Today, 30 January 2014, the ASA chief executive reversed yesterday’s ruling. The short statement from the ASA press release is:
The ASA has withdrawn its formal ruling against a Cycling Scotland ad pending the outcome of an Independent Review. That followed a request from Cycling Scotland, in which it argued that the ASA’s criticism of the positioning of the cyclist was incorrect. The decision to withdraw was made by the ASA Chief Executive in light of a potential flaw in our ruling. Once the Independent Review process is complete we will publish our decision on our website.
Last summer, many people were appalled at the silliness – and worse – of the Scottish government’s attempt at promoting road safety: The Nice Way Code. Apparently the roads could be made safer by us all being nicer to one another. The campaign came in for lots of ridicule and even mockery; all summed up nicely by road.cc when the campaign was shut down:
The campaign was widely criticised for pandering to stereotypes, victim-blaming, having no clear goals and failing to engage or coordinate with other road safety bodies and initiatives.
Some people talked and tweeted about lodging complaints with the Advertising Standards Agency over some of their adverts.
Well, someone – five someones actually – did complain about a particular advertisement; one that showed a woman enjoying a bicycle ride along a road, with a car passing her at a safe distance, as the Highway Code guidance suggests to do!
The complaint was that she wasn’t wearing a helmet and she was shown cycling “in the middle of the road” — sounds a lot like people who read Top Gear presenter Jeremy Clarkson’s tweets!
The ASA upheld their complaint stating that:
However, under the Highway Code it was recommended as good practice for cyclists to wear helmets. Therefore, we considered that the scene featuring the cyclist on a road without wearing a helmet undermined the recommendations set out in the Highway Code.
Back in September 2009, I asked my MP, Sir George Young, about cycling and he wrote to me to say (my emphasis added),
“Encouraging cycling will be a major priority for a future Conservative Government. We would encourage a cultural change amongst officials to promote cycling…”
That cultural change seems not to have come to the Advertising Standards Authority yet!
Update: good to see the MPs who lead the All-Party Parliamentary Cycling Group writing a strongly worded letter to the ASA (copy is HERE).
Update: also in the news today, the driver who was charged with killing a person wearing HiViz and a cycle helmet whilst cycling in Southampton in 2012 was found not guilty – oddly, the Hampshire Police have asked that no one make any comment on the case!
The ASA ruling has come in for a lot of criticism by people who choose to cycle and generated a lot of comments on various blogs and news sites:
- As Easy As Riding a Bike: The Advertising Standards Authority – not fit for purpose
- Road Danger Reduction Forum: An idiotic judgement by the Advertising Standards Authority
- Beyond the Kerb: The Killing of The Horse
- The Ranty Highway Man: The Power of Dreams
- BikeBiz: Cyclists must ride in the gutter & wear helmets, ad watchdog rules
- Road.cc: ASA bans safety advert showing helmetless cyclist for being socially irresponsible +Video
- BBC: Cycling Scotland advert banned over ‘no helmet’
The ASA have ruled similarly in the past when a commercial filmed in Copenhagen was aired in the UK:
- Lo Fidelity Bicycle Club: Trading Standards
Even a petition at Change.org started in the morning garnered nearly 2000 signatures by late evening!
I am glad to see that Cycling Scotland will take up the ASA on its ruling, stating in a press release on its website:
“The advert was produced in close consultation with an experienced cycle training instructor who carefully considered the use of road positioning and safety attire required for cycling in the daytime…Cycling Scotland fully intends to pursue the ASA Council’s Independent Review process open to us.”
CONTRAST: NO HELMET IN MOVIE POSTER
A couple years ago, I saw an advert for the movie Larry Crowne on a bus shelter – it showed two people riding a moped without helmets – a clear breach of Highway Code rule 83.
I wrote to the ASA at the time and they told me on 15 July 2011,
We think that you’ve raised a valid point and have contacted the company to advise them that the ad is likely to be in breach of the Code.
Optimum Releasing have expressed their sincere apologies and acknowledged that it contravened The Highway Code. They also explained that the ad campaign had now come to an end and that they will shortly be removing all remaining posters.
In addition, we have received their assurance that their future ads will not show scenes that contravene The Highway Code. With this in mind, we are happy to close this file.
I then asked the ASA whether it would permit the same scene to be shown on DVD boxes when the movie came out later in that format. They replied,
“With regard to the DVD release, we have requested that the advertisers seek copy advice on ads promoting the DVD release to ensure its compliance. However, with regard to the DVD itself, the ASA does not regulate packaging and so the image in its original form may indeed form the front cover of the DVD.”
A lot of good that did: the advertisement for the download of the soundtrack on Amazon has a very similar picture!
