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APEC Gives Go-Ahead on Best Practice Initiative

A meeting of APEC Trade Ministers was held last weekend in Qingdao. Among the many decisions made was We welcome the APEC Advertising Regulatory Capacity Building Mentoring Program, which aims to promote alignment of advertisement standards and reduce the cost of doing business.”

Please see Item 48 of the Qingdao Statement on this link

http://www.apec.org/Meeting-Papers/Ministerial-Statements/trade/2014_trade.aspx

This is good news and is the next step after that mentioned in the November18, 2013 post below. The decision allows the establishment of an ongoing program.

Watch this space for further developments.

APEC-OECD Checklist on Best Practice Regulation

There is a very useful and comprehensive checklist on best practice regulation. It is the APEC-OECD Integrated Checklist on Regulatory Reform. It is a general overview of the best practice requirements of best practice regulation in general – not just advertising regulation.

The checklist is available at this link http://www.oecd.org/regreform/34989455.pdf

The checklist is similar to other best practice regulation documents. For instance Paragraph A2 states “Consider alternatives to regulation where appropriate and possible, including self-regulation, that give greater scope to citizens and firms; when analysing such alternatives consideration must take account of their costs, benefits, distributional effects, impact on competition and market openness, and administrative requirements.”

Important Best Practice Briefing and Planning Meeting

An ‘Information Exchange and Discussion’ on Best Practice Advertising Regulation will be held in Sydney, Australia on 24 March. The event is part of the WFA Annual Conference and Global Marketing Week being held in Sydney from 24 – 28 March.

The program includes

– Presentations by Guy Parker and Ildiko Fazekas of the European Advertising Standards Alliance (EASA)

– Presentations by Asia-Pacific advertising Self-Regulatory Organisations from India, Singapore, Australia and New Zealand

– An open forum discussion on the way forward in the Asia-Pacific region. This promises to be a most useful and important discussion.

The session is being organised jointly by EASA, WFA and the Advertising Standards Bureau (ASB). Fiona Jolly of the ASB was instrumental in organizing the Hanoi Conference and is leading the discussions with APEC.

If you are interested in attending this most important meeting please contact Fiona at fjolly@adstandards.com.au  or Oliver Gray at oliver.gray@easa-alliance.org

Building Capacity

Building capacity, training and development in best practice advertising regulation was identified as being of priority by the Hanoi Dialogue, which has now been endorsed by APEC. This is welcome news as a robust best practice advertising regulatory regime provides the right environment for a flourishing advertising industry. As advertising is a driver of economic growth everyone benefits. Now begins the task of actioning the recommendations.

Capacity building, training and development is needed in three areas

– Advertising regulators

–  Industry including advertisers, ad agencies and media

– Governments

Industry does not always recognise it has a key role and needs to be a driver of the capacity building, training and development program. In a general sense this is counter-intuitive for industry as it leaves regulation to Governments. Conversely it is counter-intuitive of many Governments to encourage industry to be involved in the development of a regulatory regime. Best practice advertising regulation is a partnership between Government and industry – That is the challenge

APEC Puts Best Practice Ad Standards on Agenda

The APEC Ministerial Meeting held in Bali on 4/5 October agreed to the “progression of advertising standards in the region.” This is a huge step forward and will enable the recommendations from the November 2012 Hanoi Dialogue on ‘Advertising Standards – Principles and Practice’ to be implemented.

A key issue identified at the Dialogue was the need to build capacity. This also was recognised by the Ministerial Meeting generally. Paragraph 46 of the Ministerial Statement states –

We encouraged interested economies to explore the possibility of using additional tools to strengthen their implementation of good regulatory practices, including single on-line locations for regulatory information, prospective regulatory planning, including regulatory agendas, and retrospective reviews of existing regulations. We instructed officials to develop capacity-building programs to assist APEC economies in improving their understanding on these tools.”

Also important was that the Ministers recognized that best practice regulation reduces barriers to trade thus fostering economic growth and that advertising regulation is a vital component. Paragraph 50 of the Statement states –

“We recognized the work on regulatory approaches on reducing technical barriers to trade and fostering greater regulatory cooperation in the region including through the revised APEC Regulatory Cooperation Advancement Mechanism (ARCAM) on Trade-Related Standards and Technical Regulations and we welcomed discussions on electric vehicles as the topic for the 2014 ARCAM Dialogue. We look forward to the progression of work on advertising standards in the region.

