CAP reignites e-cigarette debate by relaxing rules on television advertising

Last week the Committee of Advertising Practice (CAP) announced relaxed regulations for advertising e-cigarettes through television broadcasting. From November, advertisers will be able to show their e-cigarette products on television having previously been banned from doing so. The introduction of the new rules has largely been welcomed with many finding previous rules unclear and inconsistent. Health charity, Ash, claimed it was satisfied with the news overall but disappointed that celebrity endorsement and the offering of free samples had eluded tighter regulation.

This change will mean that broadcasting regulations mirror the less restrictive rules on advertising e-cigarettes across all other media platforms. However, advertisers are prohibited from targeting children and young adults with bans on the usage of anyone under the age of 25 enjoying such a product or indeed playing a significant role during an advert, and on any association of e-cigarettes with current youth culture. In addition, brands may not use advertising to encourage non-smokers or non-nicotine users to buy their product.

The advertising sector has been keeping a close eye on developments regarding e-cigarettes over the course of 2014 with ReactS reporting on the ASA's ban of a Leolites advert in August. With the rules on television ads to be aligned with those across other forms of media, TV adverts for products which either claim that their product has health benefits or imply that this is the case (as Leolites' slogan did), and are not licensed as medicine for nicotine replacement therapy will similarly be forbidden.

Nevertheless, watch this space, since rules are expected to be tightened in the future as the EU prepares to announce controversial legislation which will add further scrutiny to potentially noxious e-cigarette promotion.

International Food and Beverage Alliance agrees new restrictions on advertising to children

The International Food and Beverage Alliance (IFBA) has delivered an open letter to the World Health Organisation (WHO), voluntarily pledging to cease marketing unhealthy food to children by 2016. The IFBA's members include some of the world's largest food and drink companies including PepsiCo, Nestle, Kellogg and Unilever.

The restriction is based upon a set of 'better for you' nutritional criteria, and products that do not adhere to these criteria will not be marketed to children under 12. Whereas previously these criteria were only applied to TV, print and online advertising, they will now be adopted on all media types including cinema, product placement and other forms. This includes adverts surrounding licensed characters, celebrities and movie tie-ins, techniques which are primarily directed at children under 12. However, this will not apply to characters integral to a brand, such as Frosties' Tony the Tiger.

These 'better for you' criteria will be adopted in a harmonised manner across all the IFBA companies and their global operations. The criteria have previously been in effect in Europe, the US and Singapore.

The restrictions form part of a wider range of voluntary and self-imposed commitments which have been developed in partnership with the World Federation of Advertisers. These further commitments are included in the letter to the WHO and comprise the following:

• Product formulation and innovation - a focus on increasing the health of IFBA products and promoting healthy food choices;

• Consumer information - the adoption of consistent nutrition labelling on a global basis, which aims to provide clear, fact-based information; and

• Promotion of healthy lifestyles - through the increased support of healthy-eating projects and research within the countries that the IFBA members operate.

The WHO is currently assessing the commitments and its response. Meanwhile, initial responses from other commentators have been mixed.

Stephan Loerke, MD of the World Federation of Advertisers has said that "the major food and beverage companies have strict controls in place on how they communicate with younger audiences," and that "this latest strengthening of the IFBA global policy demonstrates the extent to which IFBA members are taking their responsibilities seriously when it comes to marketing to children."

ASA bans two more American Apparel ads

The ASA has banned two ads displayed by US clothes retailer, American Apparel, which it says are "offensive and irresponsible" and in breach of CAP Code rules 1.3 (responsible advertising), 4.1 (harm and offence) and 5.1 (children). This latest adjudication is the sixth time in just the last two and a half years that the retailer has had an ad banned by the ASA.

The infringing ads (viewable here) both involved photographs of a female model in a skirt, with her buttocks and/or crotch on show but upper body obscured. One of the photos was displayed on the retailer's website and the other on its UK Instagram page. The ads sparked considerable outrage on social media and although they were removed by the company, the ASA investigated following two complaints that the ads were offensive and irresponsible on the grounds that "they were overtly sexual and inappropriate for a skirt advertised as school-wear".

