Slipping standards

The Australian

Thursday 25 September 2003
By Simon Canning

Warren Brown was very happy. Sitting in the boardroom of his Sydney advertising agency Brown Melhuish Fishlock in late May, he was preparing to unveil a major new beer campaign that he said would redefine the way the amber fluid was marketed in Australia.

Alongside him were marketing executives from the agency's client Lion Nathan. Having delivered his preamble about the cutting edge nature of the ad, explaining how the agency had laboured on it for 12 months, travelled to London to work with the best special effects artists in the business and convinced Lion Nathan to invest a substantial amount of money, he ran the video. The TV screen flickered to life and the pounding beat of club music filled the room. On screen, a tongue squirmed from the mouth of a sleeping man and set forth on an odyssey to find a beer. A Tooheys Extra Dry. By the end of the commercial the tongue had returned to its home, dragging a beer into the sleeping man's mouth.

But as the ad went to air, another odyssey began not for the disembodied tongue, but for Lion Nathan and its agency. Within days complaints started to arrive at the regulatory body for advertising standards, the Advertising Standards Board.

"It is absolutely disgusting," one complainant wrote. "After seeing it only once a member of my family has been physically ill." Another described BMF's ad as a "desecration of the human body". Yet another questioned why people were being urged to drink while asleep. "This is one of the most appalling ads I have ever seen," another complaint read.

BMF and Lion Nathan were forced into damage control. The ASB informed Lion Nathan of the complaints and asked for an explanation. The brewer complied, noting that the ad was fantasy and created in a humorous vein. And then the wait began. A month later, after a meeting of the board, the complaints were dismissed and the ad was free to remain on air. Australia's self-regulatory system for monitoring advertising standards had worked at least as far as Lion Nathan and BMF were concerned.

Yet all is not as it seems with the system set up six years ago to monitor advertising. The ASB has come under increasing fire from a range of community interest groups, politicians and even from within the advertising industry itself. The ASB has been accused of elitism, a lack of transparency, a failure to embrace wider community values in its decisions and lacking teeth to enforce its own decisions. Even from within, there are questions as to whether the ASB is doing a good job, or even if the job it is doing is the right one. Self-regulation, many say, is just not working.

Four weeks ago health ministers, community campaigners and leading names from the alcohol and hotel industries converged on NSW Parliament to take part in an alcohol abuse summit. Paul McDonald, chair of the National Committee for the Review of Alcohol Advertising, delivered a damning report on the performance of the ASB, saying it had failed to act on hundreds of complaints received about alcohol advertising.

"Back in June 2002 the then Victorian minister for health became increasingly concerned with the trends in relation to alcohol advertising," McDonald told the summit. "The minister observed that alcohol advertising was increasingly out of step with community expectations."

McDonald revealed that only 5 per cent of complaints about alcohol advertising were considered by the ASB under a code relating directly to alcohol.

"Ninety-five per cent of alcohol advertisements are considered under another code, which is not specific to alcohol, and there is a 100 per cent dismissal rate under that code," he said. McDonald also noted that there was a lack of awareness of the complaints resolution system.

Victorian Health Minister Bronwyn Pike says the existing system, where two codes are applied to the advertising of alcohol one by the ASB and another by the alcohol industry, the Alcohol Beverages Advertising Code was failing the public. Pike warns that advertisers are sailing so close to the wind with their messages that regulation could be the next step.

"I don't think the dual system is working," Pike says. "I don't think legislation should be ruled out. The government has an interest in protecting the public interest."

Pike says many issues are involved in the responsible promotion of alcohol, ranging from age and sex to cultural issues, and that a body governing advertising standards needs to take these into account. One answer she proposes is a "watchdog for the watchdog".

"One area there could be is an annual consultative committee to look at complaints and how they are handled," she says. "But regulation should not be ruled out."

Criticism of the ASB is not confined to the advertising of alcohol. In late 2001 there was increasing concern raised by motoring groups and state transport ministers about the portrayal of speed and unsafe driving in car commercials. The debate reached a crescendo several months later when federal Transport Minster Ron Boswell stepped in and championed the creation of a car advertising code.

The voluntary code was redrafted several times (after complaints that it was too soft) before finally being adopted in August last year. The aim of the code is to stop a range of driving practices, such as speeding, breaking common road rules and aggressive driving being portrayed in ads.

Seven months after the code was introduced, the ASB heard its first complaint about a Mazda ad that had been on air for nearly a year. The single complainant claimed that the ad showed a car speeding through a car park in an unsafe manner, and that an image of a man wearing a seat belt showed him being thrown from side to side by the gravitational forces. On the basis of that single complaint the ASB ordered the ad off the air.

