Following a recent Independent Review, the ASA Council has reversed a decision against Oak Furniture Land concerning claims that its products contain ‘no veneer’ and are made of ‘100% solid hardwood’. However, justice delayed is justice denied, and it’s worrying that it has taken so long for common sense to prevail. It also cost Oak Furniture Land a substantial amount of time and money resolving a complaint that barely merited investigation under the ASA’s prioritisation principles.

Oak Furniture Land submitted a very thorough response to the original complaint, so there was no element of the “contributory negligence” by an advertiser who responds in haste and must then repent at leisure on receipt of an adverse adjudication.

There is also a concern that the ASA’s criticisms about one plank of Oak Furniture Land’s response, being market research data, may have been allowed to over shadow simple common sense, as well as the weight of the rest of the evidence. This evidence was ultimately found to be compelling but only after a lengthy delay caused by the Independent Review process.

The original adjudication

On 19 October 2016, the ASA upheld a solitary complaint challenging Oak Furniture Land’s advertising. In doing so, they prevented Oak Furniture Land from stating or implying that its products had ‘no veneer’ or were made from ‘solid hardwood’ if its products were manufactured using an ‘oak-wrap’ technique. Lewis Silkin, acting on behalf of Oak Furniture Land, had argued that a true veneer involves using a thin piece of superior wood around an inferior core of chipboard or MDF to save money and/or weight. The ‘oak-wrap’ technique, on the other hand, involves using a relatively thin sheet of oak to surround material of the same quality as the outer wrap (being several lengths of solid oak fixed together to form the legs of certain dining tables), and is used for aesthetic and practical purposes.

The original decision damaged Oak Furniture Land’s brand by chipping away at its customers’ trust in its products and undermining its “no veneer in ‘ere” strapline - the heartbeat of its marketing strategy. Despite Oak Furniture Land’s protestations, including representations to the ASA Council alongside the Executive’s Draft Recommendation, the ASA upheld the complaint, albeit only on a majority vote.

Oak Furniture Land was understandably “baffled and surprised” by the adjudication and “vigorously” stood by its claims. Holding firm, and because Jason Bannister (MD & founder of Oak Furniture Land) was adamant that the ASA had “misinterpreted age-old definitions of firstly, what is classed as solid and secondly, what is classed as a veneer”, Oak Furniture Land submitted a request to the Independent Reviewer for the ASA Council to reconsider the decision. After months of correspondence with the Independent Reviewer, the ASA Council reconsidered the matter and concluded it should reverse its decision, some 10 months after the original decision (and 15 months since that solitary complaint was made).

‘No veneer’ and ‘100% solid hardwood’ claims

Following the Independent Review process, the ASA Council changed its original view and sided with Oak Furniture Land. It concluded that ‘veneer’ had a “more common meaning to the average consumer" and would be considered to be "an outer layer of wood that covered an inner base material such as MDF or plywood”.
 
The ASA also moved away from their original, more literal, approach to the meaning of ‘solid hardwood’. Whilst the ASA noted that some consumers would see the “numerous small segments of wood to be inconsistent with the claim ‘100% solid hardwood’ and ‘solid hardwood’”, it held that the everyday meaning of ‘solid hardwood’ signifies the absence of cheaper material within the construction.

The ASA also acknowledged that the ‘oak-wrap’ technique was only used on the legs of Oak Furniture Land’s dining tables (accounting for 2.77% of its total stock) and decided that the claims “no veneer in ‘ere” and “100% solid hardwood” were “unlikely to mislead the average consumer into taking a transactional decision that they otherwise would not have taken.”

The ASA’s rare change of tune

The ASA’s complete volte-face is highly unusual and one which goes against the grain. Unfortunately, it has also come at a considerable cost to Oak Furniture Land, who attempted to seek an injunction to prevent the publication of the original ruling pending the outcome of the Independent Review, and a judicial review of the decision not to grant such a delay. Although it failed in those attempts, it has after great lengths succeeded in convincing the ASA to see the wood from the trees.

The ASA’s original ruling also highlighted the literal approach the ASA sometimes takes to advertising regulation. However, advertisers will be reassured by the knowledge that the revised ruling fell in line with Jason Bannister’s hope (in response to the original ruling) that “common sense will prevail", and fortunately (on this occasion) it has.

Is this the season for root and branch reform?

In spring this year, the ASA published Dame Janet Paraskeva’s Independent Audit of the ASA’s Commitment to Good Regulation. Fortunately, in this electronic age, publication did not entail the destruction of a large number of trees, because in truth, Dame Janet’s report was not accompanied by much fanfare and does not seem to have provoked much comment.
 
Perhaps that is because she seems largely uncritical of the ASA; and with good reason. The one aspect of the ASA’s regime that does seem to have generated some substantive ideas for reform is the Independent Review system.
 
The audit suggests clarifying that there are 3 possible grounds for complaint: new evidence; a substantial flaw in the process; or a substantial flaw in the ASA Council’s decision. It also suggests that, in order to preserve the ‘independence’ of the ‘Independent Review’, the chairs of the ASA and the Advertising Standards Board of Finance (the body that controls the funding of the ASA) should no longer act as assessors assisting the Independent Reviewer and that the ASA should publish an annual review of its Independent Reviews.
 
More interesting is the suggestion that the ASA should conduct a review of good practice of the independent review and appeal processes used by other UK regulators and by advertising regulators in other countries, and consider improvements it might make. Elsewhere in the report she states that the business representatives that she interviewed bemoaned the absence of an opportunity to make oral submissions.
 
When the ASA conducted a procedural review a few years ago, Lewis Silkin proposed a system that borrowed some of the best features of the procedures used by the National Advertising Division of the Better Business Bureau in the United States of America, known as the NAD. Unfortunately, our views did not find favour.
 
Since then, we have also had the opportunity to experience the Dutch Advertising Self-Regulatory system, collaborating with our colleagues from the Global Advertising Lawyers Alliance in The Netherlands to bring a successful complaint for Garmin against advertising by TomTom. That system includes an oral hearing, giving both parties the opportunity to state their case and answer questions direct with the adjudicating panel. The result was a relatively quick process resulting in a robust decision.
 
Finally, greater clarity is needed around the circumstances when the ASA will delay publication of an adjudication pending Independent Review, and the criteria to be applied when the ASA makes that assessment. Should that decision be left to the Chief Executive of the ASA, or should it be made by someone independent?
 
So, perhaps it’s time for the ASA to turn over a new leaf?