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.

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 Change.org 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.

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.

Fuel For Thought - CAP To Clean Up E-Car Ads

Following an upsurge in the number of electric and hybrid vehicles, an increasing competitiveness in the market, and a corresponding increase in the number of complaints regarding the marketing of such vehicles, CAP has released a message of advice for advertisers of electric and hybrid vehicles.

The ASA reported that complaints received related to "the claimed efficiency of the car, the equivalent to the number of miles per gallon it can achieve, and to the emissions released by the car". CAP's note states that as ads for electric vehicles are less likely to be easily understood by a consumer than ads for a more conventional vehicle, information should be clear and unambiguous, especially when claiming such features as ‘zero emissions’.

One such complaint set out in the report concerned an advert’s fuel consumption and emission figures. The ASA noted that the claimed fuel consumption figures in the ad did not take into account the fact that the battery had been fully charged from mains electricity before the fuel consumption testing began; a point that, the ASA argued, could mislead consumers as to the fuel efficiency that they could expect from the car. To the ASA’s satisfaction, the advertiser amended the ad, stating that the fuel consumption figures were not necessarily what a user would achieve and that they had been achieved through a combination of battery power and petrol fuel.

Heeding the advice of CAP, advertisers of electric and hybrid vehicles should take care when expressing figures in their ads, and should not assume a level of consumer understanding above what is reasonable for a relatively new and rather technical field. Please contact a member of the ReACTS Team if you wish to discuss CAP's message or your electric vehicle campaigns.

Redbull's Titanic Ad Meets Icy Reception But ASA Says Not Tasteless

 The ASA has chosen not to investigate a recent Red Bull ad which purportedly makes light of the sinking of the Titanic, despite the ad receiving nearly 150 complaints. The television ad in question sees a crate of the energy drink being lifted onto an unspecified ocean liner. The captain questions the need for the drink, explaining that there is no need for wings on the ship. The crate is then lowered back on to the dock, revealing the name of the vessel – the Titanic. Complaints were received from outraged relatives of the deceased passengers as well as from Titanic Heritage Trust founder, Howard Nelson, who described the advert as "very offensive", "distasteful" and argued that "it shows gross disrespect to the memory of all those whose lives have been touched by the Titanic and have since been lost to us".

The ASA decided that the ad was unlikely to cause serious or widespread offence, and therefore was not in breach of Rule 4.2 of the BCAP Code, despite the number of complaints received. The advertising watchdog said, "Although the ad would be distasteful to some, it was unlikely to cause serious or widespread offence or be generally seen as making light of the lives that were lost in the disaster". The Austrian energy drink manufacturer has a history of prompting controversy, with a previous ad being canned in South Africa after the national advertising regulator was inundated with complaints. The ad showed Jesus walking on water.

Whilst not an entirely surprising decision by the ASA given the relatively small number of complaints, and concentrated nature of complainants on this occasion, it does provide advertisers with confirmation that certain historical events are not entirely untouchable, provided that they remain within the BCAP Code limits. It is often tricky to assess whether an ad could cause "serious and widespread offence" and potentially breach the Code, especially as the ASA is not restricted by precedent, and therefore we would advise that advertisers exercise caution and discuss their concepts with a member of the ReACTS Team.

ICO Adopts Enforcement Action Plan

The UK data protection watchdog, the Information Commissioner’s Office (ICO), has published its long-awaited guidance on the factors it will take into account when considering whether to initiate enforcement action for data protection breaches and what form any such action should take. Its Data Protection Regulatory Action Policy, comes in the wake of yet another serious data breach by a local authority, this time involving the leaking online of sensitive information relating to the care of vulnerable children. The local authority in question received a fine of £100,000 from the ICO for this breach. The ICO's Policy should assist organisations with understanding the enforcement process and the risks of non-compliance with the UK Data Protection Act 1998. See further comment and insight by Reed Smith Privacy and Data Protection Partner, Cynthia O'Donoghue on our sister blog, Global Regulatory Enforcement Law, here.