In its defence, American Apparel argued that the model was 30 years old and was "happy, relaxed and confident...and not portrayed in a manner which was vulnerable, negative or exploitative". It also argued that the ads were not displayed in print or conventional media and that because the brand was well known for its provocative images and ads, the fans and customers who followed the company's social media pages and accessed the website had 'opted in' to see images consistent with its branding.

However, the ASA considered that the pose of the model meant that "the focus was on her buttocks and groin rather than the skirt" and that the images imitated voyeuristic 'up-skirt' shots which "had the potential to normalize sexual predatory behaviour". The ASA therefore considered the images to objectify women and were "sexist and likely to cause serious and widespread offence...irrespective of whether consumers had 'opted in' to marketing communications". In addition, the obstruction of the model's face meant that it was impossible to determine her age and, given that the ad was associated with the retailer's "School Days" and "Back to School" ranges, "it was likely that those who viewed them would understand that the model was, or intended to appear to be, a schoolgirl". The ASA therefore concluded that the ads "had the effect of inappropriately sexualizing school-age girls and were therefore offensive and irresponsible for that reason too".

As well as banning the ads from re-appearing in their current form, the ASA has also warned American Apparel to ensure that its future advertising "was prepared with a sense of responsibility to consumers and to society".

New focus for the ASA

The ASA has a new strategy for regulating ads, meaning it won't always wait for complaints before acting against an offending brand. While the ASA has always had the power to take action itself without having to receive complaints, it's clear that the regulator is now planning on taking a more proactive approach to enforcement.

Following crack-downs on advertising fast foods, pay-day loans and advertising directed towards children, these areas will be prioritised at the expense of lower-order violations of the advertising codes.

Chief executive Guy Parker stated that for many complaints, the ASA "will not be providing the level of service we are at the moment".

Parker continued: "Complaints don't perfectly correlate with the problems that are out there and we know our complainants are not perfectly representative of the Great British public". "There are probably issues we are not addressing to the extent we should because they are not coming through in our complaints bag."

For more, read Marketing Week's article here.

ASA Stubs Out Another e-Cigarette Ad

The ASA upheld a decision today concerning a campaign for e-cigarettes brand "Leolites" featuring the slogan: "E-CIGARETTES HAVE EVOLVED. LEOLITES.COM. LOVE YOUR LUNGS."

The ASA considered that this slogan would likely be viewed by consumers to be a positive health claim, and judged it to be misleading. The brand owner contested this, and held that the slogan makes no reference to any health claim, and that the phrase "love your lungs" does not imply giving health benefit to the consumer. It argued that: "common sense showed that 'Love Your Lungs' should not be taken as an implication that the product was harmless or beneficial to health". The ASA disagreed, noting that: "consumers, particularly those who were existing smokers, were likely to interpret the claim 'Love Your Lungs' as meaning that Leolites e-cigarettes contained properties that were not harmful to their lungs or that they would experience an improvement in the health of their lungs if they used Leolites products".

The ASA also considered the phrase "e-cigarettes have evolved" in the slogan, and found that the wording of the slogan could be seen to suggest that the Leolites product is less harmful to users' lungs than competing e-cigarette or tobacco brands. As a result, The ASA found the ad to be in breach of the CAP code on the grounds of misleading advertising. The ad must not appear in its current form.

E-cigarettes is a growing industry and advertisers of these products are facing increasing regulatory scrutiny. We have seen a number of adverse adjudications on the subject so far, and as e-cigarette advertising becomes all the more commonplace, we should expect to see a lot more cases like this in the future. Following CAP's consultation on e-cigarettes earlier this year, the industry is still waiting for further guidance and potentially new rules for advertisers.

