The Advertising Standards Authority (ASA) is the UK’s regulator of advertising across all media, with its Council having responsibility for enforcing the Advertising Codes of the Committees of Advertising Practice (the CAP Codes). The CAP Codes not only reflect consumer protection laws, but they also include ad industry self-imposed rules. The CAP Codes are structured to include both various general requirements that all advertising in the UK must meet, together with specific requirements when advertising particular sensitive/higher-risk goods or services (e.g. alcohol, healthcare products and tobacco) and making regulated types of advertising claim.

The ASA is widely regarded as one of the most proactive regulators as it does not wait to receive a consumer or competitor complaint (or referral from a ‘sister’ regulator) before investigating an ad for potential non-compliance. It has implemented an AI powered “Active Ad Monitoring” system, which is used to proactively scan online ads at scale for non-compliance. Indeed, last year 2025 the regulator scanned nearly 60 million online ads using this system.

In addition to increased regulator and consumer protection laws and measures (e.g. tighter regulation of ‘unhealthy’ HFSS foods and further restrictions on gambling sponsorships in sport), and also as a result of the regulator’s increasingly pro-active and militant approach, the compliance landscape has fundamentally shifted over the last few years. In particular, the risk for a business of being at the receiving end of ASA enforcement action has steadily increased. Whilst historically businesses would often consider CAP Code compliance optional and the preserve of ‘blue chip’ groups. Increasingly, many businesses are alive to the necessities of compliance in order to comply with underlying consumer law, and are also grappling with the question of how to handle ASA enforcement action. With the regulator taking an ever more aggressive approach ultimately, those subject to adverse rulings must consider what options are available if they disagree with a ruling of the ASA Council.

While many businesses will be willing to accept an ASA Council ruling without challenge, it is important to understand for those who do not that an adverse ruling is not necessarily the end of the road.

The first step: independent review

The ASA operates an Independent Review process that enables advertisers, complainants and broadcasters (but not any other parties) to question whether there were substantial flaws in the process or rationale of ASA Council rulings or decisions not to further investigate a complaint beyond initial assessment which mean those should be considered again.

Eligible parties wishing to request such a review must act quickly, as requests must be:

  • made in writing and signed by an appropriate person (in the case of corporate entities this is usually the Chairman, Chief Executive or an equivalent office holder);
  • made solely by reference to the terms of reference discussed below; and
  • submitted to the Independent Reviewer within 21 days from the date of the ASA’s letter of notification of a final decision.

It is important to be aware that a review cannot be requested simply because a party disagrees (however passionately) with the ASA Council ruling or decision in question. Rather, not unlike the grounds on which a litigant may challenge a court decision: the Independent Reviewer can only accept a request if at least one of the following criteria is met:

  • Additional evidence: additional relevant evidence has become available which could not reasonably have been shared during the course of the original ASA investigation.
  • Substantial ruling flaw: it is alleged that there is a substantial flaw in the ASA’s ruling or decision.
  • Substantial process flaw: it is alleged that there was a substantial flaw in the process by which the ASA’s ruling or decision was made.

If the Independent Reviewer accepts a request and following their assessment agrees a substantial flaw of process or ruling is apparent or that additional relevant evidence is available that does not then equate to an automatic “win” for the applicant. Rather, the Independent Reviewer will ask the ASA to reconsider the applicable ruling or decision.

In the case of ASA Council rulings, that usually triggers a review of the ruling in question which may result in the original ruling being revised or upheld. In either case, the ASA Council’s ruling on reviewed cases is final – meaning that at that stage ASA internal processes have been exhausted. 

In practice, requests for an Independent Review are relatively uncommon and in 2025 the Independent Reviewer reported a further drop in the number of review cases overall. However, with media reports of a number of high-profile advertisers expressing frustration at unfavourable ASA Council rulings (particularly regarding reference prices used in sale/discount price ads) we doubt that the downward trend will continue indefinitely.

Beyond the ASA

Whilst the ASA operates independently of government and is funded by the advertising industry rather than from the public purse, it is nevertheless recognised as an “established means” for the enforcement of rules on unfair commercial practices relating to advertising. This means that the ASA’s decisions are open to challenge in the courts via judicial review in the same way as are decisions made by other public bodies.

As for challenges made via the Independent Review process: judicial review is not an option simply because a complainant disagrees with an ASA Council ruling or decision. Nor is it a quick or cheap remedy to pursue: judicial review is limited to the court examining how a decision was made by reference to factors such as the legality of the decision-making process, not whether the decision itself was right or wrong.

As such, whilst judicial review of ASA Council rulings and decisions is in theory possible in practice, applications tend to be few and far between and successful applications even less so. The failed ‘Ribena Toothkind’ decision from 2001 (see here) was reportedly the first time the court confirmed that, as a quasi-judicial function, the ASA is indeed subject to the judicial review procedure. The Independent Review process is designed to mirror the judicial review process so, provided an Independent Review is carried out correctly, there should be very limited scope for a court to then come to a different conclusion.

However, this does not mean that the courts will always agree with a decision which the ASA or any other regulator has made. For context, it is interesting to note that in a recent case concerning attempts by another regulator, the Competition and Markets Authority, to secure unreasonable undertakings from an online mattress business relating to its pricing practices, the court noted that ASA guidance does not have the force of law nor is it binding on the court. The judge said that the ASA’s perspective (in that case with respect to the behaviour of an “average consumer”) was “entitled to a degree of respect, while not being determinative…”.

Again, we predict an increase in advertisers seeking to challenge ASA Council rulings and decisions in the courts once the Independent Review process has been exhausted. 

Challenge as a growing consideration

The impact of an unfavourable ruling by the ASA Council can be significant – the advert in question will usually be banned or require amendment, leading to disruption to marketing campaigns, potentially wasted media space and increased marketing spend. It may also result in adverse publicity (reduced sales will hit the bottom line) and scrutiny from other regulators, consumers and competitors, given that rulings are published by the ASA weekly and often reported in the general media and trade press.

Whilst the first line of defence should always be to ensure that an ad is compliant at the outset, increasingly it should also include assessing the strength of an ASA Council ruling or decision, identifying procedural or substantive weaknesses and considering whether a challenge via the Independent Review process, or even judicial review, is commercially justified. The former is free, the latter is not.

The key point is simple: an adverse ruling by the ASA Council should be taken seriously, but should not be assumed to be unchallengeable. Where stakes are high and there are genuine concerns about the ASA’s reasoning or process, advertisers may have more options than they initially realise.

Our Advertising, Media and Brands group specialises in advising on advertising law and regulation with its experience including supporting successful applications for Independent Review. For help on that or any other advertising issues contact partner and Global Chair of that group Carlton Daniel.