England and Wales High Court (Administrative Court) Decisions

SMITHKLINE BEECHAM PLC And ADVERTISING STANDARDS AUTHORITY Respondant [2000] EWHC Admin 442 (21st December, 2000)

CO/2291/2000

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

The Strand

London

WC2A 2LL

Wednesday 17^th January 2001

Applicant

Respondant

Mr. D. PANNICK Q.C. and Mr. M. FORDHAM appeared on behalf of the Applicant

Mr. C. FLINT Q.C. and Mr. M. SHAW appeared on behalf of the Respondant

MR JUSTICE HUNT:

1. This is a challenge by SmithKline Beecham (SKB) against the decision of the Council of the Advertising Standards Authority (ASA) on their adjudication of three complaints made to them in relation to advertisements for a soft drink called "Ribena ToothKind" (RTK). Its full name is "Ribena ToothKind No Added Sugar."

2. The first complaint was in relation to a poster depicting bottles of RTK as bristles on a toothbrush. The complaint was that this poster was misleading because it implied that RTK benefited oral health. The complaint was upheld. The ASA concluded that the poster without a qualifying statement wrongly implied that RTK "actively benefited oral health". In fact SKB, although they disagree, have since withdrawn this poster.

The second complaint was a magazine advertisement using the same toothbrush image and showing by means of a graph alongside that RTK and mineral water caused about the same enamel loss and stated that it was "found to be almost as kind to teeth as water". The complaint was that mineral water was more acidic than tap water and led to a misleading comparison. This complaint was not upheld. The ASA concluded that the test results would not have been different if tap water had been used.

The third was a trade press advertisement stating that "Ribena ToothKind does not encourage tooth decay". The complaint challenged this. This complaint was upheld. The ASA concluded that the statement was "misleading".

3. While today's challenge relates to all three complaints for reasons which will become apparent, it is to the adjudication on the third complaint that much of the claimant's fire is directed in particular because the very statement used in that trade press advertisement i.e. that "Ribena ToothKind does not encourage tooth decay" had been specifically approved by the British Dental Association (BDA) the national professional association for dentists. The BDA's accreditation panel had considered reports from its own panel of experts before approving the statement.

4. Before addressing that matter I deal with the main challenge to the whole adjudication and what is the first and main thrust of Mr Pannick's argument.

It is that the ASA engaged in early 1999 as a consultant on these three complaints a Dr Creanor who before he was engaged had allied himself publicly with complaints about SKB's advertising of RTK and in particular with the complaint by Mr McCall of Greater Glasgow Health Board concerning the poster which was the subject of the first complaint. Dr Creanor was reported in the press in September /October 1998 to have said and it is accepted he did say that:-

"he was in complete agreement with Mr McCall as regards his complaint about the advert. `I think that the message that is being put across is quite wrong. It is inappropriate and I would say that the message of the advert is not as the BDA would have intended either' ".

Further it is argued that the adjudication drew strongly on Dr Creanor's report for each paragraph makes reference to "The Authority concluded from expert advice..." or "The Authority understood from expert advice." Mr Pannick cries foul and says that it was unfair for the Authority to rely on Dr Creanor as an expert for he was not impartial or at the very least there were insufficient guarantees to exclude legitimate doubt about his impartiality. He stresses the importance of Dr Creanor's expert advisory role in a case in which the ASA were necessarily relying heavily on experts. His role was also important because SKB's own scientific evidence about tooth decay was submitted but barely referred to in the ASA adjudication. He submits that the ASA conclusions would not necessarily have been the same but for Dr Creanor's advice.

It is plain that the ASA placed importance on impartiality and rightly so. It emphasised that its first consultant had been "of an independent and impartial standpoint" in a letter of 30^th March 1999. It has explained in a letter of 4^th November 1999 that when he was first consulted Dr Creanor was asked "if he was biased in any way and ascertained whether he had any association with either SKB or the complainants". Dr Creanor had responded that "he was carrying out his own research into the product out of professional interest; he asserts that he was totally impartial and would remain so. He acknowledged that he was fully aware of the issues surrounding Ribena ToothKind and suggested that within the dental profession it would be impossible not to be aware of those issues". He made no reference to his publicised statements in support of Mr McCall's complaint. It appears that the ASA were unaware of these until he had reported in August 1999 and SKB had pointed out his previous "adverse opinion" in correspondence in October 1999. Mr Pannick says the ASA would not have regarded Dr Creanor as impartial and appropriate had they known of his public statements before retaining him. He says further that no member of the ASA Council would sit in adjudication in this matter having expressed those views which convey the appearance that he will not bring an impartial judgement to bear on the matter and that in view of the reliance on Dr Creanor he should, although only a consultee, in effect be treated in the same way as if he were a member of the adjudicating council.