Sobering Action: Immediate Ban For Irresponsible Drinking Ad

The ASA has taken the "unusual step" of immediately removing an ad by a company called Koosday for a club night featuring a man slumped against a car with the text "I DON’T WANT TO DIE SOBER". The ad appeared on car bonnets and prompted a complaint that it irresponsibly linked alcohol with driving.

The ASA was concerned (perhaps unsurprisingly) that "the ad was seriously prejudicial to the general public on the grounds that it was irresponsible and harmful in linking alcohol consumption with driving – particularly because it had been placed on cars belonging to university students and was likely to be seen by other students when parked on campus – and encouraged excessive drinking". In exceptional circumstances, the ASA is able to take interim action and have ads immediately amended or withdrawn pending investigation (as it did earlier this year with the Paddy Power Pistorius advert that we blogged about back in March 2014).

The ASA discussed the importance of responsible alcohol advertising in one of its recent "hot topics" and reiterated the robust approach it takes in ensuring the rules are complied with. It reminded advertisers that the UK advertising rules for alcohol are extremely strict and are based on evidence that points to a link between alcohol advertising and people’s awareness and attitudes to drinking. In particular, alcohol ads must not be directed at people under 18 or contain anything that is likely to appeal to them or link alcohol to irresponsible behaviour, social success or sexual attractiveness. The TV and radio advertising rules also impose tough controls on the placement and content of alcohol advertising.

The ASA announced that it has launched a fast track investigation in connection with the ad and will publish its findings shortly.

Native Advertising Once Again In The Spotlight

As we have previously reported here, native advertising is intended to form a part of users’ online experiences, aiming to engage and compel with minimal disruption. Often the content of native advertising is high quality, reaching out to an audience’s wants and needs, sometimes going viral. Clearly marketers are working within divergent boundaries; creating appealing and intelligent content whilst simultaneously being careful not to camouflage the content so well that consumers are misled about its origin and purpose.

Last week the ASA (the Advertising Standards Authority) upheld complaints about a banner ad on newspaper The Independent’s website, ran by content discovery company Outbrain. Outbrain generates paid for links to recommended third party content, or a publisher’s other content, based on user patterns. The recommendations can sit as a panel ad at the end of an article on a publisher’s page. The complaints were over whether or not the advertising, which showed images and text under the title "You may also like these", was identifiable as marketing.

Outbrain confirmed that they did not own the websites where the banners were placed and the website owners had control over the ‘look and feel’ of content. They said that the industry standard of including wording such as "you may also like these" or "recommended by" appearing next to their logo would identify the ads to most Internet users as promoted content.

The ASA disagreed with this approach and said that some consumers would not necessarily realise that the different recommendations formed part of the same ‘panel’ of ads, they might not notice the ‘recommended by’ text and they might not realise that the logo linked to further information. The ASA therefore unsurprisingly held that the banners in their current form were not sufficiently obvious to ensure that consumers were aware they were viewing marketing communications, and ruled that the ads in their current form were misleading.

Given the above, it’s easy to see how it’s tricky to get native advertising right. The industry press frequently reports of advertisers being caught out in our new digital era by not making it clear to consumers where content is paid for. The Committee of Advertising (CAP) even published Guidance in conjunction with the ASA on sponsored communications to clarify some of the grey area, back in 2012. The ASA’s message is again that all promotional activity should clearly be identified as such.

The Colour Purple: Cadbury loses battle to register its signature purple shade

Cadbury has lost its Supreme Court battle to register as a trade mark its iconic colour purple (known as Pantone 2685C), ending a 10-year legal battle between Cadbury and its competitor Nestlé. The UK Supreme Court has refused Cadbury’s application to appeal against an October 2013 Court of Appeal decision which ruled in Nestlé’s favour, meaning that Cadbury has now exhausted all possible avenues of appeal in the UK.

