On the record: that Forest-ASA correspondence in full

January 2013 – July 2014

ASA – Advertising Standards Authority
AH – Angela Harbutt (Forest)
SC – Simon Clark (Forest)

Note: if you don't have time to read the complete correspondence, Brian Monteith has picked out some of the most salient points here: Why do governments lie? Because they can!

28 December 2012 – DH launches TV ad campaign. Voiceover states:

“When you smoke the chemicals you inhale cause mutations in your body and mutations are how cancer starts. Every 15 cigarettes you smoke will cause a mutation. If you could see the damage you would stop.”

14 January 2013 – Forest (AH) submits complaint to Advertising Standards Authority. Complaint is based on two counts: (a) misleading information and (b) lack of substantiation. In our opinion the advertisement was in breach of the Advertising Code.

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5 March 2013 – Email from ASA to Forest (AH)

As you may be aware, we are investigating your complaint about the Department of Health smoking ad. It is the ASA’s policy that any complainant or organisation who may have an obvious interest in the outcome of the complaint (such as consumer bodies and pressure groups) are named in communication with the advertiser and in the final adjudication. Could you provide your permission to name Forest in any future correspondence with the advertiser and the final adjudication?

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6 March 2013 – Email from Forest (SC) to ASA

Thank you for your email to my colleague Angela Harbutt. I confirm that you have our permission to name Forest in any future correspondence with the advertiser and the final adjudication.

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3 September 2013 – Letter from Forest (AH) to ASA

Following our complaint to the Advertising Standards Authority about the above advertisement, our subsequent correspondence with the Department of Health on the matter, and our telephone conversations with you to date, we wish to make a formal complaint regarding the progress of our complaint.

As you will be aware, it was January 2013 when we first lodged the complaint. Eight months later we are still awaiting a decision on the matter. There have been no follow up questions – indeed no communication at all from the ASA to Forest for some considerable time.

I note that in this period the ASA has ruled on at least three complaints on tobacco-related advertisements. All three complaints were submitted by high profile anti-smoking groups against the tobacco company Gallagher Limited.

A12-208266 complaint submitted by ASH, ASH Scotland and Cancer Research UK
A12-210929 complaint submitted by Cancer Research UK
A12-213116 complaint submitted by Cancer Research UK

I do not know if the ideological stance of the organisation making the complaint has any bearing on how a complaint is investigated by the ASA. Nor do I know if the fact that we are making a complaint against a government department, rather than a corporation, has influenced the ASA’s approach or attitude towards this investigation.

Whatever the reasons for the failure of the ASA to make an adjudication on our complaint to date, I do not believe this is a particularly complex matter to investigate. From the information initially provided, and the responses from the Department of Health sent to me and forwarded to the ASA, it seems all too clear that the Department of Health mislead the public in the advertisement in question and a statement to that effect should be issued without further delay.

The basis of this formal complaint is therefore (a) the unacceptable period of time taken by the ASA to rule on our complaint (ASA reference: A13-220450) and (b) the lack of communication from the ASA to keep us appraised of the progress of the investigation.

I understand from the ASA complaints procedure that in addition to stating the nature of my complaint, I should also let you know how we feel the ASA can resolve the problem.

As my complaint is against a prominent government department, in order to help resolve this issue and satisfy us that my complaint has been rigorously investigated and that the ASA has remained even-handed throughout the investigation, can you please provide the following:

(a) A report, document or statement showing the “average” investigation time (from time of complaint to adjudication) for a complaint

(b) The precise number of working days taken (from date of complaint to ASA adjudication)

i. A12-208266 complaint submitted by ASH, ASH Scotland and CRUK
ii. A12-210929 complaint submitted by Cancer Research UK
iii. A12-213116 complaint submitted by Cancer Research UK
iv. A13-220450 complaint by Forest (to date)

© A timeline of your investigation into my complaint to date (January 2013 to September 2013)

(d) Copies of all correspondence thus far sent and received by the ASA during the course of the investigation into my complaint.

(e) A realistic explanation of how you expect to bring this investigation to a satisfactory conclusion to include outstanding action points (if any) and a timeframe (estimated working days remaining).

Can you please provide written acknowledgement of your receipt of this complaint within five working days and a reply to my complaint within 15 working days.

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12 September – Letter from ASA to Forest (AH)

Thank you for your letter dated 3 September, post marked 9 September, which I received on 10 September.

I appreciate your concerns regarding the length of time our investigation has taken so far. As background to this investigation and regarding your point about a lack of follow-up, we received 18 complaints about the Department of Health ad and to provide continual updates to all complainants would not be practical. I should point out that in instances where an investigation has multiple complainants, we generally communicate with the initial complainant only. However, in response to your letter I will endeavour to provide you with regular updates in order that you can be assured that your complaint is being dealt with.

