The Advertising Standards Authority (ASA) has been designated by the Office of Communications (Ofcom) as the regulatory body for online advertising of less healthy food and drink. 'Less healthy', in relation to a food and drink product, means one that: (a) falls within a description specified in regulations made by the Secretary of State; and (b) is 'less healthy' in accordance with the guidance entitled 'Nutrient Profiling Technical Guidance' published by the Department of Health on 1 January 2011. The designation, which is legally binding, was made under the Communications Act 2003 and will be in effect until 31 October 2034.
The ASA has been deemed fit for the role by Ofcom which states that it possesses the required financial resources and independence from businesses associated with the manufacture or sale of less healthy food or drink products. The ASA is also expected to comply with the statutory and regulatory obligations that apply to Ofcom. However, the ASA does not have the power to enforce penalties or demand information under certain sections of the Communications Act.
Ofcom holds the power to revoke or vary the designation under certain conditions, including if the ASA fails to meet the required standards or if the ASA no longer consents to the designation. Ofcom can also act as the regulatory authority concurrently with or in place of the ASA.
The ASA is required to cooperate fully with Ofcom at all times and report annually on its activities, including details on complaints received and handled. In particular, the ASA will report on: (i) the number of complaints received about online advertising of less healthy food and drink; (ii) the number of such advertisements about which complaints have been received; (iii) prior to investigation, the number of such advertisements assessed against the rules and, as applicable, details of the rule(s) they were assessed against (an assessment of such an advertisement against the rules is henceforth referred to as a "case"); (iv) the number of cases taken to investigation stage under the rules; as applicable, details of the rule(s) they were investigated under; and the status of those investigations, i.e. 'informal investigation' and 'formal investigation' (using the same categories as for completed broadcast advertising cases); (v) the number of cases that after investigation were (a) upheld and (b) upheld in part and the rule(s) they breached, and whether or not the investigation was referred to Ofcom.
This designation of the ASA as regulator, represents a significant step in the regulation of online advertising of less healthy food and drink, with the ASA taking on a pivotal role in this process. The success of this initiative will be closely watched and will depend on the ASA's ability to effectively regulate in this area, and on the ongoing support and oversight provided by Ofcom.
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