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

The Office of Fair Trading has just (May 2010)  announced the result of its

study into on line targeting of advertising and pricing and calls for more transparency to allay users fears about privacy and misuse of personal data. The OFT has indicated that web users need to know when they are being served targeted ads and be provided clearer ways to opt out and that if the industry does not improve self regulation the OFT and the Information Commissioners Office will increase external regulation. 

Why does this matter? The behavioural advertising sector is already worth and estimated £64-£95 million and is growing. The benefits to advertisers of reaching targeted audiences are huge. A failure to adopt good practices, such as set out in the IAB's Good Practice Principles could lead to legislative intervention and restrictions on behavioural advertising and even the adoption of an opt in regime rather than a opt out system as presently exists.

One recommendation by the OFT is to "increase transparency to consumers by developing 'clear ad' notices alongside behavioural adverts including information about opting out". This is rather alarming and suggests that users might be served some sort of notice on their screens every time a targeted ad appears...what could be worse and more invasive! It also assumes the majority of Internet users are fools. Clearly more needs to be done to educate users and for advertisers to fully comply with the IAB's  transparency recommendations but there is a concern that alarmist media and privacy advocates will lead to unintended consequences. 

For example on line publishing is financially unsustainable with the current model,  hence  shrinking news organisations and attempts to require paid for news services on line. Advertising pays for our diverse and free media , further restrictions could back fire leading to less choice, reduced services and poorer quality content. Interestingly the OFT's research discovered that many consumers were not concerned by behavioural advertising, and that any concerns that did exist would be greatly reduced if they were told it was happening and given control over the process.

"We found that attitudes to online targeted advertising are mixed with 40% of consumers holding neutral views, 28% disliking it and 24% welcoming it," said the report. "Concerns decreased when consumers were able to opt-out of behavioural advertising, and the associated tracking, if they wished. Around 40% of consumers said they would take some actions to prevent behavioural advertising (such as deleting cookies), although only a very small minority would reduce their internet usage to avoid it. Around 60 per cent would not alter their behaviour at all."

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 The ASA, in conjunction with the Code-writing body CAP, has today published its Annual Review for 2009. The Review includes a list of ads which received the most complaints in 2009. Topping the list was an ad from the Christian party, which ran with the strapline "There definitely is a God" on London buses. The ads were in response to the British Humanist Association's campaign, also on London buses, stating "There is probably no God. Now relax and enjoy your life". The Christian Party's ad received 1,204 complaints, making it the most complained-about ad in 2009 and the third highest of all time. It was not investigated by the ASA, however, as ads for political parties are not covered by the Codes and are therefore outside the remit of the ASA. The Humanist Association's ad came in at position 6 on the list with 392 complaints, but it was not investigated by the ASA as the claim was deemed to be an expression of the advertiser's opinion and not capable of substantiation anyway.

Other notable entries in the list were an ad for the Volkswagen Golf featuring graphic fight sequences in the style of The Matrix, which received 1,070 complaints and was banned before the 9pm watershed, an ad for Home Pride Oven Cleaner with the strapline "So easy even a man can do it", which received 804 complaints, but was not deemed by the ASA to be offensive, and an ad for Crunchy Nut Cornflakes spoofing the famous baby in a pram scene from The Untouchables, which received 323 complaints but was not deemed by the ASA to cause widespread offence or encourage harm to children.

The Review also details some significant rulings and investigations carried out by the ASA into areas such as advertising financial products, making health claims in ads for food and drink products, the use of airbrushing in health and beauty ads, and specifically focuses on alcohol advertising and advertising directed at children.

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An advertisement by Marie Stopes International aired on 24 May, has sparked controversy and fierce resistance from "pro-life" and religious groups and already generated more than 370 complaints within the first week after the broadcast. Marie Stopes is a provider of "clear, non-judgmental information" on post-conception advice services, and this will be the first advertisement of its kind to run on UK television, even though it has long been possible under the existing Advertising Codes for non-commercial organisations providing advice on such issues to advertise their services. Marie Stopes is a not-for-profit organisation which, it argues, does not promote abortion, but allows women to make confident and informed choices about their sexual health. Interestingly, the broadcaster running the advertisement, which will go out after the 9pm watershed, has taken the decision not to run it Northern Ireland, where abortion remains illegal.

