Consequences of dishonest advertising

As I was travelling on the London Underground the other day, I saw an advert that caught my eye.

Please note: if you are a journalist from the Daily Mirror and would like to use this photo in a story, it would be appreciated if you would ask permission first rather than just stealing it like you did with the last photo I posted of a dodgy advert.

That was a surprising claim, I thought. Just wipe a magic potion across your brow, and you get fast, effective relief from a headache.

So I had a look to see what the medical literature had to say about it. Here is what a PubMed search for 4head or its active ingredient levomenthol turned up:

A Google Scholar search similarly failed to find a shred of evidence that the product has any effect whatever on headaches. So I have reported the advert to the ASA. It will be interesting to see if the manufacturer has any evidence to back up their claim. I suppose they might, but they are keeping it pretty well hidden if they do.

But it occurred to me that something is very wrong with the way advertising regulation works. If the advert is indeed making claims which turn out to be completely unsubstantiated, the manufacturer can do that with no adverse consequences whatever. False advertising is effectively legalised lying.

When I last reported a misleading advert to the ASA, the ASA did eventually rule that the advert was misleading  and asked the advertiser to stop using the advert. It took almost a year from when I reported the advert to when the ruling was made, giving the advertiser completely free rein to continue telling lies for almost a whole year.

In a just society, there might be some penalty for misleading the public like that. But there isn’t. The only sanction is being asked to take the advert down. As long as you comply (and with very rare exceptions, even if you don’t), there are no fines or penalties of any sort.

So where is the incentive for advertisers to be truthful? Most dishonest adverts probably don’t get reported, or even if they do get reported the ASA might be prepared to be generous to the advertiser and not find against them anyway. Advertisers know that they can be dishonest with no adverse consequences.

I would like to suggest a new way of regulation for adverts. Every company that advertises would need to nominate an advertising compliance officer, probably a member of the board of directors. That person would need to sign off every advert that the company uses. If an advert is found to be dishonest, that would be a criminal offence, and the advertising compliance officer would be personally liable, facing a criminal record and a substantial fine. The company would be fined as well.

We criminalise other forms of taking money by fraud. Why does fraudulent advertising have to be different?

4 thoughts on “Consequences of dishonest advertising”

  1. The ASA does have some teeth in that their legal backstop is Trading Standards. If an advertiser won’t comply with an adjudication, the ASA will put them on the ‘ naughty step’ , and only after that might they be referred to Trading Standards. But as you say all this can take years. Some research on this will be published soon.

    I know you know all this, I’m just commenting for other readers.

  2. The ASA are very quick to throw out complaints that don’t fit their rather narrow remit, just 24 hours when I made my one complaint!

    The second time I contacted them, two years later, was altogether different. They had given my email to a marketing company, even though I had expressly asked them not to hold my personal details or email address. They were gracious enough to admit the error and apologise profusely, explaining, “Unfortunately, the email message was sent to the people who made the complaints (such as yourself), rather than the people working at the companies about whom the complaints were made. ”

    In general, my faith in such agencies is zero.

  3. This stuff has been around and making very similar claims for years. I seem to recall seeing something about it getting into trouble for false advertising claims a fair number of years ago; at the time I had only noticed it appearing on the shelves (in its current brand and colours) maybe a year earlier, and then I remember hearing something about it being shown not to work; it disappeared off the shelves for a while, and then later it came back again. I have to be cautious about this, because it was all years ago and I was young at the time, just a kid who suffered from migraines, and I can’t remember the details. It could even just have been a really critical (and effective) newspaper story. (Sorry, I wish I had more info I could give you!)

    I did try this stuff back then, and I’ve used it once in the last few years, when I was desperate. It’s basically just menthol, so it makes your head feel somewhat ‘cool’, though it doesn’t actually reduce your temperature. It’s a lot like rubbing Vicks or tiger balm on your face. As such, it can also cause burning and make your eyes water a lot. My personal experience with it is that it makes a headache I have much worse, because it’s a strong menthol pong right next to my eyes, and it gives me sinus pain. When I was a kid I also remember constantly touching my fingers to my head because I was worried my skin would be blistering. Not that it ever actually caused me any skin irritation, but it’s a very strong tingling/burning sensation, and it felt like it should be causing commensurate physical damage (certainly don’t use it on any child young enough that they might not wash their hands if they touched their forehead, cuz you don’t want to get menthol in your eyes or… uhh… other places).

    Sorry your experiences with the ASA have left you feeling like you’re swimming through syrup. I read your piece about Boots Cold and Flu spray, and I was fairly impressed that you managed to get real results with the ASA (as somebody considerably less science literate, I am used to feeling pretty much impotent to cause any real change when up against powerful companies replete with overstaffed legal departments). Stay strong: it might be slow work, but you’re fighting the good fight :o)

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