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 private individual have to hand, would have conducted a more thorough investigation than would appear to be the case. I am not in the habit of making complaints to the ASA so perhaps I did 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 the case 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 in that region, with the aim of reducing smoking rates. Advocacy for plain packaging was one of a range of Smokefree South West programmes and campaigns designed to reduce tobacco use. In this context the poster was advocacy of an opinion 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 be interpreted that way. The poster was unlikely to mislead consumers about Smokefree South West'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 codes 3.1 (misleading) 3.7 (substantiation) and 3.13 (suggesting that their claims are universally accepted). I do not know the CAP code inside out so please do consider what other codes may have been broken. I would also suggest that the original defence of Smokefree South Wests 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 about Smokefree South West's advocacy of plain packaging for cigarettes is misplaced. That not only would the public seeing the poster not know this was advocacy but also the prominent promotion of the Plain Packs Protect campaign in the South West by a wide number of National 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 consumer by omitting material information including who was running the campaign. Again, please do consider 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 or have any queries, please contact me by reply. Yours faithfully Richard Puddlecote

Challenge 1 I advance that advocacy groups must be subject to the same rules as other organisations and, as such, should not make statements that are misleading (CAP code 3.1), cannot be substantiated (CAP code 3.7), and suggest their claims are universally accepted (CAP code 3.13) which they are not. If I am wrong regarding advocacy groups, please explain where 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 being misleading or making claims which lack substantiation (APPENDIX A). The posters in question make the absolute claim that plain packaging of tobacco protects children. It could not be clearer - the posters state Support plain packaging and protect our children This assertion is a) misleading b) cannot be substantiated, and c) is not universally accepted. There is a significant division of informed and scientific opinion on whether plain packaging 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 considered alongside 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, an amendment was proposed to include plain packaging in the legislation. In response to the proposal, Gillian Merron, Minister of State for Public Health noted that the government had chosen 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 mislead customers about the relative safety of different tobacco products, that too is very limited. No studies have been undertaken to show that plain packaging of tobacco would cut smoking uptake among young people or enable those who want to quit to do so. http://www.publications.parliament.uk/pa/cm200809/cmpublic/health/090625/pm/90625s09.h tm 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 do this, we need to understand whether there is evidence to demonstrate that plain packaging of tobacco products would have an additional benefit, over and above existing 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 whether there is evidence is indication enough that the government does not agree that incontrovertible evidence exists. As such, how can Smokefree South Wests poster claims that plain packs will protect children be substantiated?

1 (c) A recently published peer-reviewed report from the Democracy Institute The Plain Truth Does Packaging influence smoking (March 2012) concluded after extensive analysis of every major research study on plain packaging that is within the public domain that: None of (the research studies examined) provides compelling evidence that packaging affects smoking behaviour or that plain packaging will reduce smoking initiation and consumption (page 14) The Plain Truth: Does Packaging Influence Smoking (ISBN 978-0-615-61341-3) contains the complete analysis. 1(d) Smokefree South West The defence for Smokefree South West asserted that ... the poster was advocacy of an opinion 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 be interpreted that way. The poster was unlikely to mislead consumers about Smokefree South West's advocacy of plain packaging for cigarettes Nowhere on the poster does it make it clear that the statement Support Plain Packs and protect our children is an opinion which is widely disputed. It also does not mention Smokefree South West at all. An advertising campaign which is anonymous, as far as the majority of the public are concerned, 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) lacking substantiation, and/or (c) fall foul of suggesting that their claims are universally accepted where a significant division of informed or scientific opinion exists? I think it would find against the campaign especially if the government had stated that no evidence exists that hanging will lower crime rates or if government was currently looking to see whether hanging 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 honestly states that plain packaging could reduce youth smoking and decrease youth uptake - not that it will. I fail to see how it can admit on its website (see below) that plain packaging could protect children, but assert on the poster that it will. Again, some qualification should be included or else the posters give a misleading message. [1] http://www.smokefreesouthwest.org.uk/what-we-do/supporting-the-plain-packaging-of-alltobacco.html

