Boobs, swearing and erectile dysfunction: responding to advertising complaints

Responding to complaints about ads is part and parcel of the job for creative agencies and brands. The fact is, some of the best advertising pushes the boundaries of what is socially acceptable. Creating ads that challenge, confront or shock audiences has proven to be an effective way for many companies to get their message across.

And, of course, some ads are just plain offensive or inappropriate.

But what happens when somebody complains? In 2014, the Advertising Standards Board received a record number of consumer complaints – approximately 5,600 – about advertising. The usual suspects – boobs, swearing and erectile dysfunction – were all in there, along with a number of ads that received complaints because of their high ‘ick’ factor including scenes such as nose picking and farting. First place in the list of most complained about ads in 2014 was for an ad encouraging married people to have an affair, although the Board found the advertiser hadn’t cheated and the complaints were dismissed.

While consumer complaints can be a headache for agencies and brands, they are an important part of advertising self-regulation in Australia. Agencies therefore need to be aware of their obligations and should know how to respond to complaints when they arise.

Background

The Advertising Standards Board (ASB), part of the Advertising Standards Bureau, is the body responsible for handling consumer complaints about advertising in Australia. The Board is made up of 20 people, chosen to be reflective of Australian society and makes its determinations under the various industry codes prescribed by the Australian Association of National Advertisers (AANA), such as the AANA Code of Ethics, the AANA Code for Marketing & Advertising Communications to Children and the AANA Food & Beverages Advertising & Marketing Communications Code.

As a rule of thumb, about 85% of consumer complaints to the Advertising Standards Board tend to be dismissed. The top 10 most complained about ads in 2014 were all found to be compliant. But that doesn’t mean that brands and their agencies shouldn’t take their responses seriously. The consequences for having a complaint upheld can include a direction to modify or remove the ad, which can undermine campaigns and may involve significant costs to the agency and client.

The AANA Code of Ethics

The object of the AANA Code of Ethics is to ensure that advertising and other forms of marketing communications are legal, decent, honest and truthful.  The Code is divided into three parts:

1. Competitor Complaints;
2. Consumer Complaints; and
3. Other Codes.

When the ASB considers consumer complaints, it assesses the impugned advertisement against the requirements of Section 2 of the Code, which sets out rules about discrimination and vilification; the use of sex appeal in a way that is exploitative or degrading; violence; sex, sexuality and nudity; strong and obscene language; and health and safety.

The ASB does not consider complaints that fall outside the scope of the Code, which is why ads with a high ‘ick-factor’ or ads in ‘poor taste’ but that otherwise comply will not be found to be in breach.

A ‘prevailing community standards’ test also applies to all parts of Section 2, which effectively means that the ASB will have regard to what it considers to be prevailing community standards at the time the advertising/marketing material was published. Accordingly, this is a shifting gauge – something that might not have been in accordance with community standards in the past (such as an advertisement of a woman in a bikini) might be perfectly acceptable today.

What to do if you receive an advertising complaint?

In many cases an advertiser is not likely to know that someone has complained about their ad until they receive a letter from the Case Managers at the Advertising Standards Bureau.

This letter will provide a copy of the complaint(s) and identify what section of the Code is likely to apply. For example, if the complaint is about violence, the letter will identify that the most likely section of the Code to apply will be Section 2.3. It will also provide a list of information the ASB requires the advertiser to provide along with its response, such as the CAD reference number (if applicable) for the advertisement, a copy of the script etc.

Firstly, the most important thing is not to ignore the letter. Deadlines are tight and responses are usually required within seven days. In our experience, it is helpful to consider the following points when responding:

• What is the background? Where did the advertisement run and who was likely to see it? This can be particularly important if complaints relate to children.
• What is the nature of the product? Do any specific codes or regulations apply? This can be relevant, for example, for food or beverage product or an alcohol product.
• Does the advertisement have a CAD rating and, if so, was it screened during appropriate timeslots? This can help to establish whether the advertisement was appropriate to the relevant audience.
• Did you seek any legal or other advice about the advertisement? If so, what did it say?
• Did the advertiser receive any other complaints? While one complaint is enough to have an ad removed, if the ad is otherwise well received it may indicate that the complaint is not reasonable having regard to prevailing community standards.
• What does the relevant section of the Code say? The response should address each part of the relevant section of the Code to outline why the advertisement is not in breach. If the advertisement may also breach another section of the code that not listed in the ASB’s letter to the advertiser), this should also be considered and addressed.
• Reviewing previous ASB determinations.
• What is the tone of your response? Some advertisers tend to adopt an aggressive approach – one advertiser recently labelled complainants “oxygen thieves” – but in our experience this usually isn’t the best method.

There is no need for response to be lengthy, as long as it addresses all of the points raised in the ASB’s letter to the advertiser and explains the advertiser’s position.

And, of course, if you are in doubt, seek professional assistance. We have significant experience responding to ASB complaints on behalf of advertisers and agencies and are able to provide advice and draft responses at short notice.