I can assure you that the ideological stance of an organisation that has made a complaint has no bearing on how a complaint is handled. All complaints are dealt with the same level of equity whether they are from a pressure group, competitor or member of the public. Furthermore, you will note from our website that we have adjudicated on many advertisers, including Government departments, high profile advertisers and large companies. The nature of the complainant and advertiser has no bearing on how we deal with an investigation as the Code rules apply equally to all advertising.

Your letter points out that you do not consider the advertising to be particularly complex. On this point I will need to disagree. The wealth of information on genetic mutations, whether through smoking or not, is indeed a complex area and one that means we must consider the basis of the claim, and in this case, additional academic research which the advertiser supplied to substantiate the claim. Due to the amount and depth of information supplied to us, we must examine each submission in detail.

I now turn to your specific points raised on page 2 of your letter. You asked for a document showing the average investigation time. You can view our turnaround performance in the 2012 Annual Report, available on the ASA website – www.asa.org.uk. Additional information can be found in the document 'The ASA’s Final Response to the Process Review' enclosed. I should point out that although the documents cite average timescales, in some cases, such as this one, investigations can take considerably longer. This is something we strive to avoid, but due to many factors such as, and not limited to, complexity of information, the need to take additional advice, advertiser delays and supply of additional information, it is not always possible. Comparing our current investigation with cases on different subject matters and different issues is not constructive, the time taken to resolve each case is the product of the individual circumstances.

It is difficult to provide a timeline for our current investigation. However, I can assure you that it is not our policy to cause unreasonable delays. To date we have been in discussions with the Department of Health and their responses to our enquiries have not always been as swift as we would have hoped. We are in the process of evaluating the evidence they have sent us and will no doubt have additional questions for them following that review, which we hope to complete in the next few weeks. We will then have had to allow them sufficient time to consider the points that we have raised with them before producing our draft recommendation, which we will send to you for comment. At this stage, we are hopeful that we will not need to enlist the help of an expert to assess the evidence provided, but that is a possibility.

It is not our normal practice to disclose the correspondence we receive in confidence to third parties. Any points the advertiser makes, if we feel they are relevant, will be included in our draft recommendation which you will have sight of.

I hope this letter has adequately addressed your concerns and I will be in touch shortly to update you with our progress.

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9 October 2013 – Email from Forest (AH) to ASA

It has now been a month since your last letter responding to my complaint. I have to say that I find your statement that the Department of Health responses to your enquiries "have not always been as swift as we would have hoped" is extremely frustrating given the resources available to the Department. I assume that there are deadlines put in place for advertisers to respond - or the delaying tactics of advertisers could go on for months (as indeed this review has).

In your letter to me dated 12th September you stated that you hoped to have completed the review "in the next few weeks" with some caveats regarding the possibility of yet more questions. Can I ask what progress has been made since September 12th? Has the review been concluded? Are more questions being asked? and if so when might you reasonably expect a reply from the Department of Health and therefore a final conclusion to this review.

I would be grateful for a reply as soon as you are able, given that length of this review to date.

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10 October 2013 – Email from ASA to Forest (AH)

As you will be aware, our letter was returned to us by Royal Mail and we resent it on 20 September by post and email. You will appreciate that we have no control over the internal workings of the Department of Health and we must balance our requests for information with their priorities. We have sent the DH our queries and they are consulting with an external expert who does not work for them so we must consider their independent priorities. We hope to have a response from them in the next few days which we will consider. After this we will discuss, internally, our next steps. Please be assured it is all our interests to bring this investigation to a close as soon as possible.

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10 October 2013 – Email from SC to AH

Consulting with an external expert! Shouldn't they have done this before they ran the campaign? Clearly they are looking for evidence to justify the ad after the campaign. I would be tempted to write back in that vein and point out that the DH is clearly stringing the ASA along and the ASA should give it a deadline. If the DH fails to respond by that deadline the ASA should make a judgement based on the points that have been made and people will rightly their own conclusions about the DH's behaviour. Any further delay reflects badly on the ASA etc.

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1 November 2014 – Email from ASA to Forest (AH)

Please find attached our revised Draft Recommendation regarding your complaint against the Department of Health’s Smoke Free campaign.

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1 November 2014 – Letter from ASA to Forest (AH)
+ Draft recommendation #1 (Forest complaint upheld)

The attached report is now ready to be sent to the ASA Council. We have based it on the additional information we received from the advertiser. If you want to send us more, please do so now.

As you can see from the attached we are recommending that your complaint remains upheld.

The report is a draft recommendation and the decision and wording will rest entirely with the Council, who may see things differently.

Please ensure you have made all the points that you want to make. We shall consider written comments on the factual accuracy of the draft if we receive them by 8 November. If you have no additional comments to make, please let us know so that our waiting for your response does not hold up the investigation.

