ReactS : Advertising Lawyers & Attorneys : Reed Smith Law Firm : Marketing Regulations, Product Placement

If you wear contact lenses,  chances are you find them a necessary evil, an uncomfortable "poke in the eye" to start your day. This may all change in the not too distant future as a team of researchers at Washington University are developing computerised contact lenses which will be able to receive and display certain information directly into your eye. Emails, texts, tweets and all other sorts of notifications can be displayed immediately and directly without having to so much as touch your smart phone or laptop.

The team, lead by Babak Parviz, have been testing basic prototypes on rabbits and have so far had success. While Parviz is adamant that this technology is within our reach, you may have to wait until sometime in the 2020s before they become available to consumers.

The technology will incorporate control circuits, communication circuits and mini-antennas in order to achieve the desired result. According to Parviz, the main challenge facing them is the power supply, comprising of a wireless battery.

If these cyber lenses function as anticipated their application is limitless. Already there are talks of using them for directions, mobile notifications, zoom functionality, visual aids, gaming and even a way to watch television. From an ad perspective exciting times lay ahead, Minority Report style personalised holographic promotions may transcend the silver screen and become a reality.

Given that currently the most sophisticated prototype has only managed to sustain a single dot of light projecting about a pixel of digital data, we may be getting ahead of ourselves. Even so, this will clearly provide the advertising and marketing industries a new and innovative way to promote goods and services in the future. Watch this space.

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Directly impacting the operations of European companies, the prospect of new TLDs being authorized by Internet Corporation for Assigned Names and Numbers (ICANN) is being challenged. Today, in a letter to Mr. Rod Beckstrom, ICANN President, the ANA (Association of National Advertisers), the U.S. based trade association that represents over 400 international brands, detailed major flaws in the proposed ICANN program that could give rise to virtually any word, generic or branded, becoming Internet top-level domains (TLDs). By ICANN's own estimates, its program could mean 300 new TLDs in the first year alone with authorization for up to 1,000 in each following year. The ANA argues that the program is economically unsupportable and likely to cause irreparable harm and damage to the Internet business community in general. By means of this letter, the ANA with the assistance of Reed Smith, kick starts a serious effort to prevent billions of dollars of harm to brand owners around the world and return ICANN back to the negotiating table by any means necessary.

To learn more about generic top-level domains, read Reed Smith's Client Alert.

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Last year, Rimmel London was criticised for its “1-2-3 Looks Mascara” television and magazine ads when the Advertising Standards Authority deemed in its adjudication that the use of lash inserts on model Georgia Jagger exaggerated the effect achievable from the use of the product alone and the disclaimer “Shot with last inserts” was insufficiently clear in providing information.

In response to similar complaints about use of eyelash inserts, hair extensions and airbrushing in cosmetic advertising the Committee of Advertising Practice and the Broadcast Committee of Advertising Practice have published new guidance designed to educate advertisers in the cosmetics sector and prevent misleading and exaggerated claims about the effect a product is capable of achieving.

The CAP Help Note, "The Use Of Production Techniques in Cosmetics Advertising", draws a distinction between the use of obvious exaggeration that is not likely to be taken literally, the effect actually achievable by the product, and the exaggeration which consumers interpret as begin indicative of a product’s capabilities. Consequently, forthcoming ads for mascara may use eyelash inserts to fill in natural gaps in the lash line but not to create a lengthening or volumising effect beyond what can be achieved by the mascara on natural lashes.