Next Steps

The Advertising Standards Bureau Australia (ASBA), which has been leading the project on behalf of advertising regulatory organizations, has been liaising with APEC. It announced that it and international partners are now planning the way ahead and assisting APEC. It is anticipated that there will be substantial progress in 2014. In a just released statement ASBA said –

“APEC will soon finalise a project on identifying gaps in the advertising system and standards in the region. From there APEC members will take action to use the resources of existing systems, such as those in Australia, New Zealand, Malaysia, Canada and others, to provide capacity building training and development to bring the systems and standards in all APEC economies to a level that will best benefit all communities.”

The Ministerial Statement may be found on this link

http://www.apec.org/Meeting-Papers/Ministerial-Statements/Annual/2013/2013_amm.aspx

The ASBA statement may be found on this link

http://blog.adstandards.com.au/2013/11/advertising-and-its-benefits-to-apec-economies/

APEC Best Practice Regulation Guidelines

It is not well known but many countries have guidelines that should be followed before any legislation or regulation is enacted. When advertising regulation is proposed the procedures that should be followed are often overlooked.

he USA has the 12 Principles of Regulation that are issued by the White House and have been renewed with minor modifications by successive Presidents. Australia has 8 Principles of Best Practice Regulation promulgated by the Council of Australian Governments (COAG). New Zealand has the New Zealand Code of Good Regulatory Practice issued by the Ministry of Business Development & Employment. There is a remarkable similarity of all three documents with emphasis on efficiency, effectiveness, transparency and equity.

There are also APEC best practice guidelines – the APEC Guidelines for the Preparation, Adoption and Review of Technical Regulations that apply to the 21 APEC member countries/economies.

Key Guidelines for Advertising Regulation

Barrier to trade

The underlying objective of the APEC Guidelines is the elimination of barriers to trade. Design of the regulation is therefore important, as it should minimize “the constraints on the ability of firms to enter and exit the market”.

The right to advertise is not absolute but is subject to fetters. The objective of the fetters is to ensure there is fair competition and that consumers are properly protected. As an example a key fetter is that advertising must be truthful and not mislead. This fulfills both purposes of enhancing fair competition and protecting consumers. However fetters improperly used can be a blunt instrument and become a barrier to trade – such as selective ad bans on particular products or for certain media.

Problem Identification and Policy Objectives

The APEC Guidelines list this issue as a basic starting point –

“The first step in the development process should be to clearly identify the problem that needs to be addressed. … legitimate reasons for imposing technical regulations are:

  • national security requirements;
  • the prevention of deceptive practices; and
  • protection of human health or safety, animal or plant life or health, or the environment.”

Care therefore needs to be taken that any proposed advertising regulation meets at least one of these policy objectives. Also the proposed regulation should not be an ad hoc good idea but supported by evidence rather than personal viewpoint. Care also needs to be taken that the evidence is clear after taking into account all sides of the debate. On many of the current ‘hot’ advertising issues the evidence is contestable and at best equivocal.

Assessing Regulatory Options

This is a crucial consideration. A range of regulatory and non-regulatory options is available for Governments.

The APEC Guidelines are detailed and specific – “In order to ensure that any government intervention brings the greatest possible net benefits, it is important to ensure that all the feasible options are identified and assessed. In addition to the imposition of technical regulations, there are a number of policy instruments available which should be considered.

 Such alternatives could include:

  • status quo
  • reliance on general law
  • educational programmes
  • voluntary standards
  • economic instruments (taxes, tradeable property rights)
  • insurance and liability laws
  • codes of conduct/practice
  • industry self regulation and co-regulation”

The options of self-regulation, codes and other non-regulatory options are also mandated in other Guidelines.

– The Second Principle of the Australian COAG 8 Principles of Best Practice states, “A range of feasible policy options must be considered, including self-regulatory, co-regulatory and non-regulatory approaches, and their benefits and costs assessed.”

– The New Zealand Code for Good Regulatory Practice states, “Consideration of alternatives to regulation: Regulatory design should identify and assess the most feasible regulatory and non-regulatory alternative(s) to address the problem.”

 – The Third Principle of the US Principles of Regulation states, Each agency shall identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.”

