Peter Nuttall is back in the ring. His case is being re-heard this week.
Tourism New Zealand (TNZ) – defending its 100% Pure New Zealand” branding – claimed it was “not an environmental statement or promise and never has been”.
Equally strangely, the Advertising Standards Authority (ASA) agreed and decided that TNZ made no environmental claims. The ASA considered, therefore, that its environmental codes did not apply.
Peter had 14 days to appeal the ASA’s decision in late-May, and he did. Remarkably, from under sail off the coast of Fiji where his work currently locates him, Peter wrote his appeal and chased it, doggedly, through due process.
Peter’s primary case for appeal was that his complaint would be more appropriately heard under the ASA’s environmental code.
But there are some other interesting twists and turns to this story first.
Peter’s appeal took an interesting detour. After legal advice, the Chair of the ASA acknowledged a procedural flaw on their way to the original decision. The Chair advised the board to consider the complaint in light of Basic Principle 2 of the code but instead they used Basic Principle 4.*
It is a procedural error but enough to make it necessary for the ASA to ‘set aside’ – trash – the original decision.
The new material in Peter’s appeal will now be considered alongside the original complaint. Round 5 to Peter.
Round 6 – also to Peter – was the more significant victory on his way to this week’s ASA decision.
The ASA accepted that Peter’s complaint not only be re-heard with new material in the appeal added, but that his complaint does qualify for consideration under its environmental code.
Strangely, however, they initially opted for the now defunct 2012 code because the advertising originated before the new 2013 code.
OK – but Peter was adamant. The advertising is happening now and the 2013 code is germane. He won that argument too.
Round 7 to Peter – The Chair has invited the advertiser to respond to his complaint under the 2013 Code for Environmental Claims because the advertising is current, even if it originated before the 2013 code.
The sticky detail
The ASA has asked the board to consider Principles 1 and 2 of the code when deliberating on the environmental claims made by Tourism New Zealand here and here and relating to “100% Pure New Zealand”. The board has requested a response from the advertiser.
Principle one: “Advertisements making an environmental claim should be prepared with a due sense of social responsibility to consumers and to society”.
Principle two: “Advertisements making environmental claims should not contain any statement or visual presentation or create an overall impression which directly or by implication, omission, ambiguity or exaggerated claim is misleading or deceptive or is likely to deceive or mislead the consumer. (Obvious hyperbole, identifiable as such, is not considered to be misleading)”.
What do you think? What are Peter’s chances?
The decision will be out soon. Watch this space.
More important than the just the outcome of Peter’s case is to consider what a positive or negative outcome means to New Zealand and its environment…
… in my next post.
The ASA got its basic principles mixed up. Basic Principle 4 was considered in the original evaluation instead of 2, as directed by the Chair. Two and four are quite different principles:
Principle 2 states that “No advertisement should impair public confidence in advertising” whereas Basic Principle 4 states that “All advertisements should be prepared with a due sense of social responsibility to consumers and to society”.