5. Mr Flint for the ASA says:-

5.1. Dr Creanor was not a decision maker but a consultee and not the only one.

5.2. There is no duty to ensure that the ASA only use consultees who will be perceived as wholly impartial. In any event a pre judgement on one matter of complaint relating to proper comments on the "message" of the poster (now withdrawn) in the first complaint does not prevent impartiality in assessing the overall case. What he in fact said about that first complaint was in part supported by the BDA which agreed that advertisement was "ambiguous".

5.3. The ASA was very alive to the issue of impartiality both before and after the comments of Dr Creanor were brought to its attention.

5.4. The duty is to comply with the rules of fairness and that involves taking into account suggestions of personal prejudice. The weight to be attached to such suggestions is for the decision making public body. The matters now complained of were known and taken account of before the decision was finalised. All experts approached on this matter had previous views on it. There was no covert bias. Dr Creanor's report was disclosed and his reasoning exposed. He accepted an important point on extrapolation of results from adults to children which SKB had made and which the previous expert, Prof. Winter, had not accepted. Prof. Winter's report had been even more adverse.

5.5. It is plain that the ASA did not accept all of Dr Creanor's report e.g. over the name ToothKind.

6. What is the law? This court must act as the hypothetical observer, the reasonable man, and assess whether in any case there has in fact been a real danger, risk or possibility of unjust bias. C.f. R v Inner West London Coroner ex parte Dallaglio 1994 4 A.E.R. 139 per Simon Brown L.J. at 151. In making such assessment particularly in a case such as this in which no actual bias is shown in the decision and the decision maker can have had no pecuniary interest, this court must examine all the relevant material and satisfy itself that there was no danger of the alleged bias having in fact caused injustice before allowing the impugned decision to stand. In the present case I must therefore ask whether having regard to all the relevant circumstances there was a real danger of unjust bias in the sense that either the ASA or Dr Creanor might have unfairly regarded with disfavour the case of SKB in assessing these complaints.

I bear in mind Article 6 (1) of the E.C.H.R. and the right to a fair hearing before an "impartial tribunal" which is both a subjective test on the basis of the personal behaviour of a particular Judge in a given case and "an objective test of whether there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public. This implies that, in deciding whether in a given case there is a legitimate reason to fear that a particular Judge lacks impartiality, the standpoint of the accused is important but not decisive. What is decisive is whether this fear can be held objectively justified". C.f. Ferrantelli and Santangelo v Italy 23 EHRR 288 Judgement at p.309/310 and Hauschildt v Denmark 1990 12 EHHR 266 Para 46/48.

I am properly reminded that:- "The rules of fairness or natural justice cannot be regarded as being rigid. They must alter in accordance with the context" per Woolf J. in R v Amber Valley DC, ex parte Jackson 1984 3 A.E.R. 501 at 509 and also that:-

"the decision of a body, albeit composed of disinterested individuals, will be struck down if its outcome has been predetermined...... by the effective surrender of the body's independent judgement".

per Sedley J. in R v Secretary of State for the Environment, ex parte Kirkstall Valley Campaign Ltd. 1996 3 A.E.R. 304 at 321 and that:-

"bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias".

per Lord Goff in R v Gough (H.L.(E) ) 1993 AC 646 at 659.

It was this latter case which laid down the test of the appropriate question to be asked in terms of "real danger of bias". The case had involved a juror. It is a test which "has as its source the maxim that nobody may be a judge in his own cause" (per Lord Woolf at 671). In considering the position of a clerk to the justices Lord Woolf continued .. " No distinction arises in the application of the test because it is the clerk to the justices rather than the justices themselves who are alleged to be biased. A clerk to the justices is part of the judicial process in the magistrates court". Mr Pannick suggests that there is a parallel here in the sense that Dr Creanor's advice was of considerable influence in the decision making process.