Mazda Australia complied with the order, and took the commercial off air but not without complaints of its own. Martin Benders, marketing manager for Mazda in Australia, says the ASB forces companies and their advertising agencies to respond to complaints, even where the complaint is based on false interpretations. "Our main issue with the process is that a single complaint (even one from a known lobbyist) will generate the need for us to provide a written justification of the TV commercial.

"This happens even where the complaint is known to be based on a false interpretation of what the complainant has seen. We have just received one where the complainant suggests that the car is shown crossing double lines illegally. This is just not correct, but we still have to go through the motions."

While Benders is critical of the fact a single complaint can trigger an ASB investigation, he admits that a number of other complaints received by the ASB about Mazda ads have been dismissed.

One of the lobbyists who has been a constant critic of the ASB is Harold Scruby, chairman of the Pedestrian Council of Australia. Scruby was a major proponent for the need for a car advertising code, and has since been a regular correspondent to the ASB, which he claims is failing to uphold the code.

"In so many cases the code is black and white and yet the ASB is dismissing many complaints on the basis that what is being portrayed is fantasy," Scruby says. "If you dismiss everything as fantasy, then there really is no reason for the code or the ASB."

Among some of the behaviour cited by Scruby as in breach of the code are a Saab doing four-wheel-drifts and driving "furiously" through a pedestrian zone, three Mazdas tailgating each other and Holden Rodeos becoming airborne.

In March 2000 the ASB suffered its most public rebuttal when an outdoor ad for Windsor Smith Shoes was found to offend public taste and decency. The ad, featuring a woman with her head at a man's crotch height, attracted dozens of complaints. However, when the ASB found against the ad, the shoe maker refused to remove it, and in the process highlighted what many critics claim is the self-regulatory system's greatest weakness its lack of teeth.

Charles Britton, policy and IT officer for the Australian Consumers Association, says self-regulation has led to "the softest of soft" decisions. "Our view is that the system is not working at all from the consumers' point of view," Britton says. "It is a self-regulator that makes up the rules and then enforces them itself. It is absurd."

Britton says the failure of the ASB is highlighted by the few complaints it does receive about ads, a situation he says has been brought on by its failure to consider complaints in terms of the broader community. "One of the sources of angst is that people are not listening any more. The industry got the soft system they wanted and now that they have got it, consumers are not paying attention to it. People have given up on the complaints system, and as a result of that, they don't make complaints about ads." He says the ASB then holds up the few complaints it does receive as an example that the self-regulatory system is working.

However, Britton says that a regulatory system with teeth has recently been proven to be popular with consumers. He cites the recent experience in the US where the adoption of federal laws on direct marketing have led to the setting up of a "do not call list" the direct marketers must abide by. "Half the homes in the US have signed up to it," Britton says. "Give them an effective regulatory avenue and they will go to it.

"Somehow we have to close the gaps between what people know are standards and what is actually being enforced. A proper self-regulatory system would have sanctions and penalties that do work."

Another issue that raises Britton's concerns is what he perceives as the lack of independence of the ASB. When the ASB was first created in 1998, it replaced the Advertising Standards Council, which ceased to exist when Australia's system of advertising agency accreditation was rejected by the Federal Court in a case brought by the Australian Competition and Consumer Commission and supported by the Australian Association of National Advertisers. Under the former system, media proprietors paid a percentage of their advertising revenue back to ad agencies in exchange for the agencies going as guarantor for advertiser debts to newspapers, radio and TV. Under the system the media companies also were bound to remove ads which the Advertising Standards Council found in breach of the code. To wit the system had teeth.

When the regulatory system collapsed, the AANA announced it would set up its own self-regulatory body. The system would be funded by ad agencies which would pay 0.035 per cent of their media billings to support the system. The AANA set up a secretariat, the Advertising Standards Bureau and named Robert Koltai, a longstanding member of the board of the AANA as chairman. The position effectively puts Koltai in charge of the ASB, a situation Britton and others claim places the AANA too close to the ASB.

Koltai is the spokesperson for the ASB, and all media pronouncements from the body carry his name. When not overseeing the ASB, he acts as director of corporate affairs for Colgate Palmolive. He is far from popular with many advertising agencies as a result of his prominent role in helping end the system of accreditation a fact he readily admits.

The board of the ASB is made up of 14 people appointed by the AANA who meet monthly to hear complaints. At the time of going to press many members were unwilling to speak on the record about their roles without the express consent of Koltai.

However, all those Media spoke to talked of the passion they bring to the voluntary positions and the great responsibility they feel they carry.