Post-production airbrushing will also be scruintised to avoid misleading consumers on the apparent performance of the product, and advertisers may no longer be able to remove or reduce the appearance of lines and wrinkles, add highlights and shine or remove ‘fly-away’ hair. The Help Note further reiterates the importance of advertisers continuing to document and retain appropriate evidence to demonstrate any research, styling and re-touching, as required under the Codes, and also clarifies that the use of qualifications and disclaimers will not excuse otherwise disallowed activities. Disclaimers and qualifying statements should only be used for adding clarity and must be legible and appropriately placed. This comes at a time when the cosmetic industry is possibly already turning a marketing corner. In the US last month, French cosmetics brand Make Up For Ever launched the world’s first unretouched make-up ad campaign and in the UK both Maybelline’s and Maxfactor’s TV ads have taken a deliberate move towards a more natural setting. As our industry becomes more and more transparent, it remains to be seen whether this new guidance will initiate a decline in highly stylised ad campaigns in favour for the natural look. Please contact a member of the ReACTS team for further information and assistance with your advertising.

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The wait is finally over... Hot on the heels of yesterday's launch of product placement onto UK television, today marks another dawn of a new age in UK advertising. As of today, Tuesday 1st March 2011, the regulatory remit of the ASA is extended to cover online non-paid for space and pages under the control of advertisers. This means that the CAP Code for non-broadcast advertising, which previously only applied, in an online context, to advertising in paid-for space, such as pop-ups and banner ads, will now regulate promotional activities on companies' own websites and on sites such as a brand's official Facebook page, Twitter feed or YouTube channel.

It remains to be seen how the ASA will manage, if at all, to police its new regime, considering the enormity of this task and the limited funding available. But the controversial new sanctions it has the power to impose on infringing advertisers should not be sniffed at.  

Our own Marina Palomba shares her thoughts on this groundbreaking new development in MediaWeek today.

Please see our Ad Guide for further information about how this will affect our industry, or contact a member of the ReACTS team.

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Today (Monday, 28th February 2011) sees the introduction in the UK of product placement in television programmes. Of course, product placement is not a new phenomenon here in the UK and has existed in feature films, gaming and certain imported television programmes for many years. Nevertheless, today marks something of a watershed for the UK television industry.

Detractors will point to Ofcom's research which suggests that product placement may only be worth £25m a year. They will also flag the various restrictions contained in the new rules which, for example, prohibit alcohol and products that are high in fat, salt and sugar being used for product placement.

Those in favour of product placement believe that it could be worth as much as £100m a year within the next few years and will point to territories such as Australia and the United States where product placement now accounts for 5% of the total television advertising market. They will also note the development of digital technology which allows products to be placed into programming at the post-production stage which also opens up the possibility of different products being placed into different markets.

In our client alert we examine the new rules in detail.
 

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115 million viewers. $3 million for 30 seconds of airtime. $210 million total advertising spend. Forget the Green Bay Packers and the Pittsburgh Steelers slugging it out for the Vince Lombardi trophy, the real game was being played in the Super Bowl’s commercial breaks.

Super Bowl XLV, like its predecessors, produced some very well received ads. An ad for the Chevrolet Camaro became the most viewed ad of all time according to Nielson, whilst Volkswagen’s Darth Vader “The Force” introduced the new Passat to a worldwide audience. Nielson's research showed it to be consumer’s favourite Super bowl advert. An extended cut of the VW ad has been watched by over 20 million viewers on YouTube, and has generated over 18,000 comments. Chrysler’s Detroit ad for the Chrysler 200 featuring Eminem, has had over 3 million hits on YouTube and has generated over 10,000 comments.

However, one of the pitfalls of such prominent advertising campaigns is the damage caused if a promotional message fails to hit the mark. Not every advertiser scored a touchdown at the Superbowl. Groupon’s Tibet ad has faced criticism from China and the Free Tibet movement. The ad features an actor speaking over landscape shots of Tibet: “The people of Tibet are in trouble, their very culture is in jeopardy.” Then the camera cuts to a Chicago restaurant: “But they still whip up an amazing fish curry. And since 200 of us bought at Groupon.com, we’re each getting $30 worth of Tibetan food for just $15 at Himalayan restaurant in Chicago.” This arguably poor taste advert appeared during the Super Bowl along with two Groupon ads featuring comparisons between deforestation and half price bikini waxes and whaling and half-price whale watching.