The advertiser and Clearcast, the clearance body for TV ads will also receive a copy of the draft recommendation today.

If we change the draft recommendation materially as a result of comments we receive, we shall tell you. If no material changes are needed, the draft recommendation will be forwarded to the Council for consideration.

We shall write to you again to tell you the Council’s decision and the publication date for the final report. Please treat the draft recommendation as confidential until the final report is published.

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15 January 2014 – Email from Forest (AH) to ASA

It has now been one full year since I submitted a complaint to the ASA regarding the above government advertisement. This is an extraordinarily long time to be waiting for a ruling on this matter. It is also over 8 weeks since you supplied me with the ASA draft ruling on this matter.

Can you please advise what stage you are at in "seeking further clarification" from the government on this advertisement, and when we might expect a final decision from the ASA? As stated previously I do not think that the government, or any other advertiser, should be allowed to delay matters unnecessarily, particularly given that the misleading advertisement is still widely promoted and available on Youtube, and probably other outlets.

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15 January 2014 – Email from ASA to Forest (AH)

We appreciate your concerns that this investigation has been taking some time to conclude. In exceptional circumstances, some investigations do take longer than we expect, as is the case with your complaint. As you can appreciate, the ASA and the advertiser are keen to resolve our case as soon as possible. In order to do so, we are hoping to meet with the Department of Health in the coming weeks to facilitate a resolution to the investigation. As soon as I have an update I will let you know.

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3 February 2014 – Email from Forest (SC) to ASA

Further to your email to my colleague Angela Harbutt dated January 15, I am writing to request an urgent conclusion to our complaint which was submitted over 12 months ago.

You said you were "hoping to meet with the Department of Health in the coming weeks to facilitate a resolution to the investigation".

"Hoping" isn't good enough. Nor is the vague timescale "in the coming weeks". Please advise exactly when that meeting will take place and when, finally, the matter will be concluded.

I would also like to know if minutes of that meeting will be available, to ensure transparency, and whether Forest, as the principal complainant, will be sent a copy.

You say that "In exceptional circumstances, some investigations do take longer than we expect, as is the case with your complaint". Can you please give me some examples of ASA investigations that have taken over a year to be resolved?

Please note that if we do not receive a satisfactory response to the questions in this email, and/or a rapid resolution to our complaint (with a confirmed deadline), we shall have no alternative but to take the matter further.

This will include, but is not restricted to, releasing all correspondence between Forest and the ASA, including the Draft Recommendation which upheld our complaint, to interested parties.

I am sorry to have to write in these terms but the delay in concluding this matter is totally unacceptable and reflects poorly not only on the advertiser but on the ASA itself.

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3 February 2014 – Email from ASA to Forest (SC)

Further to your email which I received this morning, please find attached our response. I am happy to discuss any aspect of our letter if necessary. If you require a hard copy, please let me know.

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3 February 2014 – Letter from ASA to Forest (SC)

Thank you for your email dated 3 February. It is always our intention to ensure that investigations are progressed as quickly as circumstances allow and we fully understand your frustration that this investigation has not yet concluded. This investigation has taken longer than expected due to the very complex nature of the evidence provided to support the advertised claim and, to an extent, the time it has taken the Department of Health to respond to our queries regarding that evidence.

Many factors influence the length of time an investigation will take and direct comparison with other cases is therefore of little value. However, in response to your specific query, we published adjudications in relation to acupuncture and homeopathy last year, which followed investigations that required detailed assessment of medical research and which both took over a year to complete.

To update you on the progress of our investigation, we met with the Department of Health on 24 January. The minutes from that meeting will not be made available but any points raised during discussions that are relevant to our assessment of the ad will be reflected in the draft recommendation, which you will have an opportunity to comment on, and the resulting final adjudication.

Following our recent meeting, we can confirm that we will be asking an expert to consider points raised. We expect to appoint an expert in the next week and for them to provide their assessment within another two weeks, after which we will draft a revised recommendation, inviting comments on its factual accuracy. We hope to present our recommendation to the ASA Council mid-March and the final decision and wording will rest entirely with them. If we are able to ask Council to consider our recommendation within the proposed timescale, a final adjudication will be published at the end of March, or early April. We hope you can appreciate that it is not possible for us to say with certainty when the case will be presented to Council as the parties must be given an opportunity to comment on the updated draft recommendation and those comments, if relevant, will have to be addressed before Council can make its decision.

We hope that this letter addresses your concerns. We work with advertisers and complainants on the understanding that correspondence is kept confidential. We understand that you wish this investigation to be concluded as quickly as possible and we can reiterate that that is our aim. Releasing our correspondence would not expedite matters and we hope that you will honour our requests for confidentiality to be maintained.