Finally I should mention the case of Locabail (U.K.) Limited v Bayfield Properties Limited (2000) QB 451 in which the Court of Appeal emphasised that the public expression of personal views on issues arising in litigation would not ordinarily give rise to a real danger of bias but the articulation of the same in intemperate language could do so. It is a question of whether the same crosses the:-

"ill-defined line beyond which the expression by a trial judge of preconceived views .......... could threaten the appearance of impartial justice."

to adopt a quotation from Vakauta v Kelly 167 C.L.R. 568 at 571. The Judgement of the Court in Locabail said at page 496 that they had:-

"to ask, taking a broad common sense approach, whether a person holding the pronounced .......... views expressed by the Recorder .... might not unconsciously have leaned in favour of the claimant and against the defendant in resolving the factual issues between them". The court concluded "Not without misgiving, we conclude that there was on the facts here a real danger of such a result."

7. R v Gough (H.L. (E) ) 1993 AC 646 was plainly a landmark case on bias and apparent bias and it was reviewed by the Court of Appeal in a Judgement delivered on 21st December 2000 in the case of Director General of Fair Trading v The Proprietary Association of Great Britain. The Court of Appeal was there particularly concerned to review the Gough test in the light of the extensive review of the authorities here and abroad conducted in the case of Locabail at pages 475 and 476 and more particularly in the light of Strasbourg jurisprudence. The Court held at paragraph 85 that:-

"When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The Court must first ascertain all the circumstances which have bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility, or a danger, the two being the same, that the tribunal was biased."

8. In the present case I begin by reminding myself that this is a challenge to the decisions of the Council of the ASA who have to apply the provisions of their code applying their own judgement as to what the overall impression of the advertisement in question conveyed, whether the advertiser had material to prove its claims and whether in the light of this the advertisement was misleading. In looking at the question of bias I look at the role of Dr Creanor and the way his advice was treated by the Council. I have already recorded that he accepted part of SKB's submission (on extrapolating results from adult to child) which the previous expert had not. Equally I remind myself that the Council did not accept that part of his report which was critical of the name "ToothKind" itself. In short I find that the Council treated him as one would expect a consultee to be treated i.e. as an adviser and not a decision maker. He was not in the position of e.g. a juror or a justices clerk retiring with the tribunal to be part of the decision making process. He was simply one factor in that process. His previous comments on the message of the poster in the first complaint proved to accord in part with the finding of the BDA on whose support on the third complaint SKB rely. It was unfortunate that Dr Creanor did not disclose those comments and the press report to the ASA when asked on engagement about any association with the parties but it is plain that the Council of the ASA were well aware of them and of SKB's criticisms of Dr Creanor before they came to their final decision and took them into account giving them such weight as they saw fit. The report was disclosed. There was nothing covert about what occurred. There is nothing relied on in the manner or content of the report to support a claim of unconscious bias. I find that, despite his earlier views of the message of the first complaint, Dr Creanor was not precluded from assessing the evidence and coming to a professional, fair and dispassionate conclusion for the ASA. In any event he was a consultee and treated as such and I am satisfied that the Council of the ASA as the decision makers decided this case on the merits taking into account all the expert views they received as well as their own. In this context I bear in mind that on the most crucial issue of the absolute nature of the claim made that RTK "does not encourage tooth decay" the totality of all the expert evidence including that relied on by SKB did not justify the claim (see Paragraph 12 below). In short I find on examining all the relevant material that those circumstances would not lead a fair minded and informed observer to conclude that there was a real danger of bias either in Dr Creanor or, and more particularly, in the ASA.

9. The other three challenges by Mr Pannick all relate to the third (trade press) advertisement and are summarised as 2) the BDA point 3) the Tooth Decay point and 4) the Margin of Reasonable Claims point which combines with an Article 10 freedom of Expression (commercial speech) point. Each of these is described by Mr Flint as an allegation of error of approach rather than law. Mr Pannick claims they flaw the decision.

