I'm loathe to return to the subject because it bores me as much as it must bore you.
Nevertheless I thought you should know the final outcome of the complaint we took to the Advertising Standards Authority concerning a Department of Health advertisement first broadcast on television in December 2012.
The matter has been dragging on for almost two years but here's a brief resume:
Smokers will be told that just 15 cigarettes cause a mutation that can lead to cancerous tumours in a return to hard-hitting health campaigns, the Department of Health announced today.
Government launches £2.7m campaign on "hidden dangers" of smoking (Taking Liberties, December 28, 2012)
Our complaint was based on two counts: misleading information and lack of substantiation.
The ASA executive conducted a frustratingly long but ultimately thorough investigation during which no fewer than three recommendations were drafted upholding our complaint.
The DH challenged the first two but having given government officials every opportunity to defend the ad the executive drafted a third and final recommendation that still upheld our complaint. This was then forwarded to the ASA Council for ratification.
What happened next was extraordinary but hardly unexpected. Ignoring the recommendation of its own staff, the Council sided with the DH and rejected our complaint!
Our only option was to ask Sir Hayden Phillips, the Independent Reviewer of ASA Adjudications, to look at the Council's decision.
Our request was hand delivered to his office on August 4. A few days later we received an acknowledgement and a fairly long-winded explanation of his role.
I didn't hold out much hope and I was right. Having reviewed the case Sir Hayden is "not persuaded on this occasion that the [ASA] Council has made substantially flawed decisions within the proper limits of its own responsibilities".
In somewhat plainer English, he wrote:
The Council is not bound to follow recommendations from the executive or, indeed, I have to say, from an expert who has been appointed. The central issue I have to consider is therefore not one of process but of whether the rationale for the Council’s ruling is reasonable and defensible.
As I said in my letter to you of 7 August it is not my role to substitute my judgement for that of the Council but to understand their reasons for reaching the judgement which they have and to consider whether a complainant has presented persuasive reasons that a ruling is unreasonable or unfair.
I am not persuaded that is the case. The Council followed their expert’s advice on the science but not his view on interpretation; which they are fully entitled to do if their view is a defensible one and not perverse or irrational. It seems to me to be neither of those.
Case A13-218177 is therefore closed and there is nothing more we can do. Nor would I want to, frankly. The process was a joke from start to finish.
The ASA executive allowed the DH to challenge not one but two draft recommendations. When the executive upheld our complaint for a third time the ASA Council - chaired by former Labour minister Lord Smith - gave the DH a get-out-of-jail card by rejecting its recommendation!
The Council may be entitled to over-rule recommendations from the executive but despite Sir Hayden's best efforts to explain the process it still seems odd.
There is however some small consolation in the fact that Sir Hayden also wrote:
May I say that having examined all the papers on the ASA file I can totally understand why your review request is expressed as such a strong letter of protest at both the process and the eventual adjudication. You went through an 18 month investigation which increasingly frustrated you in its length and in which you received no less than three Draft Recommendations which all proposed to uphold your complaint.
I can therefore fully understand why you find it difficult to believe that the Council could take a different view from the Executive. But it did and I am afraid it was, in procedural terms, fully entitled to do so. There can be no flaw of process in that respect as draft recommendations are exactly what they say they are and rulings are entirely matters for the Council.
Re-reading his letter I note he also uses the word "sorry" three times:
I am sorry it has taken me so long to give you my substantive response ...
I am therefore sorry to say that I am not persuaded on this occasion …
I realise that this decision will be a disappointment to you, especially given the length of the process and then its outcome, and for that I am sorry.
Yes, we get it – you're sorry, Sir Hayden! Fat lot of good that is.
See also these previous posts on the subject: Spot the difference: how the Advertising Standards Authority changed its tune (July 30), At last, the ASA verdict on Forest complaint about DH "mutation" ad (July 30), On the record: that Forest-ASA correspondence in full (July 31), Bad week for the Advertising Standards Authority and the Department of Health (August 3).
Next ... the ASA rules against Smoke Spots. Fancy that!