Groupon’s ads highlight how brands are keen to explore new ideas and concepts in order to establish a unique brand identity. But pushing the boundaries can be a risky practice. In the UK, a controversial ad similar to that run by Groupon, may fall foul of the advertising codes. Rule 4.2 of the BCAP Code states “Advertisements must not cause serious or widespread offence against generally accepted moral, social or cultural standards.” Advertisers are therefore urged to tread carefully before employing such shock tactics to promote their brands.

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It comes as no surprise that the Office of Fair Trading, (OFT) has confirmed that on line marketing and PR practices that do not disclose the fact they include paid for promotions are deceptive and a breach of the Consumer Protection regulations, (CPRs). ReACTS has been advising marketers to beware for some time about such practices, and the issue is covered in our Ad Guide on Social Media.

The latest announcement comes as the OFT investigated a company called Handpicked Media and found that it had broken rules of disclosure by purchasing  blogposts and tweets for sponsored promotions without disclosing the fact clearly. While the OFT may not wish to instigate a clamp down on this sort of activity itself  but the ruling underlines clearly the law in this area and strengthens the hand of the ASA when it takes over self regulation of promotional messages on the Internet in March 2011.

In its press release The OFT's has now stated unequivocally that  " We expect on line advertising and marketing campaigns to be transparent so consumers can clearly tell when blogs, posts and microblogs have been published in return for payment or payment in kind. We expect this to include promotions for products and services as well as editorial content.'

There are hundreds of sponsored blogs, tweets, viral films, and use of brand ambassadors which hide the fact that these individuals are being paid to comment on products and services. Being transparent is crucial to protect the reputation of your brand and ensure compliance with the law.  

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This month Apple starts to roll out its iAd mobile ad network in Europe. The service will go live in the UK first, with launches in France and Germany early next year and other countries throughout 2011. European launch partners will include Renault, Nespresso, Citi and Evian. iAd will offer advertising inside apps initially on the iPhone and iPod Touch with plans to incorporate the iPad in the future.

iAd launched in the US earlier this year and Apple estimates 21% of the total US mobile ad spend for the second half of the year will be spent on iAd campaigns. The Wall Street Journal has painted a more downbeat forecast. It claims that only 2 of the 17 launch partners in the US (Nissan and Unilever) managed to run campaigns in July, with only three more running campaigns in August. Some of perceived reasons behind such a low initial take up is the cost of approx “£600,000 plus per campaign” and, Apple’s “tight control on the creative aspects of ad-making”. These requirements mean only the most “determined and richest brands” can afford an iAd campaign. Agencies and brands have called for the cost of a campaign to be reduced to around £100k and for more tracking data to be provided. Currently “you have to trust the data Apple send you”. It remains to be seen whether Apple will loosen their control or if their rivals will be able to capitalise on this. Google’s AdMob and Millenial Media are believed to have adopted a more flexible approach, varied their prices to brands and allowed advertisers to run “test campaigns”.

Despite these teething issues, iAd has received positive feedback from Nissan, who reportedly spent $1m on a campaign for the Leaf, their new electric car. The company claimed their iAd campaign had “five times the clicking through rate of their normal online campaign”. Only time will tell if iAd will dominate the mobile ad market. However, as brands and agencies embrace this growing market it is essential that they ensure that their campaigns are delivered effectively and efficiently.

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At last, common sense has triumphed with the Information Commissioner's Office (ICO) issuing a press release confirming that the Data Protection Act 1998 does not prevent family and friends from taking photographs at school concerts or plays this Christmas, but that doesn't mean little Johnny can appear in the next sweetie ad!

The ICO emphasised that photographs simply taken for the family album were exempt from data protection laws. The revised guidance for schools and local authorities gives advice on taking photographs in educational institutions, and explains that the Act is unlikely to apply in most situations where photographs are taken by parents in schools. What advertisers need to realise is that while the UK does not have image rights as such, therefore allowing the use of people's image in advertising without consent in certain circumstances, the use of children's images in a commercial context is extremely risky and unwise. This advice may seem like common sense too but image rights and 'rights to publicity' are a complex legal area.

