I’ve always been a fan of advertising. I am still word-perfect on jingles I first heard on the telly more than sixty years ago. I have some beautiful “Guinness is Good for You” postcards my Dad collected. I fondly remember those crudely-executed cinema ads for local restaurants where you could “relax in comfortable surroundings”. 

Mass advertising has been part of our lives for more than 150 years. It’s a form of communication which benefits consumers by making known a cornucopia of goods and services from breakfast cereals to mobile phones, from taxi services to locksmiths. It enables companies to expand and gain economies of scale, leading to lower prices. It supports other businesses such as newspapers, magazines, television, radio and websites. Nowadays, “native advertising” — sponsored content — enables many influencers and bloggers to make a tidy living. In the form of more conventional sponsorship, advertising enables sporting organisations, museums, charities and other worthy causes to monetise their appeal to a wider public.

It is bizarre how different standards apply in advertising to other forms of media representation

Considered objectively, “commercial speech” is no different from other forms of speech which push a political party’s agenda, unions’ advocacy of a four-day week, neighbours’ objections to a road scheme, or an academic epidemiologist’s case for yet another lockdown.   Essentially they are all trying to persuade us to “buy” something, using rhetoric, appeals to emotion and sometimes, sadly, economy with “their” truth.

Yet, as Nobel Prizewinning economist Ronald Coase pointed out years ago, somehow people accept that we should silence or severely restrict advertisers while giving a free pass to hucksters in other areas of life.  

This wasn’t always so. Until the mid-1950s UK advertising was for the most part unregulated, subject only to laws relating to fraud and defamation which also affect other forms of speech. Since then, though, more and more restrictions have been introduced. No longer can a man in a raincoat and trilby be alone with his Strand cigarette, or a golfer puff on a Hamlet cigar while Bach plays in the background.   

Smoking is an area where government restrictions directly forbid advertising outright. Medicines, alcohol and gambling are areas where the state severely restricts it, allegedly for our own — or maybe our children’s — good. And, as a result of our overweight Prime Minister’s recent brush with Covid death, it looks as though we are soon going to have a raft of new controls on the advertising of foods high in fat, sugar or salt.

If you think about it for a moment, it is bizarre how different standards apply in advertising to other forms of media representation. For example it is forbidden for alcohol adverts to show anybody under the age of 25, and for consumption of booze to be associated with sporting prowess. Yet no FA Cup giant-killing or Formula 1 victory is complete without champagne being freely necked. We do not see the government censoring Match of the Day to protect impressionable minds. 

Paternalistic interventions, aimed at reducing harms allegedly caused by legal economic activity, treat people as incapable of making their own choices. Advertising restrictions also reduce competition, sometimes entrenching the market dominance of existing producers, and discourage innovation. They can have knock-on effects on other activities as sponsorships are forbidden.  

Experience suggests that such restrictions often achieve rather little at considerable direct and indirect cost, but at least they will have been discussed in Parliament and our legislators have had to think about them for five minutes. However, many restrictions come from what is still ostensibly industry self-regulation by the Advertising Standards Authority (ASA), a private body which has morphed from a concern with ensuring that advertising is “legal, decent, honest and truthful” to a much wider and more problematic brief.

Today the ASA does not simply respond to 300 or so individual complaints about missing mail order parcels, dodgy pyramid schemes, or fantastical claims for hair restorers, as was the case each year in the 1960s. It handles over a hundred times as many complaints, and proactively seeks out breaches of its own ever more complicated rules.

Moreover, and worryingly, it now deliberately attempts to change public attitudes through forbidding representation of certain types of otherwise lawful behaviour which may give offence or cause psychological “harm” to some groups. The ASA’s interpretation of “offence” and “harm” appears to differ from the view taken by others concerned with regulatory issues, such as Ofcom and Clearcast, the trade-sponsored body which pre-screens television commercials.   

For instance in a recent case an advert for skimpy swimwear, shown in the middle of an episode of Love Island, was banned — as a result of one complaint – because it objectified women. As the ASA adjudication had it, they were not convinced that the women in the ad “were presented as empowered, confident young women. We considered that the cumulative effect of the scenes meant that overall, the products had been presented in an overly-sexualised way that invited viewers to view the women as sexual objects”.  This was contested by ITV, which pointed to similarities between the advertisement and the content of the programme — which features overly sexualised young women copping off with equally overly sexualised young men.

Creative expression which is permissible in television and films, YouTube, the theatre, books and newspapers is forbidden in advertising

This is just one minor example of how creative expression which is permissible in television and films, YouTube, the theatre, books and newspapers is forbidden in advertising. Detailed and extensive rules cover gender and racial representation, and the ASA has said it is going to tighten rules in light of Black Lives Matter. It also intends to devise new rules on  advertising related to climate change, and has even argued for controls on political manifestos.

The ASA imposes its own attitudes on advertisers and thus on what the public is allowed to hear and see. The ASA Council, which makes the important decisions on complaints, consists of highly educated individuals who are unrepresentative of the people who enjoy Love Island. Most are career administrators, drawn from quangos and charities, to whom regulation and control are second nature.    

Like all industries, advertising has its downside. Advertisers, and the businesses they promote, are made of Kant’s crooked timber. They can behave badly, and this may justify some regulation. But we have gone too far in controlling what can or cannot be said by those seeking to sell products, a vital function in the modern economy. We should reflect much more carefully on the often unthinking way in which we have acquiesced in restrictions on commercial speech while permitting similar material under the banner of entertainment or intellectual free speech. Freedom should be indivisible.