We will continue to update you on key developments of our investigation as they arise, which will include advising you of the name of our appointed expert.

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18 February 2014 – Email from ASA to Forest (SC)

Further to my email of 3 February, we have appointed an expert to provide a report for us. We hope to receive this within the next two weeks. Depending on the outcome of that report we may issue an additional draft recommendation for parties to comment on. We will continue to update you on key developments of our investigation as they arise.

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18 February 2014 – Email from Forest (SC) to ASA

Thanks. Can you confirm the name of the expert and his or her experience in this field?

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18 February – Email from ASA to Forest (SC)

You can find a summary of our expert’s experience from this link - http://www.cap.org.uk/About-CAP/Our-experts/General-knowledge-experts.aspx

The expert is Dr Mark English. As you can appreciate, no direct correspondence can be entered into with our expert.

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1 April 2014 – Email from Forest (SC) to ASA

I would be grateful if you could update me on the progress of our complaint. It is now almost 15 months since we submitted it and six weeks since you wrote to me saying you hoped to receive a report from an expert "within the next two weeks".

Can you confirm that you received this report? Since we have seen no "additional draft recommendation for parties to comment on" can you explain the delay in issuing a final judgement on our complaint?

You have asked me to keep our correspondence confidential - a request I have respected - but as the weeks go by it gets increasingly hard not to put this matter in the hands of a member of parliament with a view to raising this issue with the relevant minister in the Department of Health.

I look forward to your reply.

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7 April 2014 – Email from ASA to Forest (SC)

Thank you for your email. As you can appreciate we are required to consider any expert report in detail and if necessary ask further questions for clarity. We are now in a position to update our recommendation and I hope to be able to send this out soon.

Regarding our previous draft recommendation, we do request that this is kept confidential. Until the ASA Council have considered our assessment and make their final decision, any draft recommendation may change, therefore it may not reflect the actual outcome.

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17 April 2014 – Email from ASA to Forest (AH)

Please find attached our draft recommendation regarding you complaint about the Department of Health’s smoke free campaign. If you have any comments to make, please send them to me by 28 April.

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17 April 2014 – Letter from ASA to Forest (AH)
+ Draft recommendation #2 (Forest complaint upheld)

The attached report is now ready to be sent to the ASA Council. We have based it on the information we have at the moment. If you want to send us more, please do so now.

As you can see from the attached we are recommending that your complaint is upheld.

The report is a draft recommendation and the decision and wording will rest entirely with the Council, who may see things differently.

Please ensure you have made all the points that you want to make. We shall consider written comments on the factual accuracy of the draft if we receive them by 28 April. If you have no additional comments to make, please let us know so that our waiting for your response does not hold up the investigation.

The advertiser and Clearcast, the clearance body for TV advertising will also receive a copy of the draft recommendation today.

If we change the draft recommendation materially as a result of comments we receive, we shall tell you. If no material changes are needed, the draft recommendation will be forwarded to the Council for consideration.

We shall write to you again to tell you the Council’s decision and the publication date for the final report. Please treat the draft recommendation as confidential until the final report is published.

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17 April 2014 – Email from Forest (SC) to AH

Second draft recommendation and they are STILL giving the advertiser the opportunity to respond before it goes to the ASA Council ... which may or not approve the recommendation!!

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24 April 2014 – Email from Forest (SC) to ASA

Thank you for your letter and second draft recommendation. We have no further comments to add. I appreciate you are awaiting comments, to be received by April 28. Nevertheless, can you tell me when the recommendation is scheduled to be put to the ASA Council and the estimated publication date for the final report?

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24 April 2014 – Email from ASA to Forest (SC)

Thank you for your email. Unfortunately I am unable to provide you with firm timelines due to a number of factors. If the Department of Health have comments that require a revision to our recommendation, the draft will be delayed. However, if the Department of Health have no comments to make on our draft recommendation, we will put it forward to the ASA Council next Thursday. Their full comments will be available to us by the following Wednesday. If the Council are divided in their deliberations, it may go forward for a vote which will take a further week. You should be aware that in some circumstances, the ASA Council may ask for the case to be presented to them at their monthly meeting at our offices. If this is the case, they will have the chance to discuss it during their meeting in late May. I will keep you up to date if this is the case.

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24 April 2014 – Email from Forest (SC) to ASA

Thanks. If you could update me next week, prior to the ASA Council meeting on Thursday, that would be most appreciated.

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2 May 2014 – Email from Forest (SC) to ASA

Can you advise me of what is happening? I understood that responses to the draft recommendation had to be received by 28th April and if there were no further responses the draft recommendation would be considered by the ASA Council at its next meeting, which I took to be yesterday. Please correct me if I am wrong.