Cadbury first filed a UK trade mark application for the purple shade in 2004. The application was allowed and published in the Trade Marks Journal in 2008 but could not be registered due to opposition raised by Nestlé. This set into motion a chain of lengthy proceedings. First, the UK’s Intellectual Property Office (IPO) dismissed Nestlé’s claims that the colour was not distinctive to Cadbury. Nestlé then took the case to the High Court. Despite limiting the category of goods covered by the trade mark application to milk chocolate only, the High Court dismissed Nestlé’s claim on the basis that Cadbury was able to show that that mark had acquired a distinctive character over the 100 years it had been using the shade.

Nestlé continued the case to the Court of Appeal where ruling was finally made in its favour. The Court of Appeal considered that Cadbury’s application for registration did not sufficiently define its rights to the colour and that the application amounted to an attempt to register ‘multiple signs’. Cadbury filed an application to the Supreme Court to appeal the Court of Appeal’s ruling but the court determined that Cadbury’s application to appeal did not raise an arguable point of law and would give an unfair competitive advantage to Cadbury without the required clarity, objectivity and precision needed for a trade mark.

Cadbury has confirmed that there are no further avenues for appeal but this is certainly not the end of Cadbury’s efforts to protect its brand. Cadbury may choose to file new trade mark applications which more clearly define Cadbury’s alleged rights to the colour purple in order to overcome the Court of Appeal’s concerns about Cadbury’s original imprecise definition of rights. Aside from formal trade mark registration, Cadbury may still be able to rely on the common law principle of ‘passing off’ to stop competitors from using the colour purple when applied to the packaging of milk chocolate products. 

ASA Withdraws Pistorius Ad: Joke's On You, Paddy Power

 Last week, the ASA ordered Paddy Power to remove a newspaper ad offering "money back" on bets if Oscar Pistorius is found not guilty of murder. The ad showed a photograph of the South African Paralympian superimposed on a statue of an Oscar award, with the words: "It’s Oscar Time. Money back if he walks. We will refund all losing bets on the Oscar Pistorius trial if he is found not guilty". The ASA received 5,200 complaints about the ad, making it the most controversial campaign of all time. It surpassed that of the Kentucky Fried Chicken ad which was previously the most complained about ad with 1,671 complaints and featured call centre workers singing with their mouths full of KFC products.

As a result of the "unprecedented number of complaints", the ASA has taken the "unusual step" of withdrawing the ad with "immediate effect" pending an investigation. It said it was investing whether the ad is "offensive for trivialising the issues surrounding a murder trial, the death of a woman and disability". The ASA is also considering whether the ad "brings the good reputation of advertising generally into disrepute". The campaign was launched to coincide with the Oscar ceremony in Los Angeles and the first day of Pistorius’ trial in South Africa. Prosecutors allege that Pistorius, 27, shot his model and reality TV star girlfriend through the bathroom door at his home on Valentine’s day in 2013. Pistorius insists he mistook her for an intruder.

The influx of complaints has, to some degree, been fuelled by the online petition on which has attracted over 126,000 signatures. Protesters claim that the "death of a woman should not be used as a publicity stunt" and call it a "disgusting low". Paddy Power’s chief executive, Patrick Kennedy, told one newspaper that the company was justified in running the bet because it was the "most talked about and reported story of the year. This is about the trial not about the murder". The ASA has said that the ad will remain out of circulation in all UK media until the investigation, which is being "fast-tracked", is concluded.

Non! - ASA Bans Kronenbourg Ad For Over-Emphasising French Connection

Kronenbourg’s advertising campaign starring French footballing icon Eric Cantona has been banned. The ASA investigated two separate ads for the same campaign; a TV ad and a print ad. The TV ad explained how French men were lauded like "British footballers" for growing the French sourced Strisselpalt Hop, a key ingredient of Kronenbourg. The print ad also expressed that "if you find a better tasting French beer, we’ll eat our berets".