Brian Sweeney, head of Melbourne's Sweeney Research, has been on the board since its inception and believes it is fulfilling its role as the watchdog of advertising standards. Sweeney, the only member of the board not based in Sydney, says critics fail to understand what the board is about. "The members come from a wide range of disciplines and each is successful in their own right. Each one seems to be fearless in putting forward their point of view and some of the conversations can be quite robust. They express viewpoints without fear or favour."

One area Sweeney is willing to admit the ASB is lacking is in the area of enforcing its decisions. Asked what could be changed to improve the system he says: "The teeth to pull ads. I'd love to see that."

Catharine Lumby, a journalist with The Bulletin, author and lecturer, also joined the ASB at its inception. Lumby echoes Sweeney's views that the ASB is a forum for at times heated debate over the relative merits of ads. Lumby also rejects any suggestions either Koltai or the AANA influences the ASB in any way. "It isn't perfect," Lumby admits, "but as an example of self regulation it works."

Advertising agencies also publicly pronounce their support for the self-regulatory system, but speak to agency executives privately and there is a wide range of views about its success. No agencies were willing to go on record about their concerns, which are mostly about the proximity of the AANA to the ASB, the perceived role of Koltai and the fact that single complaints can see an advertising campaign costing several hundred thousand dollars pulled. Agencies also quietly voice concern about the time the ASB takes to make its decisions.

Chris Thomas, manager of public affairs for the Advertising Federation of Australia, says self-regulation has the AFA's full support. "It needs to be recognised that the 'umpire' in any arena, be it sport, politics or industry, may be subject to criticism from time to time. The ASB has a challenging role and in our view it does a difficult job professionally."

Another complaint many agencies voice is the lack of transparency that seems to accompany decisions. Russell Howcroft, MD of Melbourne agency Brandhouse Arnold, says many of the ad industry's concerns with the ASB could stem from a lack of understanding about what it actually does and how it arrives at its decisions. "I think the issue is a general ignorance about the way it operates," Howcroft says.

One former member of the ASB, Wendy McCarthy, believes after six years it could be time to review the system and try to address some of the concerns that have been raised by critics. While a staunch advocate of the ASB, she says: "If there is a flaw, I think it could be in the way it is structured. I would have thought it would be time for a review of the ASB. I think the board is doing exactly the job it was told to do. But the next question is, is this the best way to regulate?"

Koltai says the system has been proven to work. "We have been building a database of information over the last five years about what people's concerns are," he says. "In areas such as alcohol advertising, the public doesn't show a high level of concern. Some of the figures that have been quoted are simply wrong."

He admits the system may not be perfect and points to initiatives such as a recent decision to bring the board together for emergency meetings if the level of concern over an ad warrants it. On the issue of a single complaint generating an investigation, he says the ASB is duty bound to act and that the board itself has the job of reflecting the broader opinion of the community in each individual case.

No matter what its future, it seems just like the ads on which the ASB sits in judgment, Australia's system of advertising standards regulation will never be far from controversy.


John Bokor
Appointed August 1999. A working artist who manages an art gallery and co-edits a journal of art criticism titled A Public of Individuals

John Brown
Appointed May 1998. Former federal tourism minister and retired last year as chairman of the national Tourism Task Force

Joanna Cohen
Inaugural member. Marketing information manager for the University of Sydney and manages a Sydney rock band. She has also worked in media liaison, market research and the film industry

Graham Cox
Appointed August 1998. Director of advertising agency George Patterson Bates for 20 years

Thomas Keneally
Inaugural member. Author, playwright, scriptwriter and English professor and has written more than 20 novels

John Konrads
Appointed May 1998. Olympic gold medallist swimmer with extensive experience in sports and industry including corporate career with Ansett and L'Oreal

Mary Kostakidis
Inaugural member. Chief newsreader at SBS for 10 years and helped implement the station's classification and censorship policy

Geoff Lawson
Inaugural member. Former Australian cricketer. He has a degree in optometry and is a member of the University of NSW council

Catharine Lumby
Inaugural member. Columnist and senior writer for The Bulletin and associate professor of media studies at Sydney University

Roy Masters
Currently a journalist with The Sydney Morning Herald and TV and radio commentator. Was a rugby league coach and school teacher

Margaret Pomeranz
Inaugural member. Writer/producer with SBS, co-host and executive producer of The Movie Show. Was on the executive of the Film Critics Circle of Australia

Brian Sweeney
Inaugural member. Chairman of leading market research company Sweeney Research and evaluates the success of advertising campaigns

Emma Tom
Appointed May 2003. Author and journalist who currently writes two weekly columns for The Australian

Liz Wise
Appointed May 2001. Has produced four short films and has a bachelor of media. Has worked in the publishing industry as a business strategist and in community radio