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Advertising Standards Authority Complaint Reference: A12-189955

(Smokefree South West)

Dear Sirs

Please treat this as an appeal to the ASA judgement referenced above.

I would have hoped that an organisation, with far more resources than I as a privateindividual have to hand, would have conducted a more thorough investigation than wouldappear to be the case. I am not in the habit of making complaints to the ASA so perhaps Idid not present my case as fully as I needed to. I hope to address that here.

I would please ask therefore that the Independent Reviewer of ASA Adjudications review thecase above and take into account the additional information that I have provided

The ASA opinion was that:

Smokefree South West is an organisation, funded by all 14 Primary Care Trusts inthat region, with the aim of reducing smoking rates. Advocacy for plain packagingwas one of a range of Smokefree South West programmes and campaigns designedto reduce tobacco use. In this context the poster was advocacy of an opinion in anongoing public-health debate. It was not implying that this opinion was universallyaccepted or that there were no contrary opinions, and was unlikely to be interpretedthat way. The poster was unlikely to mislead consumers about Smokefree SouthWest's advocacy of plain packaging for cigarettes

I wish to challenge this conclusion on the following grounds.

Challenge 1: That Smokefree South West does fall foul of any of the following CAP codes3.1 (misleading) 3.7 (substantiation) and 3.13 (suggesting that their claims are universallyaccepted). I do not know the CAP code inside out so please do consider what other codesmay have been broken. I would also suggest that the original defence of Smokefree SouthWests poster assertions be re-considered in light of information provided in challenge 2.

Challenge 2: That the claim The poster was unlikely to mislead consumers aboutSmokefree South West's advocacy of plain packaging for cigarettesis misplaced. That notonly would the public seeing the poster not know this was advocacy but also the prominentpromotion of the Plain Packs Protect campaign in the South West by a wide number ofNational Health Service organisations would lead those seeing the posters to believe this

was fact, not advocacy. I believe this to be (3.1) misleading, (3.3) misleading the consumerby omitting material information including who was running the campaign. Again, please doconsider what other codes may have been broken of which I may be unaware.

Supporting evidence for both these challenges is below. If you require further clarification orhave any queries, please contact me by reply.

Yours faithfully

Richard Puddlecote

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Challenge 1

I advance that advocacy groups must be subject to the same rules as other organisationsand, as such, should not make statements that are misleading (CAP code 3.1), cannot besubstantiated (CAP code 3.7), and suggest their claims are universally accepted (CAPcode 3.13) which they are not. If I am wrong regarding advocacy groups, please explainwhere in the CAP code advocacy groups are exempted from the above codes. Indeed,advocacy groups have routinely had their advertisements banned by the ASA for beingmisleading or making claims which lack substantiation (APPENDIX A).

The posters in question make the absolute claim that plain packaging of tobacco protectschildren. It could not be clearer - the posters state Support plain packaging and protect ourchildren

This assertion is a) misleading b) cannot be substantiated, and c) is not universallyaccepted. There is a significant division of informed and scientific opinion on whether plainpackaging of tobacco will protect children and the articles and studies conducted to date do

not constitute substantiation of the claim.

In support of this, I submit the following additional information which should be consideredalongside the points made in my original submission to the ASA:

1 a) Parliament

During the parliamentary debate over the Health Bill banning tobacco displays in 2009, anamendment was proposed to include plain packaging in the legislation. In response to theproposal, Gillian Merron, Minister of State for Public Health noted that the government hadchosen not to proceed because of the lack of convincing evidence. Specifically, she said:

While there is also evidence to suggest that branding on packs may misleadcustomers about the relative safety of different tobacco products, that too is verylimited. No studies have been undertaken to show that plain packaging oftobacco would cut smoking uptake among young people or enable those whowant to quit to do so.

http://www.publications.parliament.uk/pa/cm200809/cmpublic/health/090625/pm/90625s09.htm

1 (b) Parliament

In December 2011, the current Secretary of State for Health (Andrew Lansley) stated:

The government wants to make it easier for people to make healthy choices. To dothis, we need to understand whether there is evidence to demonstrate that plainpackaging of tobacco products would have an additional benefit, over and aboveexisting tobacco control initiatives

http://www.parliament.uk/documents/commons-vote-office/19-Health-TobaccoControl.pdf

Given that the Secretary for State for Health has stated the need to understand whetherthere is evidence is indication enough that the government does not agree thatincontrovertible evidence exists. As such, how can Smokefree South Wests poster claimsthat plain packs will protect children be substantiated?