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7 May 2014 – Email from ASA to Forest (SC)

Apologies, I should have been clearer in my recent email. The ASA Council meet once a month for a face to face discussion. However, we ask them to consider cases, which they view and comment on, online each week. In the first instance we ask them to consider our draft recommendation online. Council can then ask for a case presentation at a subsequent meeting.

We are considering the Department of Health’s response and will decide if any changes are required to our draft recommendation. I hope to be able to do so next week.

I appreciate this is taking longer than usual which is due to the complexity of the evidence submitted. Please be assured we are working to resolve our investigation.

I hope this clarifies the situation to date.

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5 June 2014 – Email from ASA to Forest (SC)

I am writing to update you on the progress of our investigation. As you will be aware, we contacted an expert to consider the evidence submitted by the Department of Health, which they responded to in detail. It was then necessary to ask our expert to comment on their response. Their comments were received yesterday, however I have had to go back to them on a point of clarity. I hope to hear back from him soon. I hope to be able to provide a more definitive update once we have considered our experts replies in detail.

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10 June 2014 – Email from ASA to Forest (SC)

Please find attached our revised draft recommendation. Because we have made only minimal changes we will not be inviting further comments. We will inform you of any further changes or the result of the ASA Council’s decision in due course.

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10 June 2014 – Letter from ASA to Forest (AH)
+ Draft recommendation #3 (Forest complaint remains upheld)

We have made minimal amendments to our draft recommendation. Because we do not consider our changes to materially affect our recommendation we will not be inviting further comments.

As you can see from the attached we are recommending that your complaint remains upheld. The report is a draft recommendation and the decision and wording will rest entirely with the Council, who may see things differently.

The advertiser and Clearcast, the clearance body for TV advertising, will also receive a copy of the draft recommendation today. We shall write to you again to tell you the Council’s decision and the publication date for the final report. Please treat the draft recommendation as confidential until the final report is published.

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25 June 2014 – Email from ASA to Forest (SC)

The ASA Council considered our draft recommendation over the past week. Due to comments they have made, it has been decided to present the case to them at their next face-to-face meeting on July 18. I should have the outcome of that meeting shortly afterwards.

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19 July 2014 – Email from ASA to Forest (AH)

Please find attached the outcome of the ASA Council’s consideration of your complaint. You will note that the Council has not upheld your complaint. The attached report will be published on the ASA’s website on 30 July.

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19 July 2014 – Letter from ASA to Forest (AH)
+ Final adjudication (Forest complaint not upheld)

The ASA Council has now adjudicated on your complaint and disagreed with our recommendation that the ad breached the Code. You will see from the attached final adjudication that the Council decided that the ad had not breached the Code.

The attached report will be published on the ASA website, www.asa.org.uk, on Wednesday 30 July and we ask you to treat it as confidential until then. It will be made available to journalists, under embargo, from the Monday before publication. The advertiser and Clearcast, the clearance body for TV advertising will also receive a copy of the adjudication today.

We realise this decision will disappoint you, but thank you nonetheless for taking the trouble to raise the matter with us.

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Sound of hollow laughter all round.

Update: We are submitting a formal appeal to the Independent Reviewer of ASA Adjudications. Watch this space.

Previous posts: Spot the difference – how the Advertising Standards Authority changed its tune, and At last, the ASA verdict on Forest complaint about DH "mutation" ad.

Spot the difference: how the Advertising Standards Authority changed its tune

Further to my previous post, Marketing magazine has covered the story here:

Forest slams ASA decision on DoH smoking ad claims

There are so many angles to this dispute I don't know where to start, but it's interesting to note the ASA's extraordinary U-turn between June and July.

On June 10, when the ASA executive upheld (for the third time) our complaint against the Department of Health "mutation" ad, they wrote:

The ASA acknowledged that the DH had provided a range of peer-reviewed papers. We took expert advice. We noted that the papers supported higher mutation rates among smokers versus non-smokers and acknowledged the DH’s assertion that this was evidenced by the linear dose-response relationship between cigarettes smoked.

We noted that not all the papers presented discussed smoking [my emphasis] and the linear dose-response relationship used to calculate mutation accumulation. However, we were satisfied that the papers suggested that there may be a linear dose-response relationship between mutations and cigarette smoking. We considered the selection of mutation rates derived from the whole genome sequencing data and noted that they were estimated mutation rates per cigarettes smoked.

We noted that only one of the papers [my emphasis] provided formed the basis of the claim in the ad, that “every 15 cigarettes you smoke will cause a mutation”. That paper was based on a sample derived from the bone marrow metastasis of one patient [my emphasis] with small cell lung cancer.

The patient’s smoking history was not recorded [my emphasis], but we understood that the sample had histological features associated with tobacco smoking and therefore it was possible to identify mutations that arose specifically from smoking. The claim was not appraised in the detailed results section of the paper and appeared only in the discussion part, therefore it was not possible to establish how the figure of 15 cigarettes had been calculated [my emphasis].