During the review of the advertising Codes which took place over the last year, there was a great deal of pressure to prevent "pro-choice" organisations from being allowed to advertise in UK media. However, when the revised Codes were launched in March 2010, no firm decision had been taken on the subject, and it is still under discussion between BCAP and Ofcom. BCAP has announced that it will make a statement in due course. For further information about the revised advertising Codes, please see our Ad Guide.

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The London Organising Committee of the Olympic Games (LOCOG) launched their mascots for the 2012 Games this week. The mascots are one-eyed alien-type characters, designed specifically to appeal to children, thus reflecting the efforts made in the original London bid to focus on the legacy of encouraging children to participate in sport.

The Olympic mascot is named Wenlock, after the town of Much Wenlock in Shropshire, which inspired Pierre de Courbetin to launch the Olympic Games in 1896. The Paralympic mascot is named Mandeville, after the town of Stoke Mandeville in Buckinghamshire where the Paralympic Games were born.

These mascots will join the long list of protected Olympic symbols, emblems and logos. Advertisers, except official sponsors of the Games, should avoid using the mascots, or any similar character, in their advertising. To do so without permission from LOCOG would almost certainly infringe the London Olympic Association Right, which grants very wide protection to the Games, preventing non-sponsors from being in any way associated with the event, the details of which are described in more detail in our Ad Guide on the London 2012 Olympic and Paralympic Games.

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Social media marketing surges ahead as marketers recognise the value of targeted advertising and real engagement with consumers. In a survey of more than 1,000 marketers from around the world, Alterian found that 66% of respondents will be investing in social media marketing activity over the next year and as many as 40% said they would be using the DM budget to do so.

Commenting on the survey results Alterian CEO, David Eldridge, said, "2010 marks the start of the digital decade for marketing. Untargeted and irrelevant marketing techniques are now redundant and the results of this survey show many in the industry recognise this."

However advertisers need to be aware of the potential risks to brand reputation if things go wrong. Do you know your flog from your blog and what happened to Walmart when its fake blog was discovered? Read our guide to understanding and minimising risks of social media marketing.

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For many years, UK audiences, while watching episodes of American Idol, have been treated to images of Simon Cowell and the other judges sitting behind large red cups with pixellation over the Coca Cola logo. This is because, until now, product placement has been prohibited in UK television programming, but all that is set to change - no doubt to the relief of the technicians who had to spend their days pixellating the logos….

Under new Regulations, UK broadcasters and production companies will soon be allowed to commission and make programmes featuring paid for products. There are some restrictions, such as the fact that the advertiser cannot influence editorial control and that no placement can be given “undue prominence”. This is nonetheless a potentially revolutionary change for viewers and, perhaps, a new source of limited income for broadcasters.

Ofcom has yet to publish detailed guidance on how it will judge what is meant by “undue prominence” and how notification of product placement within the programme will be communicated to viewers. However, you can get up to date with the current changes by reading our Ad Guide.

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The rising power of major events holders and an analysis of present laws, and regulations protecting modern day sponsors

Does a rugby post and the words “support English rugby” imply that Fullers was an official sponsor of the English rugby team? The Advertising Standards Agency thought not and did not uphold a complaint by The Rugby Football Union1. However the situation in the UK and across the world is such that almost any association with a major event by non sponsors is bound to breach one law or regulation or another.

Click here to read our full Ad Guide on Ambush Marketing.

For more information, see our other Ad Guides on FIFA World Cup and the The London 2012 Olympic and Paralympic Games.

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Welcome! We are ReACTS, the Reed Smith Advertising Compliance Team, and this is our blog.

We hope this site proves to be a useful resource and information centre for advertisers and their agencies, and for others interested in the advertising and media industry.

The blog will keep you up to date with the latest relevant developments in the industry and with comment on recent cases and ASA adjudications. The blog will also be populated with in depth articles on specific subjects.

The site contains Ad Guides on a number of different areas of interest, such as Social Media marketing and marketing around the Olympics, which, while not amounting to legal advice, will provide users with a basic understanding of the important issues to consider in these fields.

We do encourage users to interact as much as possible with the blog, and we welcome your feedback.

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