Love It Or Hate It: Using Animals in Advertising

Controversy arose again this week over the use of animals in advertising. The British public is famously protective of its furry friends, and the ASA often receives large numbers of complaints over the depiction of animals in ads, especially where there is any suggestion of possible mistreatment. One of the most complained about ads of the last few years featured a dog behaving confidently inside a car (singing, incidentally) but timidly outside it. The ad, from Volkswagon, attracted 733 complaints from viewers, who felt that the dog shown outside the car appeared to be in distress and that the ad could promote animal cruelty. Rule 6.3 of the BCAP Code requires evidence that an ad featuring an animal must not be broadcast without evidence that the animal has not been killed, caused pain or suffered distress. The ASA noted in that a vet had been present on set and had attested to the humane treatment of the dog during filming of the Volkswagon ad. It concluded that a singing dog was fantastical and that the ad was unlikely to promote animal cruelty. The ad went on to receive a Cannes Lions Silver Award that year.

Several other recent ads have attracted complaints where viewers have felt that the behaviour towards animals featured in the ads could result in harm to animals if copied in the real world. Again, there are provisions in the Codes with regard to advertisers promoting a sense of social responsibility. A John Lewis Christmas ad in 2010 which featured a dog outside in the snow, attracted over 300 complaints. In 2012, a Morrison's ad prompted 234 complaints for showing a dog being fed Christmas pudding, which apparently contains ingredients harmful to dogs if consumed in large quantities. Only a small amount was fed to the animal in question, which was seen to reject it anyway. Finally, Boots' 2012 Christmas ad featuring a child styling her dog's fur with a hairdryer, was also criticised (receiving 21 complaints) for promoting potentially harmful behaviour towards animals if such activities were emulated by viewers. The ASA rejected the complaints against all of these ads concluding that the animals did not appear to be in distress and that the activities portrayed on screen would be unlikely to be copied by viewers. In spite of the number of complaints received, the ASA has discretion as to whether it investigates a potential breach of the Code.

This week, national favourite Marmite faced a public backlash against its ad "End Marmite Neglect". So far, the ad has prompted over 350 complaints to the ASA. The ad spoofs animal rescue documentaries and features neglected jars of Marmite being rescued from the back of kitchen cupboards and taken to rescue centres to be rehoused with lovers of the product. The complainants have criticised the ad for trivialising the work of animal rescue charities and potentially condoning animal cruelty. Unilever, the owner of the Marmite brand, denies that it was its intention to cause offence and in fact has responded to the criticism by making a sizeable donation to the RSPCA. We await a decision from the ASA as to whether it will invesigate the ad for a breach of the BCAP Code. Meanwhile, the famous strapline for Marmite, "You either love it or you hate it", seems to also ring true for its current advertising.  

ASA Ruling Concerning Payday Loans Is Of High Interest

 The ASA has banned yet another advertisement for payday loans. Financial (UK) Ltd (trading as ‘FirstPayDayLoanUk’) was held by the ASA to have breached a number rules contained in the CAP Code by sending text messages to consumers, such as:

"Hi Mate hows u? I'm still out in town, just got £850 in my account from these guys www.firstpaydayloanuk.co.uk".  

Social Responsibility

A number of complaints centred on the social responsibility implications of the advertisement. The ASA found that the phrase "I’m still out in town" would imply to a recipient consumer that a loan had been spent on a social day out.

The social responsibility aspects of payday loans has the caught both the ASA and the OFT’s eye recently and so it is not surprising that the ASA considered that it was inappropriate and irresponsible to promote a social life funded by short-term loans.

Misleading Advertising 

The Code requires marketing communications to be clearly identified as such (Rule 2.1), and not to be misleading (Rule 3.1). Furthermore, the Consumer Protection from Unfair Trading Regulations 2008 also prohibits a business from falsely holding itself out as a consumer. 

The ASA held that, in breach of the Code, the advertisements were not clearly marked as marketing communications and indeed, in light of the informal tone, would likely be considered by consumers as personal messages. Interestingly the ASA’s decision was also influenced by the fact that FirstPayDayLoanUk had used a standard UK phone number to send the texts.

Comment 

The ruling compliments various other decisions and commentary made recently by both the ASA and the OFT concerning the promotion and marketing of payday loans. It appears that the social responsibility aspects are of particular concern and advertisers should take care to avoid common pitfalls when advertising in this highly regulated and contentious area.

Amazon Seller Swears No Breach Of The Code...ASA Disagrees

The ASA has upheld a complaint concerning a Christmas card which was offered for sale through the Amazon market place by the seller named smellyourmum.com. The front of the card contained wording incorporating a strong expletive which, although partly obscured using an asterisk, the ASA considered was likely to cause serious and widespread offence in breach of Rule 4.1 of the CAP Code.