We also noted that the claim was prefixed with several caveats [my emphasis], “On average, lung cancer develops after 50 pack-years of smoking ... If the majority of mutations derive from the mélange of mutagens present in tobacco smoke, the clone of cells that ultimately becomes cancerous would acquire, over its lifetime, an average of one mutation for every 15 cigarettes smoked.”

We considered that the paper, and the selection of estimated mutation rates from whole genome sequencing, indicated that there was an average of one mutation per 15 cigarettes smoked but that this figure was open to variance [my emphasis].

Because the ad made a definitive claim that a mutation would arise from every 15 cigarettes smoked, which was not supported by the evidence [my emphasis], we concluded that the ad was misleading.

The ad breached BCAP Code rules 3.1 (Misleading advertising) and 3.9 (Substantiation).

Action
The ad must not appear again in its current form. We told the Department of Health that in the absence of sufficient evidence [my emphasis] they should not make definitive claims for the number of cigarettes that would cause a mutation in future.

Somehow, five weeks later, the ASA Council took a very different position. Rejecting our complaint – and their own executive's recommendation – their assessment now read:

The ASA acknowledged that the DH had provided a range of peer-reviewed papers. We took expert advice. We noted that the papers supported higher mutation rates among smokers versus non-smokers.

We noted that not all the papers presented discussed smoking and the linear dose-response relationship used to calculate mutation accumulation. However, we were satisfied that the papers indicated that a broadly linear dose-response relationship between mutations and cigarette smoking existed. We considered the selection of estimated mutation rates per cigarette smoked derived from the whole genome sequencing data in the papers.

One of the papers provided supported the basis of the claim in the ad, that "every 15 cigarettes you smoke will cause a mutation". That paper was based on a sample derived from the bone marrow metastasis of one patient; we understood that the sample had histological features associated with tobacco smoking and therefore it was possible to identify mutations that arose specifically from smoking.

Additional data supplied by the DH [my emphasis] included a selection of estimated mutation rates from whole genome sequencing of 21 subjects. It showed that the majority of those cancerous cells sequenced had more than one mutation per 15 cigarettes smoked, and that only a small number had a mutation rate per cigarette smoked that was less than the number claimed. The data suggested that the average number of mutations per cigarette smoked was significantly higher than indicated by the 15 cigarette figure in the ad and we therefore considered that the DH had presented a conservative figure which ensured the claim was not exaggerated.

Because the ad made a conservative claim, which was supported by the evidence, we concluded that the ad was substantiated and unlikely to mislead.

We investigated the ad under BCAP Code rules 3.1 (Misleading advertising) and 3.9 (Substantiation) but did not find it in breach.

Action
No further action necessary.

The crucial words here are 'Additional data supplied by the DH'.

When did the DH supply this 'additional data'? Was it before or after the ASA executive submitted its (third) draft recommendation upholding our complaint? Or was it earlier?

The DH was given every opportunity to challenge our complaint. Officials even had a meeting with the ASA executive.

Yet the DH clearly failed to convince the ASA officials because as late as June 2014, when the executive drafted its third recommendation, the ASA was still upholding our complaint.

Something – I don't know what – happened between then and July 18 when the ASA Council met to consider the recommendation.

If new evidence was produced why wasn't Forest made aware of it so we could challenge it?

More to the point, why didn't the DH produce this evidence at the very beginning of this farcical process?

Perhaps, like me, you're beginning to think the evidence didn't exist when the ad was commissioned and broadcast and the DH has spent a large part of the last 18 months trying to find evidence to support the claim that 'Every 15 cigarettes you smoke will cause a mutation'.

Whatever the outcome of our complaint, the DH and their allies on the ASA Council has come out of this very, very badly.

The people I feel sorry for are the ASA staff whose recommendation that our complaint be upheld was rejected.

To have all that hard work undone by a bunch of part-time quangocrats must be incredibly frustrating. Humiliating, even.

Writing to Forest on July 19, the ASA executive wrote:

We realise this decision will disappoint you, but thank you nonetheless for taking the trouble to raise the matter with us.

Yes, the decision did disappoint us but, let's be honest, it was no more than we expected.

This is Britain 2014. No-one's allowed to challenge the Department of Health and win.

And that's a fact.

See also: Why the eleventh hour ASA U-turn? (Liberal Vision)

Update on Wednesday, July 30, 2014 at 16:25 by Simon Clark

By coincidence the ASA today published an adjudication on another tobacco-related case.

This time it upheld a complaint by Cancer Research UK and ASH, among others, against the tobacco company JTI.

Full story, including JTI's response, here:

JTI to appeal ASA ruling on 'misleading' plain packs ad (The Grocer).