For information on the use of celebrities and ordinary folk as well, please see our Guide.

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Ordinary Joes, footballers and even members of the clergy have all got themselves in hot water when making comments on Social Media sites. Twitter is on course to have 200 million users by the end of 2010. There are currently over 50 million tweets of 140 characters or less each day. However, as multinational corporations, advertisers and members of the public embrace this service, a note of caution should be sounded. Paul Chambers’ lawyers are currently preparing an appeal following his conviction for “menace”, after he tweeted “Cr*p! Robin Hood airport is closed. You've got a week and a bit to get your sh*t together otherwise I'm blowing the airport sky high!!”. Paul has maintained this tweet was simply a joke but to date this ‘joke’ has led to a criminal conviction, with fines and costs of approximately £3,000 (or around £22 per character). Footballer Darren Bent landed himself with a fine of £80,000 from his then employer Tottenham Hotspur FC by posting a tweet directed at the club’s chairman to “stop f**king around” regarding his transfer to another club.

However, social media faux pas are not just confined to Twitter. A Church of England Bishop was suspended recently and forced to apologise for making disparaging remarks about the impending Royal nuptials on his Facebook account. The Rt Rev Pete Broadhurst posted comments chastising the “nauseating tosh” surrounding the announcement of Prince William and Kate Middleton’s forthcoming nuptials. He also referred to the couple as “shallow celebrities”, complained the Royal Family was surrounded by “broken marriages and philanderers” and compared the marriage between Prince Charles and the late Princess Diana as a “disaster in slow motion between Big Ears and the Porcelain Doll”. The Bishop has since issued an apology expressing his “sincere regrets for the distress caused” by his remarks and was suspended from his post.

These events demonstrate the risks for companies with a presence online. Companies simply must have a detailed social media policy in place and train their staff in order to prevent their employees making damaging comments about the brand. An applauded example of a Social Media policy can be found here, but beware, even this did not prevent one of the biggest online reputational scandals of recent years. 

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Does the  Bribery Act, which comes into force next April 2011, mean the end of corporate hospitality? If so it will certainly hit the media industries harder than most, and yet the ad world has yet to really get to grips with the implications of this new legislation.

It is not that the industry is corrupt or based on back handers but simply that the media world flourishes in environments of congeniality and entertainment. However it seems the days when Lord Bell, (the famous MD of Saatchi and Saatchi in the 1970s), boasted of spending hundreds on caviar for his clients at one lunch alone, may be unwise in the future. While the Act is not intended to stop a free lunch the penalties for infringing one of the four offences are severe, and likely to focus the minds of any board of directors.  There  will be the possibility of a maximum jail term for bribery by an individual of 10 years and a company convicted of failing to prevent bribery could receive an unlimited fine.

Draft guidance published by the Ministry of Justice in September has only made matters worse. The Guide suggests  that all businesses will have to keep records of the hospitality staff receive and hand out.

The Telegraph described the proposals as an 'administrative nightmare'. While intended to focus on bribes to foreign officials the Act also applies to all British businesses, small or large. There is enormous criticism of the Guidance and calls for clarifications have been made prior to the Act coming into force in April.

Reed Smith support PACT (the Producers Alliance for Cinema and Television) in its call for the MoJ to clarify when a payment may be in the public interest, for example when paying a bribe in a foreign country to gain access to areas needed to carry out investigative journalism. PACT even point out that in some circumstances lives depend on bribes to get hournalists and film makers out of difficult and frequently dangerous situations. However other times the reality is more mundane but equally valid, filming in some jurisdictions will just not happen unless the 'local wheels of business' are oiled sufficiently. Try shooting an ad in some parts of India for example.

So what does the Act cover?
 