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 packaging was one of a range of Smokefree South West programmes and campaigns designed to reduce tobacco use. In this context the poster was advocacy of an opinion 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 be interpreted that way. The poster was unlikely to mislead consumers about Smokefree South West's advocacy of plain packaging for cigarettes I venture that the defence that advocacy for plain packaging is one of a range of Smokefree South West programmes and campaigns- and from that standpoint that the poster is unlikely 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 posters are being run by Smokefree South West. The argument therefore that The poster was unlikely to mislead consumers about Smokefree South West's advocacy of plain packaging for 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 would be 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. Nowhere does this state that the posters are funded by, commissioned, or run by Smoke Free South West. There is clearly a large amount of space available on the poster site to make Smokefree South Wests connection with the campaign abundantly clear, yet this is omitted.

2(b) The situation is made considerably worse by the fact that the Plain Packs Protect campaign has already been (and continues to be) widely promoted throughout the South West 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 the NHS service in Devon is accepted as a lobbying group by the public? And that NHS Devon would be seen to be employing advocacy instead of implying that this opinion was universally accepted or that there were no contrary opinions? In fact, NHS Devon headlines their website article with the unequivocal statement that Plain Packaging of Tobacco Will Protect Children. Anyone reading this and seeing the posters will form an opinion that there is 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 and online, where NHS bodies are heavily identifying themselves with the campaign. NHS Devon: On NHS Devons Twitter feed, sandwiched between health advice on Chlamydia and an educational course in Honiton, is a tweet Every year children are tempted to try smoking. Sign up to show your support for plain packs at plainpacksprotect.co.uk

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

Other NHS bodies - not remotely recognised by the public as political lobbyists - also ally themselves to the campaign on their websites. NHS Dorset website

NHS Bournemouth and Poole Web site

NHS Bristol

In light of this additional information I fail to see how the defence can be that The poster was unlikely to mislead consumers about Smokefree South West's advocacy of plain packaging for cigarettes since Smokefree South West is not the campaign vehicle identified on the poster where there is ample space to do so. One has to question why the defence that Smokefree South West posters are acceptable on the grounds that Smokefree South West is already known for its advocacy - despite not mentioning its involvement on the poster itself - is valid. Especially since NHS bodies are actively promoting the campaign, without qualification of the claims presented and without acknowledgement that there is a substantial difference of opinion as to whether an untried and contentious tobacco control measure will have any effect whatsoever on smoking prevalence amongst children or young people.

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, "THE MURDER RATE HAS DOUBLED" on frame 2 and "SIGN THE HM Government Directgov EPETITION" 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. We therefore 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 not appear again in its form. We told Restore Justice to ensure they held evidence to prove objective claims that were capable of substantiation in future. Save Berkeley Vale Campaign: (April 2011) A leaflet for the campaign group Save Berkeley 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 wind turbines. Text on the photo stated "View from Wick Lane". ASA Finding: ... we noted that our experts photomontage had shown a number of discrepancies in the SBV photomontage, which consequently gave an exaggerated impression of the appearance of the turbines on the land. We therefore concluded that the leaflet gave a misleading impression of the visual impact that the proposed turbines would have on the landscape. The leaflet breached CAP Code (Edition 12) rules 3.1 (Misleading advertising) 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 the impact the wind farm turbines would have on the landscape. Animal abuse Injustice and Abuse Society Limited: A national press ad for Animal Aid included a photograph labelled UNDERCOVER VIDEO, of a man as he appeared to stamp on a pig while holding an electric prod. The ad stated ACT NOW TO STOP THIS BRUTALITY! A sow lies thrashing and screaming on the killing room floor, in agony from the electric shock that is meant to stun her humanely, but doesnt. [...] British law demands that animals be humanely killed - what we saw showed that slaughterhouses routinely ignore the law and brutalise animals. And they get away with it, because there is no effective monitoring 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 objective evidence of the fact that breaches were occurring in all or the majority of slaughterhouses on a routine basis or that monitoring systems were generally ineffective. We considered that the claim "slaughterhouses routinely ignore the law and brutalise animals" was likely to exaggerate the prevalence of on-going animal abuse in slaughterhouses and concluded the ad was likely to mislead. On this point, the ad breached CAP Code clauses 3.1 (Substantiation) and 7.1 (Truthfulness).