Two complaints suggested the ads were misleading as they imply that Kronenbourg is brewed in France, rather than the UK. Heineken, the owner of Kronenbourg, dismissed such claims by explaining that the brand ownership, history, heritage and origins made Kronenbourg an "inherently French beer" and the Strisselpalt Hop is solely sourced from Alsace, France. In addition, Kronenbourg ads had focused on its French origins for many years.

Breaching BCAP Code rules 3.1, 3.2 (misleading advertising), 3.9 (substantiation) and 3.10 (qualification), the ASA held that the TV ad’s emphasis on a connection to France was sufficient for consumers to believe the entire manufacturing and brewing process took place in France. The ASA noted that, whilst the Strisselpalt Hop is sourced from France, it does not constitute a significant proportion of the Kronenbourg recipe. The ASA also held that the print ad breached CAP Code rules 3.1, 3.3 (misleading advertising), and 3.9 (qualification), declaring that the "brewed in the UK" small print, "contradicted, rather than clarified the main message of the ad".

Heineken has submitted an appeal. Should the ASA ruling be upheld, it may have further consequences for similar foreign brands which produce their goods (or part of them) in the UK.

Super Ads for the Super Bowl 2014

Once again advertisers triumphed with their creativity in the Super Bowl ads, this year costing them a reported $4million per 30-second spot. We saw Don Cheadle, his llama, and a ping-pong playing Arnie for Bud Light’s “Epic Night”, and speaking of A-list celebrities, how about Bruce Willis hugging it out for Honda? Sodastream avoided 2013's competitor-targeting controversy by editing its alluring ad featuring Scarlett Johansson. An earlier version purportedly had the star cheekily naming two major drinks brands, but this was lost in the final edit. Speaking of which, Coca Cola and Pepsi both ran their own epic ads… Which is your favourite?

In what must have been some serious licensing arrangement, Toyota teamed up with The Muppets to showcase the spacious interior of its Highlander model. Axe played with politics with its beautifully shot dramatic ad, fully embracing the age-old adage to 'make love not war'. Radio Shack took us down memory lane to the 80s with a cast of familiar faces and references, seeking to change consumers' perception of and to revamp its brand. Kia’s parody of a movie classic ends up taking a completely surreal turn... Who saw that coming? And speaking of surreal, how about Ellen’s fairytale ad for BeatsMusic?

Once again, there were some great soundtracks on show. Chevrolet's 'Romance' ad for its new Silverado used a 70s classic which was very in-keeping with the ad's storyline. Of course other car brands were also on top form; check out Volkswagen's magical "Wings".

Finally, in an innovative move, and perhaps the most creative placement of all, Esurance made a point of running its ad AFTER the big game, saving it $1.5m in media spend, which it subsequently gave away to one lucky customer in a Twitter sweepstake…

Botox Ads Frozen By The ASA

Following a complaint from the Independent Healthcare Advisory Service, the ASA has banned botox ads by Dermaskin and HB Health of Knightsbridge. The websites of each advertiser promoted the use of botox, stating it has the ability to make users appear younger and it leads to "astonishing results". The ASA has ruled that such language is inappropriate and explained that such advertising campaigns must "stick to the facts". Ads must be presented in a "factual and balanced way" and correctly reflect the content of the applicable "summary of product characteristics".

The only cosmetic use of botox in the UK which is permitted without prescription is in relation to its application to vertical lines on the forehead between frown lines. Beyond such use, botox is only available from doctors by prescription. Any advertising which promotionally markets botox as a beauty treatment will breach the CAP and BCAP Codes. The ASA intends to use this ruling as a precedent to all online advertisers of botox products. With a product that could be harmful to health, the ASA will be on the lookout for any ads which link botox to beauty.

CAP has published advice and guidance on anti-ageing and botox claims viewable here.

Lucozade Sport Ad Fuels Complaints

 The ASA has this week upheld the 63 complaints it received about an ad for Lucozade Sport, featuring professional rugby player Gareth Bale. The ad featured two groups of men running on treadmills, the water drinking group gradually dropping out of the activity whilst the Lucozade Sport drinking group continuing to run. The tagline boasted that Lucozade Sport "hydrates and fuels you better than water".