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If you can't beat them, join them. News this week that Facebook and Myspace, two of the biggest rivals in the social media arena, are to form a rather unlikely alliance. Myspace has dubbed the move its "Mashup with Facebook". The partnership will allow Myspace users to create a "personalised stream of entertainment content" by matching their likes and interests on Facebook to relevant Myspace topic pages, profiles, videos and other content in various categories such as TV and film, music and celebrities. It also allows users to engage with other fans who share the same interests, further promoting the concept of sharing, which is at the heart of social media. And this is about to be made even easier, since Myspace will reportedly soon incorporate the Facebook "Like" button onto its site. The collaboration appears to be engineered by both companies to combat the potential threat created by the launch of Apple's music-orientated social network, Ping, in September this year. Ping allows the estimated 160 million iTunes users to follow their favourite artists and friends to find out what music people are talking about, listening to and downloading. They can find out about tour dates, and share views on new material. According to Apple, the number of users on its new social media service rocketed to 1 million within 48 hours of its launch, so the threat to other social networks is apparently very real, although as Josh Halliday points out in The Guardian, this threat may ultimately be limited, since Apple's social network is restricted to users of iTunes.

The benefits for advertisers with the Myspace-Facebook alliance remain to be seen, but it goes without saying that with a potential combined audience of upwards of 600 million users worldwide, and growing, brand engagement opportunities seem endless. Lady Gaga currently has 32.6 million people "liking" her on Facebook, and 1.4 million friends on Myspace, not to mention her 7 million followers on Twitter. The major international brand Starbucks, has over one million followers on Twitter, and over 18 million "likes" on Facebook. In a week which saw the announcement of a new royal engagement, it is pertinent to note that even the Queen of England now maintains a vast presence on social media sites, running an official profile on Facebook, tweeting on her official Twitter page, and operating an official YouTube channel. It is essential these days for any and all brands to actively participate in the social media environment. But social media marketing is littered with legal and reputational pit-falls and advertisers need to tread carefully. Please see our AdGuide for further information on how to navigate this minefield and protect your brand online.

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The news that Prince William is to marry Kate Middleton has caused huge media excitement in the UK and across the world. Like all celebrities, Will and Kate attract huge interest and brands want to benefit from association with a major event, a royal wedding between the future King of England and a commoner being possibly the most important national celebrations in many years.

Many people will have no interest in the nuptials at all. Equally an overly extravagant ceremony and festivities, in what will be an inevitably difficult financial year for many in UK , may be unpopular. For the Royal family there will be a fine line between staging a show to boost morale amongst many Royal supporters, while not being seen to be spending too much money in a year when even the Queen has been forced to make financial cuts to her budget. Nevertheless, thousands are expected to want to join the celebrations of this fairytale romance and there is undeniable benefit to advertisers associating themselves with the story. The media frenzy will continue in the lead up the wedding and focus not only on the wedding day itself, but on all elements surrounding future Princess Catherine's life, what she wears, where she goes, what she likes to buy.

Advertisers and ad agencies beware however, there are a few important legal issues that restrict the use of Royalty and royal emblems and insignia, uniforms and private buildings in advertising.

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Governments across the world are increasingly under pressure from privacy advocates and some consumers to better regulate the use of personal data on line. Under Ed Vaizey's proposed plan announced last week, Google and Facebook and other social media networks and search engines would be required to sign up to a new code under which consumers would be able to get redress if they feel their privacy has been invaded.

The UK government is in discussions with the ICO, Information Commissioners Office, about how to develop such a code. What this will mean for advertisers using social media is as yet unclear though Ed Vaizey likened this idea to the mediation service offered by the Press Complaints Commission, which is both worrying and perhaps reassuring since the PCC is not renowned as particularly effective means of redress for consumers but is totally self regulated by the newspaper industry. Thus we might be led to assume that the search engines are being asked to run their own such self regulatory body. Given the lack of funds in the public purse one can assume this to be the case. No doubt Google will argue that it already has means for consumers to complain and seek redress. The cost of establishing and maintaining an independent body offering a complaints and mediation service would be colossal and without funding it seems unlikely this idea will take off in the immediate future.

What would it mean though for website owners and major brands?

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