While it is not particularly alarming that the ASA found that the appearance of the expletive would likely cause offence, it is interesting that the ASA considered that its jurisdiction extends to claims concerning the display of product items which were simply listed in a market place storefront, particularly where the wording in question was relevant to the name of the product and (as pointed out to the ASA by Amazon) where such product titles and images were not otherwise prohibited by applicable decency laws.

The ruling does not provide much detail concerning the nature of the product listing and whether it was paid-for or preferential in any way, however the introduction to the CAP Code specifies that it does not apply to: (i) point-of-sale displays (except those covered by sales promotion rules or the rolling paper and filter rules); or (ii) website content not specifically covered, including natural (rather than paid-for) listings on a search engine. The ASA did not consider this point in its ruling, although perhaps it might have argued that the listing is paid-for by way of commission for product sales.

Nevertheless, the ruling should be considered with care by online retailers who display products for sale through storefronts with potentially offensive wording or images. For further guidance on this issue and on other Code issues, please contact us.

ASA Supports The Mother Of All Christmas Ads

During the 2012 Christmas season, ASDA and Morrisons ran ads depicting mothers running errands, bustling around kitchens, preparing food, wrapping presents and attending Christmas plays. Complaints were made to the ASA on the basis that they were offensive and sexist because they reinforced outdated stereotypes of men and women in the home.

Morrisons responded to these claims by stating that its ad was a socially aware and thought provoking glimpse of the reality that faces many working mothers who bear the brunt of responsibility for Christmas preparations, and a "subtle and sensitive critique" which did not encourage discriminatory behaviour or treatment. ASDA acknowledges that its ad did not reflect universal experience, but pointed to its extensive customer research showing almost 2,000 mothers agreed with this depiction. ASDA’s ad also received complaints on the grounds that it could cause offence to single fathers, men who are in a primary domestic role and children who have lost their mothers, which appeared to be evidenced by the VO "behind every Christmas, there’s mum, and behind every mum, there’s ASDA".

The ASA considered the ads under Rules 4.1 (ads must contain nothing that could cause physical, mental, moral or social harm to persons under the age of 18), 4.2 (ads must not cause serious and widespread offence against generally accepted, moral and cultural standards), and 4.8 (ads must not condone or encourage harmful discriminatory behaviour or treatment), but the complaints were not upheld.

Perhaps most interesting about these adjudications is the ASA’s finding that the ASDA ad, which received over 600 complaints from members of the public, was not deemed to have caused "serious and widespread offence". The ASA accepted that such depictions were not indicative of everybody’s Christmas experience but they did represent the experiences of certain of the supermarkets’ customer demographics.

Regulator Knocks Gym's Advertising Into Shape

 We all put pressure on ourselves to get in shape in the New Year and whilst we often need a little push to do so, gyms should be warned about trying too hard to sign up new members. The Vauxhall branch of Gym Limited sent an SMS message to customers in April 2012 stating that 30 April 2012 was their ‘last chance’ to re-join the gym for £19.99 per month without being subject to the £20 joining fee. It then sent an email on 29 August stating that members had until midnight 31 August 2012 to re-join the gym for £19.99 per month without being subject to the £20 joining fee. Finally, it sent a further email on 26 September 2012 stating that customers had until midnight 30 September 2012 to re-join for £19.99 per month without being subject to the £20 joining fee and claim a free osteopathic assessment. The gym considered these to be separate and distinct offers which were truly limited in time. The ASA examined these offers in line with CAP Code rule 3.1 (misleading advertising), rule 3.31 (availability) and rule 8.2 (sales promotions) and found that the SMS offer was unlikely to mislead as there was a sufficient length of time between the SMS offer and the first email offer. However, it found that receiving the second email offer to re-join the gym without the joining fee less than one month after the first email offer which purported to expire on midnight 31 August 2012 would be contrary to consumer expectation. The ASA concluded that the first email offer implied an undue sense of urgency that it was the last chance to re-join the gym without the joining fee and that this was misleading. The lesson here for advertisers is to avoid placing undue pressure on consumers to make a purchase by implying that the offer is limited if such an offer becomes available again within a short space of time (here, less than a month later).