Ads for carbohydrate-electrolyte drinks must comply with health claims authorised under EU Regulation, and "hydrates and fuels you better than water" is not an authorised claim. The ASA noted that companies using "unauthorised" claims could be afforded some flexibility if the reworded claims were likely to have the same meaning for consumers as the authorised health claims, and the new phrases would aid consumer understanding. For example, reworded claims may aid understanding where there are linguistic or cultural variations.

The advertiser argued that the phrase "hydrates and fuels you better than water" was synonymous with and supported the authorised claims "carbohydrate-electrolyte solutions enhance the absorption of water during physical exercise", and "contributes to the maintenance of endurance performance during prolonged endurance exercise". However, the ASA said that narrowing the claim "contributed to the maintenance of performance" to read "fuels" was not more comprehensible for consumers, despite it conceivably being "common sense" that Lucozade Sport would "fuel" consumers better than water (as water does not contain calories). The ASA also noted that despite the voice over in the TV ad making reference to the exercise being extensive and camera shots of clocks showing that the exercise had taken place over a long period of time, the passage of time was less evident in the poster advert. Therefore the ASA did not consider that the average consumer would infer that the health benefits of Lucozade Sport would only be gleaned during prolonged endurance exercise.

We would advise advertisers to only deviate from authorised health claims where the reworded phrase is a clear alternative expression of the authorised claim. This is a tricky area and  it is essential that the language used is appropriate and in-keeping with the requirements. For further discussion, please contact us.

ASA Administers First Aid Ad Ban

In a rare move, the ASA overturned at the end of last year its previous decision to reject a complaint about the accuracy of data used in a St John Ambulance ad, and has banned the ad in its current form, after an independent review. The ad (watch it here) was the 10th most complained about of 2012 after the ASA received 144 complaints in that year. In July 2013, the ASA rejected a complaint by the fact-checking organisation Full Fact about the accuracy of the data cited in the ad, which claimed that "First aid could help prevent up to 140,000 deaths every year. The same number of people that die from cancer". Full Fact appealed the decision and the ASA has now overturned its original ruling after further investigation and deemed the claim to be misleading. Read its reasons for doing so here.

St John Ambulance is considering whether it can take legal action over the ruling after Steve Conway, Director of Brand Marketing, Communications and Fundraising at the charity responded, "the ad was approved by Clearcast, who we worked with from the outset to ensure we were transparent and that it complied with the Broadcast Committee of Advertising Practice Code… Despite the ASA ruling that we can’t use the claim in advertising, we still stand by our analysis that first aid could help prevent up to 140,000 deaths every year." Nevertheless, with the ASA putting more checks and balances in place when assessing complaints about charity and public service adverts, we would advise advertisers to be ever more vigilant in ensuring all claims made in their advertising are capable of substantiation with concrete evidence, particularly where, in the case of such charity ads, there is such an important message to be conveyed.


Hard-Hitting RSPCA Ad Exterminated by ASA

The ASA has this week upheld complaints against an RSPCA ad that suggested badgers in cull areas would be "exterminated". The poster showed a picture of a badger, a bullet and a vaccination needle, asking: "Vaccinate or exterminate?" The ad’s text stated "The UK Government wants to shoot England’s badgers. We want to vaccinate them – and save their lives". After receiving 119 complaints, including from Conservative MP, Simon Hart, the Shadow Minister for Rural Affairs in Wales, Antoinette Sanbach, and the Farmers’ Union of Wales, the ASA deemed the word ‘exterminate’ misleading as "consumers were likely to interpret the claim…to mean that all badgers would be eradicated in cull areas". In truth, a target has been set for marksmen to kill at least 70% of badgers in each specific cull zone, therefore leaving the exact figure uncertain. The ASA has stated that RSPCA should not use the ad again in its current form.