How odd that a complaint about an ad published in April 2013 should be published one week before the closing date for the Government's final consultation on plain packaging.

Spooky.

At last, the ASA verdict on Forest complaint about DH "mutation" ad

The Advertising Standards Authority has finally adjudicated on Forest's complaint about a Department of Health advertisement that claimed “Every 15 cigarettes you smoke will cause a mutation".

It's only taken 18 months.

The DH's 'mutation health harms' campaign was launched on television on December 28, 2012. According to the voiceover:

“When you smoke the chemicals you inhale cause mutations in your body and mutations are how cancer starts. Every 15 cigarettes you smoke will cause a mutation. If you could see the damage you would stop.”

Angela Harbutt submitted Forest's complaint on January 14, 2013. It was based on two counts: misleading information and the omission of material information.

Since then the ASA has commissioned an independent expert to examine the evidence, given the DH every opportunity to challenge our complaint, and issued no fewer than THREE draft recommendations.

The first was sent to us in November 2013, the second in April 2014, the third in June.

Each time Forest's complaint was UPHELD and every time the DH was instructed to withdraw the advertisement.

Each recommendation however came with a request to treat it as confidential "until the final report is published". There were two reasons for this:

One, in its wisdom the ASA decided the DH could challenge not just the first recommendation (fair enough) but even the second.

Two, the third and final recommendation had to be considered by the ASA Council led by former Labour minister Lord Smith before the final adjudication could be released to the world.

The Council met on July 18 and made its decision but even then we were asked to keep it confidential until July 30 when it "will be published on the ASA website".

And guess what? After a tortuous investigation during which the ASA executive repeatedly recommended that our complaint be upheld, the ASA Council rejected it!

That's right, our complaint was NOT upheld.

Incredibly the ASA Council has ignored the recommendation of its own executive (which commissioned a report from an independent expert) and sided with the Department of Health.

You couldn't make it up.

Full correspondence to follow. In the meantime, here's Forest's response to this extraordinary turn of events:

NEWS RELEASE Embargoed July 30, 2014, 00:01hrs

ASA's TV ad verdict "inexplicable" says Forest

A consumer group has described as “inexplicable” a decision by the Advertising Standards Authority to reject a complaint about a television advertisement for the NHS smoke free campaign.

The ad, broadcast in January 2013, featured a man lighting a cigarette outside his house. A growth appeared on the cigarette that increased in size as he smoked. A voiceover stated:

“When you smoke the chemicals you inhale cause mutations in your body and mutations are how cancer starts. Every 15 cigarettes you smoke will cause a mutation. If you could see the damage you would stop.”

The advertisement generated 18 complaints to the Advertising Standards Authority including one from the smokers’ group Forest.

According to Forest the advertisement was misleading because it was based on a statement that was tentative not categorical. It also omitted material information. As a result it contravened the Advertising Code.

In the course of an 18-month investigation the ASA’s executive team recommended three times that Forest’s complaint be upheld and the advertisement withdrawn.

The first two recommendations were challenged by the Department of Health. Having considered the DH’s response, the ASA executive submitted to the ASA Council its final recommendation. For a third time it upheld Forest’s complaint.

Today [30th July] the ASA Council published its own verdict: complaint not upheld.

Simon Clark, director of Forest, said: “The decision is inexplicable. Not only have ASA Council members ignored the advice of their own executive, they have effectively rejected the report of an independent expert commissioned to advise the ASA on this complex issue.

“The Department of Health did everything it could to derail our complaint and were given every opportunity to do so. Despite this the ASA executive upheld our complaint three times. That speaks volumes.”

Clark added:

“We have requested an independent review of the Council’s adjudication because we are determined to challenge this baffling decision.

“The public has a right to be educated about the health risks of smoking but information must be based on incontrovertible evidence. This advertisement fell short of that and should be withdrawn.”

It will take a dedicated journalist to plough through all the correspondence, so don't expect to see this story in the mainstream media, but I hope you will agree it stinks.

Needless to say we have no intention of letting this rest. I'll keep you posted.

Coming up … ASA set to publish adjudication on Forest complaint

Well, the waiting is nearly over.

Eighteen months after Forest submitted a complaint about a Department of Health advertisement that stated “Every 15 cigarettes you smoke will cause a mutation", the Advertising Standards Authority is set to publish its long-awaited adjudication.

We've known the result for ten days but the ASA wanted to keep it under wraps until tomorrow, July 30.

Officially the adjudication is embargoed until one minute past midnight.

So check in later and all will be revealed.

Consultation countdown: 10 days to go

You have 10 days to respond to the Government's final consultation on plain packaging.

Following an announcement in April that the Government was 'minded" to introduce plain packaging, Forest invited you to write to David Cameron via our No, Prime Minister website.