10. The BDA Point.

10.1. The trade press advertisement included the statement "Ribena ToothKind does not encourage tooth decay". That same statement had been specifically approved by the British Dental Association which is the national professional association for dentists one of whose objectives is to "improve the nation's oral health" . The BDA Accreditation Panel had specifically approved for use in advertising the claim that "Ribena ToothKind No Added Sugar does not encourage tooth decay and has been scientifically proven not to promote tooth erosion". The ASA were made aware of this by SKB and also made aware of the expert evidence produced in support.

10.2. The ASA's reasons for upholding the third complaint were:-

"Complaint upheld.

The advertisers said tooth decay was caused by bacteria breaking down carbohydrates in the mouth to produce acids that resulted in the localised loss of dental hard tissue. From the different techniques used to assess the decay potentials of food and drinks, the advertisers had chosen the plaque harvesting technique, which was recognised by the scientific community as an acceptable and valid technique. The advertiser said their studies showed Ribena ToothKind was slightly acidic but the mean plaque pH levels for those tests did not fall below the accepted critical pH threshold for the plaque harvesting technique, suggesting a low demineralising potential. The advertisers said that the British Dental Association reviewed the tests before accrediting Ribena ToothKind. The Authority understood from expert advice that the carbohydrate content of Ribena ToothKind had been lowered but not eliminated; that meant the product was less likely to encourage tooth decay but only if compared with drinks that contained a greater concentration of carbohydrate. The Authority noted that the claim was an absolute one, not a comparative one, and concluded that the claim was misleading and asked the advertisers to delete it".

The essence of the reasoning is in the last sentence. The reasoning does make reference to the BDA accreditation in the line "The advertisers said that the British Dental Association reviewed the tests before accrediting Ribena ToothKind." This is a very bare reflection of what had been presented to the ASA . Mr Pannick complains that it means that the ASA did not give proper weight to it before departing from it in what was "a close interrelationship of functions and a coincidence of issue". He goes further and says they were "departing" from the first adjudication and cites Carnwath J. in R v Cardiff County Council ex parte Sears Group Properties Ltd 1998 3 PLR 55 at 64 B-F when he said:-

"a broad principle ..... that where a formal decision has been made on a particular subject matter or issue affecting private rights by a competent public authority, that decision will be regarded as binding on other authorities directly involved, unless and until circumstances change in a way that can be reasonably found to undermine the basis of the original decision. That change may be a change in the factual circumstances or sometimes in the underlying policies affecting the decision... underlying the various approaches is the common-sense view that, in the public sphere, once the matter has been formally decided, it should stay decided until circumstances change in some material respect."

I reject this complaint. Mr Justice Carnwath was considering a decision made by a public authority which was then countermanded by the same public authority and his quoted dictum dealt with whether a decision by one public authority was binding on another. The ASA and BDA are different authorities with different functions and it is not and cannot be submitted that the ASA was bound by the BDA approval.

Complaint is made that the adjudication did not acknowledge the BDA approval and the conflict with it nor give clear reasons for departing from it. It is accepted that it had to take it into account as a relevant consideration. That it did so is, I find, evidenced by Mr Wisbey at para 30.1 and para 39 which covers the Council's discussions and I have noted that the BDA accreditation is acknowledged in the adjudication albeit very briefly. I find that the brevity of the acknowledgement reflects inadequate draftsmanship but does not mean it was not taken into account.

11. In giving its reason why it found the claim "misleading" the ASA made it clear it was because it was an absolute claim whereas they concluded that the evidence was that it was "less likely to encourage tooth decay but only if compared with drinks that contained a greater concentration of carbohydrate". This impacts not only on the BDA Point but also on the final two i.e. Tooth Decay and Margin of Reasonable Claims.

12. I remind myself that an advertisement is misleading if it makes a false claim making it likely that people reading it will buy the product. C.f. the judgement of Hoffmann J. in Director General v Tobyward Ltd. (Ch.D.) 1989 l.W.L.R. 517 at 521 paraphrasing Regulation 2 (2) of the Control of Misleading Advertisements Regulations 1988. I also look to the ASA's Advertising Code which under "Substantiation" says at 3.2 "If there is a significant division of informed opinion about any claims made in an advertisement they should not be portrayed as generally agreed". Under "Truthfulness" it says "No advertisement should mislead by inaccuracy, ambiguity, exaggeration, omission or otherwise".

