA is aiming for quicker investigations/resolutions.
7. Green claims guidance:
   • GP emphasises precision in green claims; businesses need to avoid unsubstantiated assertions.
   • Both agencies offer guidance for businesses making environmental claims.
8. Online choice architecture/dark patterns:
   • Both agencies have a history of dealing with these issues; it remains an active area with systemic challenges like countdown clocks still prevalent.
9. Implications of a Labour government:
   • No massive change anticipated; ongoing government work in consumer protection expected to continue under Labour leadership.
10. Name and shame tactics:
    • GP: While effective for responsible businesses, further sanctions are necessary for some smaller businesses and scammers/rogue traders that do not respond to naming and shaming.
11. Sector-specific regulation:
    • While less likely to investigate if there's an existing sector-specific regulator, neither agency rules out taking action if needed.

Please email events@taylorwessing.com if you would like a copy of the slides from Advertising Forum.

Read more on the latest brands news in this month's Brands Update.