ASA RESPONSE TO MY COMPLAINT
Today, I wrote to the ASA to complain about the Cycle Scotland ruling, too. I said in part,
Banning an advert for showing legal activity of cycling safely – away from drains, gutters and potholes – and legally – without a helmet – is just not on…I hereby ask that the ASA reverse its ruling and take a more enlightened approach to safety on the roads.
To their credit, Matt Wilson, their press officer replied promptly. He said, and I quote in full (with my emphasis added):
The ASA is responsible for ensuring UK ads stick to the rules which require that they don’t contain anything likely to be misleading, harmful or offensive. Further to this, the Advertising Codes place a particular emphasis on making sure that ads are socially responsible. This rule gives the ASA scope to apply the Codes, to ads, beyond what is required in law if we consider that an ad is depicting a behaviour or activity that is potentially harmful or irresponsible.
It’s important to note that our ruling applies to advertisers only and should not be read as general advice to the public. There are lots of things that are not permitted to be shown in adverts that are perfectly acceptable and legal in real life – for example it is considered irresponsible to show someone buying a repeat round of drinks in an alcohol ad.
Both the advertiser and complainant party to the original investigation can seek an Independent Review of our decision, should they wish to.
The ASA said what? Here it is again: “This rule gives the ASA scope to apply the Codes, to ads, beyond what is required in law if we consider that an ad is depicting a behaviour or activity that is potentially harmful or irresponsible.”
So there you have it: the ASA can determine by itself, on a whim, what it thinks is potentially harmful. No evidence needed. Just the gut feel of whomever is sitting in judgement.
The ASA did not consider driving a convertible as potentially harmful even though statistics show that many head injuries result from car crashes, and I would imagine the likelihood of a head injury is greater without a roof over your head — but I have no evidence of that!
The ASA also try to deflect criticism by saying, “our ruling applies to advertisers only and should not be read as general advice to the public.”
That just doesn’t wash with me. The ASA ruling said: “We told Cycling Scotland that any future ads featuring cyclists should be shown wearing helmets and placed in the most suitable cycling position.”
So, in effect, the ASA is applying their ruling to the general public by banning adverts showing safe cycling (and safe overtaking) and telling advertiser how they should show cycling behaviour to the public.
Aside: In a separate ruling also this week the ASA did not uphold complaints from dozens of people that a Volkswagen car advert showing dogs being driven about with their heads sticking out of the windows – the ASA said, “We considered that the tone of the ad was light-hearted and that the ad was unlikely to encourage dog owners to allow their dogs to travel in that way.”
THE HIGHWAY CODE: RULES, MUST, AND SHOULD
The reference to the Highway Code by the ASA in its ruling also gives me an opportunity to highlight an important point about this bit of non-legislation: its use of ‘rules’ and the meaning of ‘should’ and ‘must’. But first…
Others elsewhere have pointed out that the ASA ignored other sections of the Code – rule 163 for example which is about passing a person on a bicycle at a safe distance. That seems to be a very big miss by the ASA there! The ASA also have ruled in the past that it is fine for motor car manufacturers and sellers to advertise ‘road tax’ – something that does not exist, and is thus untruthful.
I asked the Department of Transport back in March 2011 for studies which back up the advice given in the Highway Code – precisely the Rules that today’s ruling by the ASA relies on. A person in the Sustainable Travel and Equalities section of the Department for Transport wrote back to me in June 2011 and said,
“I am unable to determine which studies were used to justify the inclusion of the advice in Rule 59 [Clothing: HiViz and Helmets]…to clarify, this Rule contains advice to cyclists and is not mandatory, people and parents are free to choose whether to follow this Rule.”
In a separate enquiry I asked what is meant in the Highway Code by the term ‘Rule’ and their use of ‘must’ and ‘should’.
Most people won’t stop and think about these kinds of pedantic things, but it is important to note the confusion that does arise. Firstly, the Highway Code is just a reference to actual legislation – but only when the ‘Rule’ uses the word ‘must’, otherwise it is just advice, often not backed up, as I quoted earlier, with any kind of evidence. Calling every item in the Highway Code a ‘rule’ is also very misleading – because clearly anything using the word ‘should’ is not a hard-and-fast rule in the traditional sense of the word.
While at all this; I have written to my MP to bring the ASA ruling to his attention – for I strongly believe that the ASA is in need of taking his advice from 2009: it needs to undergo a cultural change urgently.
For evidence about helmet effectiveness, please see CYCLE HELMETS and make your own mind up (if you want to wear one, fine, if not, it isn’t breaking any law in the UK). You may also like to read the study done by Dr Ian Walker at Bath University on evidence showing that people driving a car react differently when they see a person on a bicycle riding in front of them: the rider’s hairstyle (perceived gender), position in the road and whether they wear a helmet all make a difference!