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1 (c) A recently published peer-reviewed report from the Democracy Institute The PlainTruth Does Packaging influence smoking (March 2012) concluded after extensiveanalysis of every major research study on plain packaging that is within the public domainthat:

None of (the research studies examined) provides compelling evidence thatpackaging affects smoking behaviour or that plain packaging will reduce smokinginitiation and consumption (page 14)

The Plain Truth: Does Packaging Influence Smoking (ISBN 978-0-615-61341-3) contains thecomplete analysis.

1(d) Smokefree South West

The defence for Smokefree South West asserted that ... the poster was advocacy of anopinion in an ongoing public-health debate. It was not implying that this opinion was

universally accepted or that there were no contrary opinions, and was unlikely to beinterpreted that way. The poster was unlikely to mislead consumers about Smokefree SouthWest's advocacy of plain packaging for cigarettes

Nowhere on the poster does it make it clear that the statement Support Plain Packs andprotect our children is an opinion which is widely disputed. It also does not mentionSmokefree South West at all.

An advertising campaign which is anonymous, as far as the majority of the public areconcerned, should be making statements which make clear that their opinion is contested.The advertisements include no qualifying words such as may, possibly, or potentially.They merely state that by signing up to the website, the public will protect children.

If the Restore Justice Campaign boldly stated bring back hanging and lower crime rates,would that be acceptable? Or would the ASA rule that this was (a) misleading, (b) lackingsubstantiation, and/or (c) fall foul of suggesting that their claims are universally acceptedwhere a significant division of informed or scientific opinion exists? I think it would findagainst the campaign especially if the government had stated that no evidence exists thathanging will lower crime rates or if government was currently looking to see whetherhanging might reduce crime rates. (refer to APPENDIX A)

1(e) Smokefree South West

On its website page[1] dedicated to plain packaging, Smokefree South West more honestlystates that plain packaging could reduce youth smoking and decrease youth uptake - notthat it will. I fail to see how it can admit on its website (see below) that plain packagingcould protect children, but assert on the poster that it will. Again, some qualification shouldbe included or else the posters give a misleading message.

[1] http://www.smokefreesouthwest.org.uk/what-we-do/supporting-the-plain-packaging-of-all-

tobacco.html

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2. Challenge 2

The ASA adjudication states

Smokefree South West is an organisation, funded by all 14 Primary Care Trusts in

that region, with the aim of reducing smoking rates. Advocacy for plain packagingwas one of a range of Smokefree South West programmes and campaigns designedto reduce tobacco use. In this context the poster was advocacy of an opinion in anongoing public-health debate. It was not implying that this opinion was universallyaccepted or that there were no contrary opinions, and was unlikely to be interpretedthat way. The poster was unlikely to mislead consumers about Smokefree SouthWest's advocacy of plain packaging for cigarettes

I venture that the defence that advocacy for plain packaging is one of a range of SmokefreeSouth West programmes and campaigns- and from that standpoint that the poster isunlikely to mislead consumers about Smokefree South Wests advocacy of plain packaging- is flawed.

I refute that Smoke free South West has made it at all clear to the public that these postersare being run by Smokefree South West. The argument therefore that The poster wasunlikely to mislead consumers about Smokefree South West's advocacy of plain packagingfor cigarettes is irrelevant to the original complaints which I dispute in Challenge 1.

Please indicate how - from the posters in the South West (example below) - the public wouldbe able to deduce that these posters are being run by a renowned advocacy group.

2 (a) the posters are entirely attributable to the Plain Packs Protect campaign. Nowheredoes this state that the posters are funded by, commissioned, or run by Smoke Free SouthWest.

There is clearly a large amount of space available on the poster site to make SmokefreeSouth Wests connection with the campaign abundantly clear, yet this is omitted.

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2(b) The situation is made considerably worse by the fact that the Plain Packs Protectcampaign has already been (and continues to be) widely promoted throughout the SouthWest prominently by NHS organisations.

Here are just some examples from the South West region:

The NHS Devon web site is promoting the Plain Packs Protect campaign

(http://www.devonpct.nhs.uk/Smokefree_Devon_Alliance/Tobacco_control_campaigns.aspx )stating the same claim that plain packaging will protect children. Are we to assume that theNHS service in Devon is accepted as a lobbying group by the public? And that NHS Devonwould be seen to be employing advocacy instead of implying that this opinion wasuniversally accepted or that there were no contrary opinions? In fact, NHS Devon headlinestheir website article with the unequivocal statement that Plain Packaging of Tobacco WillProtect Children. Anyone reading this and seeing the posters will form an opinion that thereis no doubt, and that it is fact. NHS bodies are not seen as political advocates by the public.