Cost-Effective

The chosen regulatory or non-regulatory action should be cost-effective and every option should be measured to assess its impact. The APEC Guidelines state, “In deciding whether to impose a technical regulation, consideration must be given to the various alternative mechanisms available to overcome the problem. When assessing the alternatives, any constraints (ie. legal or fiscal constraints) should be clearly identified. Each option should then be considered carefully in terms of costs and benefits. The option chosen should be the option which either provides the maximum net benefit or the least net cost to society.”

From a Government perspective best practice advertising self-regulatory systems are generally considered to be the most cost-effective as there is nil cost. If there is a cost it is ensuring that the system adheres to best practice. Additionally around the globe advertising self-regulatory regimes have consistently demonstrated that they effectively regulate advertising providing they follow best practice principles.

 International Standards

The APEC Guidelines state “that members should adopt international standards or the relevant parts of them, as the basis for the technical regulation”. This is most relevant for advertising regulation. The base standard for advertising codes is the ICC Code of Advertising and Marketing that has been in existence since 1937. Self-regulatory systems with rules based on the ICC Code are operating in over 35 countries, across 6 continents. The Code and the best practice self-regulatory systems in existence constitute the world standard.

 Other Guidelines

There are further guidelines on other matters including consultation, compliance, monitoring, review and performance standards but this discussion focuses on those relevant to advertising. If best practice regulation procedures are followed there should be a Regulatory Impact Assessment that would cover the matters covered by the Guidelines. In particular it should analyze various impacts including economic costs, reduced competition, reduced innovation, reduced consumer choice and the impact on jobs.

In summary, the APEC Best Practice Regulation Guidelines provide a legal pathway that should be followed when regulation of advertising is proposed.

APEC Presentation by Fiona Jolly

There was a follow-up by APEC to the November Dialogue in Hanoi on Advertising Standards – Principles and Practice. Fiona Jolly, who was the organiser of the Dialogue, was asked to report to the APEC Conference on Good Regulatory Practices held at Medan, Indonesia at the end of June. Her presentation was comprehensive and summarised the discussion at the Dialogue and the recommendations for the future.

Proceedings at the Conference are now available. A copy of the text of Fiona’s presentation and the accompanying PowerPoint may be viewed at http://www.ffar.org  Click on ‘Reports’ and then ‘Fiona’s Presentation’.

The Need for Capacity for Best Practice Advertising Regulation

In late July the United Nations resolved to establish an Interagency Task Force on the Prevention and Control of Noncommunicable Diseases. The Task Force will be led by WHO. Its main objective is to coordinate all UN organisations to implement the WHO Global Action Plan for the Prevention and Control of NCDs 2013-2020. The Global Action Plan has various strategies to deal with NCDs arising from tobacco, harmful use of alcohol, unhealthy diet and lack of physical activity. See WHO press release http://www.who.int/mediacentre/news/notes/2013/ncds_ecosoc_20130722/en/index.html

The Global Action Plan makes several references to the need for advertising and marketing regulation. However one of the issues identified in the WHO press release is the need for UN organisations to increase their capacity to so they can implement the strategies.

The capacity problem was also identified at the November 2012 APEC Dialogue in Hanoi. Five recommendations were made – see post below of 30 January. One of the recommendations was,

4. Capacity Building – There is a need for capacity building to promote effective self-regulation and help economies develop appropriate systems. Two initiatives are suggested:

 – Regulatory Mentorship Program – A mentoring program on such issues as advertising standards legislation, regulations and development of regulatory codes

 – Self-Regulatory Organisation Workshop – A technical workshop held in 2013 for economies seeking to build capacity for the effective establishment and/or improved operation of a self-regulatory regime.”

 This and the other recommendations are currently under consideration by APEC.

 Comment

WHO and the UN have identified that increased capacity is required by UN agencies in several areas. One of those areas is the assistance in the development of best practice advertising regulation. The Hanoi Dialogue concluded that industry and Governments need increased capacity so that economies can develop best practice systems.

The problem of lack of capacity has been clearly identified but there is no need to wait for the UN agencies, WHO or APEC to start the process. Consumers need to be properly protected and empowered by best practice advertising regulation. It is also in the self-interest of industry to satisfy consumer interests by protecting and empowering them. Industry therefore has a key role in building capacity and working with Governments, UN agencies, WHO and NGOs in developing best practice advertising regulatory systems.