Advertising bans are a slippery slope. Free speech is under threat

Len Shackleton

August 5, 2020

Boris Johnson has revived proposals to ban pre-9pm TV adverts for high fat, salt or sugar (HFSS) food and drink, and completely ban internet advertising for these products.

These proposals are predicted to cost broadcasters up to £200m in lost revenue and will risk jobs at a difficult time for all employers and their staff. They are unlikely to reduce children’s consumption of sugary breakfast cereal, crisps and burgers by very much, even on Public Health England’s own calculations. And there will be collateral damage to the marketing of butter, eggs, cheese, ham, yoghurt and other products which are part of a healthy diet and not normally seen as “junk food”, yet fall under the HFSS proscription.

But these latest proposals to restrict commercial free speech are just the tip of a regulatory iceberg.

Before the late 1950s, advertising was subject only to general laws relating to fraud and defamation. With the coming of commercial television, some basic rules were set out by the Independent Television Authority. Around the same time, concerns about “hidden persuaders” led the Advertising Association and other bodies to pre-empt possible government intervention by setting up the Advertising Standards Authority (ASA) to handle all other types of advertising. Today the ASA has taken over the function of regulating advertising on broadcast television, video on demand, and the internet. It bills itself as a “one-stop shop” for advertisers.

The state itself now imposes many rules and prohibitions on advertising related to medicines, tobacco products, alcohol and gambling. Local authorities also have powers over the placing of advertisement hoardings and what can be displayed on them. Recently, the London mayor has banned a number of adverts of which he disapproves from the underground.

But most advertising restrictions come from the ASA. This supposedly “self-regulatory” body, funded by a levy on advertising spend, operates independently of parliamentary scrutiny. It is run largely by professional regulators rather than industry practitioners. It has no real legal powers, but few advertisers dare resist the increasing number of diktats it imposes.

Originally adopting the modest brief of ensuring that advertising is “legal, decent, honest and truthful”, its focus in the early sixties was on following up around 300 complaints a year, almost entirely about misleading claims and mail order goods which failed to arrive. Last year it handled 35,000 complaints – plus 4,500 compliance cases which it started as a result of its own proactive investigations.

A large proportion of these investigations (around two thirds of those covering broadcasts, for example) are now about “harm” and “offence”.

“Harm” is not just about the health issues exemplified by junk food. The ASA has widened its remit to cover “mental, physical or social harm” and anything which causes “serious or widespread offence against generally accepted moral, social or cultural standards”.

This enables it to promote social change without any democratic mandate. One aspect of this is its adoption last year of a policy to forbid the use of “gender stereotypes” and “gratuitous and unnecessary sexualisation”.

This amounts to censorship of advertisements which we would not accept in films, the theatre or television programmes. For instance, take two of the adverts which first fell foul of the new policy. One showed two new fathers chatting about Philadelphia cheese while a child disappeared on a restaurant’s conveyor belt. The other was a Volkswagen advert which showed a new mother calmly sitting on a bench with a pushchair while men (and one woman) engaged in various feats of daring. Neither of these brief scenarios could have been banned if they were part of a comedy show or a documentary.

This is made even clearer in an ASA judgment against Missguided swimwear’s sexy ad which appeared during a break in Love Island. There was just one complaint about this. For understandable reasons, we don’t know whether the complainant was a genuinely offended person or a political activist or organisation with a feminist agenda. But the ASA’s woke and unrepresentative council “considered that some viewers who enjoyed the programme would nevertheless be seriously offended by advertising that presented women as sexual objects”. So the advert was banned.

We are asked to believe that somebody who willingly watched this programme, which appeals to young people who enjoy ogling semi-naked men and women copping off, would take offence at an advert aimed at the same demographic. Does such a person really exist? Even if they do, why should the opinion of one person lead to a ban?

It may be a shock to our New Puritans, but opinions differ. As ITV commented, “the ad depicted similar values, swimwear and scenes as Love Island and they were surprised to learn that a viewer… had considered the content of the ad offensive.” Moreover, the Missguided advert – like the Philadelphia and Volkswagen ads – had been pre-approved by Clearcast, the organisation (funded by TV companies) which vets scripts and final versions of adverts in advance of their showing. This “double jeopardy” for TV adverts is costly to businesses and difficult to justify.

What worries me is that the ASA agenda is capable of indefinite expansion. It takes government mandates and pushes them further. Its code of practice already covers the treatment of minority ethnic groups, and we can anticipate tighter direction following the rise of Black Lives Matter. Environmentalist groups want to see restrictions on advertising certain products. This week, there was a call to ban adverts for sports utility vehicles. The ASA itself even calls in its latest annual report for political advertising to be regulated – which raises concern about wider ideas of free speech.

Back in the 1970s, the Nobel Prize-winning economist Ronald Coase argued that, in considering free speech, we should not make a distinction between the “market for goods” and the “market for ideas”. There was no more a general case for regulating “commercial speech” than there was for regulating “intellectual speech” by writers, academics and politicians.

Though there may in both cases be instances where restriction is justified, they should be few and far between. Tongue in cheek, you could argue that there might be more grounds for regulating intellectual free speech than for commercial free speech. More people can make sense of which breakfast cereal to buy than can understand the Office for Budget Responsibility’s latest report,  Matt Hancock’s advice about face masks or The Economist’s tedious leaders about why Brexit is a disaster.

Free speech should be indivisible, and those of us who still believe in that under-fire ideal should extend it to businesses as well as politicians, journalists and pressure groups who are just as likely to tell us that up is down and day is night as are advertising agencies. We should have far higher barriers to advertising bans, whether they come from overweight prime ministers or politically correct regulators.


  • Len Shackleton

    Professor Len Shackleton is an editorial and research fellow at the Institute of Economic Affairs and professor of economics at the University of Buckingham.

Written by Len Shackleton

Professor Len Shackleton is an editorial and research fellow at the Institute of Economic Affairs and professor of economics at the University of Buckingham.


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