FSA and FOS at odds?

I refer to Section 39 of the Information Tribunal Decision dated 13 October 2008.

It would appear that the FSA took advice from Leading Counsel regarding marketing literature. The advice given, apparently accepted by the FSA, was that if this material could show that it had sufficiently indicated the need for the product to achieve a higher growth rate then that firm could avoid a determination that it had entered into a contractual warranty. This is at total odds with the methodology of the FOS. The FSA's Counsel seems to advise that if it is in the literature then the policyholder should have read the documents and, if they did not understand, should have questioned the fact. The FOS does not accept that an illustration, product literature and a 'cooling-off' notice is sufficient for a complainant to understand there was a risk involved.

Presumably the FOS have also taken Counsel's advice and this conflicts with that given to the FSA. Why has this inconsistency not been addressed?