As from 1 December 2011 if you are thinking of complaining to the Advertising Standards Authority ("ASA") about a competitor's advertising, you will first need to raise your complaint with the advertiser, give the advertiser an opportunity to respond and submit evidence of this before your complaint will be considered by the ASA.
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The ASA has introduced a change in procedure concerning
complaints about competitors' advertising, in an effort to
promote faster resolution of disputes and to cut costs. This change
has arisen following the internal process review which the ASA
concluded in October.
From 1 December 2011 the ASA will not consider any complaint about
advertising raised by a competitor unless the complainant is able
to show that it has raised the issue with the advertiser and tried
to resolve the dispute. The ASA states that it will expect to see
evidence of a letter, ideally sent by registered post, signed by a
person of sufficient seniority, which clearly sets out the
advertisement complained of and the nature of the complaint. Where
the advertisement is displayed online a screenshot of the relevant
page should be enclosed or a cached copy of the site secured.
The advertiser must then be allowed five working days to provide a
substantive response. If the advertiser has then not opened a
substantive dialogue or the parties cannot reach an agreement, a
complaint may then be submitted to the ASA, which should attach
relevant correspondence. It is not clear whether, if a substantive
dialogue has commenced, a complaint may still be made, and if so,
when. A common sense view should be taken, depending upon how
discussions progress.
The ASA will retain discretion to waive this requirement in rare
and appropriate cases and will monitor the efficacy of the change
in procedure over the coming months.
While many complainants may, as a matter of course, have followed
this practice in the past, this requirement will represent a change
in practice for some complainants and will be relevant to the
tactics of considering a competitor complaint to the ASA.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
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The original publication date for this article was 29/11/2011.