The blurring of advocacy and statements of fact are compounded on social media andonline, where NHS bodies are heavily identifying themselves with the campaign.

NHS Devon: On NHS Devons Twitter feed, sandwiched between health advice onChlamydia and an educational course in Honiton, is a tweet Every year children aretempted to try smoking. Sign up to show your support for plain packs atplainpacksprotect.co.uk

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Similarly, NHS Torbay Care Trust tweet, between news on teenage conception rates andadvice on exercise, that We support @plainpacks Protect young people from smokingand watch the latest plain packs video. Again, this appears as an unqualified statement offact.

Other NHS bodies - not remotely recognised by the public as political lobbyists - also ally

themselves to the campaign on their websites.

NHS Dorset website

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NHS Bournemouth and Poole Web site

NHS Bristol

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In light of this additional information I fail to see how the defence can be that The posterwas unlikely to mislead consumers about Smokefree South West's advocacy of plainpackaging for cigarettessince Smokefree South West is not the campaign vehicle identifiedon the poster where there is ample space to do so.

One has to question why the defence that Smokefree South West posters are acceptable onthe grounds that Smokefree South West is already known for its advocacy - despite notmentioning its involvement on the poster itself - is valid. Especially since NHS bodies areactively promoting the campaign, without qualification of the claims presented and withoutacknowledgement that there is a substantial difference of opinion as to whether an untriedand contentious tobacco control measure will have any effect whatsoever on smokingprevalence amongst children or young people.

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APPENDIX A

Examples where advocacy groups claims have been disputed

RESTORE JUSTICE: An online banner ad for a campaign group on a third-party website,

seen on 17 August 2011, stated "IN 1964 MPS ABOLISHED HANGING" on frame 1, "THEMURDER RATE HAS DOUBLED" on frame 2 and "SIGN THE HM Government Directgov E-PETITION" on frame 3. All frames displayed the words "RESTORE JUSTICE".

ASA findings: Restore Justice had failed to justify the claim in the context used in the ad. Wetherefore concluded that the ad was misleading. On this point the ad breached CAP Code(Edition 12) rules 3.1 (Misleading advertising) and 3.7 (Substantiation). The ad must notappear again in its form. We told Restore Justice to ensure they held evidence to proveobjective claims that were capable of substantiation in future.

Save Berkeley Vale Campaign: (April 2011) A leaflet for the campaign group SaveBerkeley Vale, stated "PLANNING APPLICATION [...] for Four 120m Wind Turbines at

Standle Farm, Stinchcombe [...] COMMENTS / OBJECTIONS SHOULD BE MADE NOW ".The leaflet included a mock up photo, which featured a country landscape with four windturbines. Text on the photo stated "View from Wick Lane".

ASA Finding: ... we noted that our experts photomontage had shown a number ofdiscrepancies in the SBV photomontage, which consequently gave an exaggeratedimpression of the appearance of the turbines on the land. We therefore concluded that theleaflet gave a misleading impression of the visual impact that the proposed turbines wouldhave on the landscape. The leaflet breached CAP Code (Edition 12) rules 3.1 (Misleadingadvertising) and 3.7 (Substantiation). The leaflet must not appear again in its current form.We told Save Berkeley Vale to ensure that future photomontages more accurately reflect theimpact the wind farm turbines would have on the landscape.

Animal abuse Injustice and Abuse Society Limited: A national press ad for Animal Aidincluded a photograph labelled UNDERCOVER VIDEO, of a man as he appeared to stampon a pig while holding an electric prod. The ad stated ACT NOW TO STOP THISBRUTALITY! A sow lies thrashing and screaming on the killing room floor, in agony from theelectric shock that is meant to stun her humanely, but doesnt. [...] British law demands thatanimals be humanely killed - what we saw showed that slaughterhouses routinely ignore thelaw and brutalise animals. And they get away with it, because there is no effectivemonitoring system. We need CCTV in every abattoir to prevent this terror

ASA Finding: We considered that, whilst Animal Aid believed they had shown evidence of

malpractice in a small number of slaughterhouses, those instances were not objectiveevidence of the fact that breaches were occurring in all or the majority of slaughterhouses ona routine basis or that monitoring systems were generally ineffective. We considered that theclaim "slaughterhouses routinely ignore the law and brutalise animals" was likely toexaggerate the prevalence of on-going animal abuse in slaughterhouses and concluded thead was likely to mislead. On this point, the ad breached CAP Code clauses 3.1(Substantiation) and 7.1 (Truthfulness).