There can be no doubt that the claim made was absolute and indeed SKB described it as such in its submissions to the ASA. The claim was not expressed as one of opinion. The ASA were presented with material considered by the BDA referring to e.g. "very low sugars content", "weak cariogenic potential" and "weak cariogenic challenge" rather than none at all. They were entitled to conclude on that material alone that an absolute claim could not be justified. In addition they had available to them the reports of Dr Creanor and Prof. Winter which the BDA did not have. Taking all these factors into account they were entitled to find as they did, explaining that:-

"The (ASA) understood from expert advice that the carbohydrate content of Ribena ToothKind had been lowered but not eliminated; that meant the product was less likely to encourage tooth decay but only if compared with drinks that contained a greater concentration of carbohydrate. The Authority noted that the claim was an absolute one, not a comparative one, and concluded that the claim was misleading and asked the advertisers to delete it".

I find that reasoning sufficient and in accordance with the ASA's own code. The ASA were differing from the BDA but there was no duty upon them to explain in terms why they were doing so.

13. The Tooth Decay Point.

This is a comparatively short point. SKB complains that the ASA failed to make and state a finding on whether Ribena ToothKind "produced the potential for decay to any significant degree". Mr Pannick says that is the state of the expert evidence and the ASA should have included that in their adjudication.

Their evidence spoke of "negligible risk of contributing to caries" (Professor Curzon), "not... considered to pose a significant risk for enamel demineralisation" (Toumba & Duggal), "does not encourage tooth decay.... even if multiple drinking occasions..." (Professor Duggal) and "would actually discourage dental caries" (Professor Smith).

I find that the question posed by SKB "whether RTK produced the potential for decay to any significant degree" was not the relevant question for the ASA who did not have to answer it. The very fact that this is the state of the evidence submitted by SKB shows that its "absolute" claim cannot be justified. All the evidence now before me is to the effect that RTK does not indeed produce the potential for decay to any significant degree but that is not what the ASA had to ask itself which was "Is this absolute claim justified?" or, put another way, "Does RTK produce the potential for decay to any degree ?" Even "negligible risk" and "no significant risk" are not "no risk".

It is not said that the ASA conclusion that the claim was misleading was perverse and I do not find it so. This was indeed an absolute claim and is acknowledged to be so. It cannot be justified in such terms and the ASA were not only justified in coming to their conclusion but were duty bound to do so. It cannot be said that there was no responsible body of opinion contrary to the SKB claim. There was a contrary body of responsible scientific opinion and it was open to the ASA to prefer it (See their Code at 3.2 above). Even SKB's own expert evidence did not justify the absolute nature of the claim made.

14. The Margin of Reasonable Claims Point.

It is said that the ASA should have recognised a range of claims which could reasonably be made and asked whether the claim "does not encourage tooth decay" was within that margin. It is further said that this is especially important as it impacts on the exercise of commercial free speech where a requirement of justification or pressing need arises in relation to any interference, see R v Secretary of State for the Home Dept ex parte Simms 2000 2 AC 115 and R v Advertising Standards Authority ex parte Robertson 4.11.99. Mr Pannick argues that if this was an objectively reasonable claim it should not have been regarded as misleading. He claims that the ASA have approached this in too restrictive a manner and that this is an unjustified intrusion into the right of free speech.

Article 10 of the European Convention for the Protection of Human Rights is no different from English law on the subject. I find that the Code under which the ASA acts, which is indeed a restriction on advertising but one designed to restrict misleading claims, is entirely consistent with Article 10 to which the ASA does have regard. It is not a blanket ban. The advertiser can advertise his product within the Code which is designed for the protection of the public. Under the Code requirements for substantiation the more stark, categorical or absolute the claim the greater the degree of substantiation required. With an absolute claim there can be no margin. Following the test in Casado Coca v Spain 18 EHRR 1. at page 24 I ask myself whether the measures taken at national level are justifiable in principle and proportionate. I find they are and that the interference in question is properly limited. I find that the ASA approached this claim appropriately within the application of their Code and asked themselves whether the absolute claim being made was substantiated. When they found that it was not there was no room for any margin of reasonable claims argument.

15. It follows from the totality of the above that this challenge fails and that the adjudication of the ASA in this matter is upheld.