Thousands of you have done so and we are very grateful for your support.

We have one final request. It is vital that you also register your opposition to plain packaging with the Department of Health.

We've created a special app that allows you to do so quickly and easily.

Click here.

Closing date for the consultation is Thursday August 7 but please do it now.

Note: if you have already written to the PM via the No, Prime Minister site simply untick the relevant box.

Mother on Sunday

You learn something new every day.

I knew my father smoked when he was a young man. It would have been unusual for him not to. In the Fifties, after all, 80 per cent of men were smokers.

He gave up around the time I was born but I don't think he was ever a heavy smoker.

At work for example it is said he would light a cigarette and after a couple of puffs he'd leave it smouldering in the ashtray on his desk.

My mother however never smoked. Or so I thought.

Today she told me she was indeed a smoker but gave up "when I left school".

News to me!

Plain packaging "gold plating" EU policy

Attention, eurosceptics.

One of Forest's arguments against plain packaging is that it's unnecessary because the EU's revised Tobacco Products Directive will do a very similar job.

From 2016, when the revised TPD is implemented, the health warning will cover 65 per cent of the front and back of the pack, leaving very little room for branding.

The relevant paragraph in our campaign letter, which thousands of you have been sending to the PM, reads:

Before pressing ahead with legislation I urge you to wait until government has studied the impact of the tobacco display ban, which will not be fully implemented until 2015, and the introduction of larger health warnings which are being introduced in 2016 as part of the EU's revised Tobacco Products Directive.

This morning the Regulatory Policy Committee published an analysis of the Government's impact assessment on plain packaging.

There are several references to the TPD including this admission:

As noted above, the preferred option is to go beyond the European Tobacco Products Directive and require standardised tobacco packaging of cigarettes and hand rolling tobacco. By going beyond minimum EU requirements, the Department is gold-plating the measure.

Think about that for a moment.

Our Conservative-led Coalition is currently "minded" to introduce a policy that not only goes "beyond minimum EU requirements" but is "gold-plating the measure".

You can download the RPC analysis here.

You'll see that the RPC has given the impact assessment on plain packaging an amber rating.

Green rated IAs are considered ‘fit for purpose’. Red IAs are ‘not fit for purpose.

Amber IAs are ‘fit for purpose’ on condition that changes are made to the IA. In this instance, for example, the RPC wants a "fuller description of EU Tobacco Products Directive … This would allow readers to understand better where the proposed measure goes beyond the Directive".

Strange, isn't it, that this wasn't made clear in the original IA? Perhaps the Government didn't want people to know.

Now you do. Spread the word.

Plain packaging could have unintended consequences, says branding expert

There was an interesting discussion about plain packaging on RTE Radio 1 yesterday.

It featured Kathleen O'Meara of the Irish Cancer Society; Sandy Dunlop, an Irish-based "branding expert"; and Forest's John Mallon.

John did a great job but he and O'Meara said pretty much what you would expect them to say, so it was Dunlop's contribution that particularly caught my ear.

He began by agreeing with Ireland's former health minister James Reilly who was quoted saying the cigarette box is the "last billboard" for cigarette companies.

After a brief debate about the importance of Marlboro Man, Dunlop suddenly changed tack and warned of the negative consequences of plain packaging. It's worth quoting in full:

Another issue is if you go too hard on an area you could make the category cool because of its prohibition. An example would be drinking in the States when they had Prohibition.

You gotta ask why do people do things. One of the reasons people smoke is because it's enjoyable to them. For many people it's community and friendship and if you push and push and push you might introduce the category as being exciting and adventurous.

So you can do something for one reason and have an unintended consequence that you didn't predict. Drinking in the States in the time of Prohibition would not only have been enjoyable, it could have been exciting and adventurous which is why people did these things.

Asked by the steadfastly impartial stand-in presenter Keelin Shanley, "Is there any evidence that getting rid of the branding will work?", Dunlop replied:

I don't really know what the evidence is. What I would do is why not use the techniques and marketing and some of the amazing insights from neuroscience and behavioural economics to make smoking uncool and make other behaviours cool by focussing on health?

I think that in Ireland it's actually happened around drink driving where the younger generation [accept] it is not cool to drink and drive.

I think there's other more positive ways. If you push and push and push against something you start having unintended negative consequences that you didn't predict and it may be that if all this does is make smuggling easier you're having a negative effect that you didn't intend, so I would put the energy into how branding works, and understanding that, to make other activities cool, make health cool, and the consequences of that could be smoking becomes less and less cool.

So there we have it – a "branding expert" spells out one of the negative consequences of plain packaging and suggests a better policy might be to "make health cool".

I'm not sure I would give the state that responsibility but the principle – accentuate the positive – makes sense.

Click here for the full discussion.