CAP Sizes Up January Detox Advertising

After many of us would admit to consuming one too many mince pies over the Christmas break, the inevitable flurry of diet and weight-loss products has started to invade the advertising space and remind us that summer is not too far away. Each year (and in particular the first few months of each year) the ASA is asked to consider numerous claims surrounding advertising which promotes weight-loss products and techniques in a misleading or irresponsible manner.In anticipation of such claims, yesterday the Committee of Advertising Practice (CAP) published a short, helpful guide of what it calls "do’s and don’t’s" for advertisers. It is certainly worth reading the guide in full but here are a few takeaway points: 

  • Don’t claim people can lose a precise amount of weight in a set period of time, or that weight can be lost from specific parts of the body.  
  • Do hold evidence for your claims and explain how the diet or technology works.  
  • Remember that slimming claims relating to food are also considered health claims.  
  • Be careful when using testimonials to not promote irresponsible and unhealthy activity which may be seen as incompatible with good medical and nutritional practice.  

 The above is a snapshot of good practice guidelines to follow when making diet/weight-loss claims. Remember that advertising health products and making specific health-related claims are heavily regulated activities and we would always advise advertisers to seek legal advice at the earliest opportunity.

Will It Be All White On The Night? - Toothpaste Companies Put To Proof Over Their Whitening Claims

Two toothpaste manufacturers have recently felt the bite of the ASA. Purity Laboratories Ltd claimed in a magazine advertisement that its products produced "whiter teeth in 1 minute" and attempted to substantiate this claim on its website by stating that " a study conducted at Bristol University Dental School proved that Beverly Hills Formula toothpaste can remove over 90% of staining in just 1 minute." When the ASA put Purity Laboratories Ltd to proof on this, it claimed that an inconsistency in spelling at the laboratory meant that not all product names stated in the test results accurately matched the names of its products and that it was awaiting further data. The ASA therefore held that this was misleading advertising under rule 3.1 of the CAP Code and the ads must not appear again in their current form.

Similarly Church & Dwight UK Ltd claimed that its toothpaste could produce "3 shades whiter clinically proven" and relied on a study which they had conducted by a leading dental research institute. When the ASA referred the study to an independent expert, it found that it was not "sufficiently robust" and even had a significant proportion of subjects who experienced darker teeth or no change at all. As a result of this the ASA found the claim to be misleading (breaching CAP Code rule 3.1) and incapable of substantiation (breaching CAP Code rule 3.9). As a result the ads cannot appear again in their current form.

Conversely Procter & Gamble were vindicated by the ASA when its ad featuring TV personality, Holly Willoughby, was investigated following claims that P&G had enhanced the whiteness of Miss Willoughby’s teeth in post-production. The ad was investigated for suspected breaches of CAP Code rule 3.1 (misleading), rule 3.9 (substantiation )and rule 3.12 (exaggeration) but was cleared by the ASA when Clearcast confirmed that P&G had not enhanced the film nor whitened Miss Willoughby’s teeth. P&G even produced a letter from Miss Willoughby stating that she had been using the toothpaste for a period prior to filming and had noticed a significant difference. On this basis the ad was cleared of any breach. There are two lessons to learn from these cases: i) always ensure that your advertised claims are backed up with solid independent evidence and ii) yes, Holly Willoughby’s teeth really are that white! 

'Tis The Season...

With Christmas fast approaching and the party season now in full swing, it is no surprise to see that alcohol is featuring prominently in advertising. Advertisers need to ensure that they comply with the provisions of the Codes (Section 18 of the CAP Code for non-broadcast and Section 19 of the BCAP Code for broadcast ads). It should also be noted that the rules apply to ads for alcoholic drinks but also those for other products and services which feature or refer to alcoholic drinks.

Many advertisers fall foul of the rules and have been accused of linking alcohol to sexual success or confidence or social acceptance. Alcohol Concern earlier this year raised a complaint about a TV ad for Estrella beer, for ostensibly linking alcohol, seduction and sexual success. However, on this occasion the ASA disagreed, and did not uphold the complaints in its adjudication.

Alcohol Concern considered the ad, which tells the story of the central male character’s island summer holiday, a breach of the BCAP Code for its apparent promotion of alcohol in the quest for friends and bedfellows. The main character unites with a couple of equally sun-kissed chums and spends his summer jumping off boats, beach-partying, flirting and enjoying the occasional Estrella beer on the dreamy Balearic island of Formentera. The complaint from Alcohol Concern was that the tone of the advert implied that alcohol contributed to the male character’s sexual success, social popularity and the overall success of the holiday. The soundtrack, "Summercat" by Billie the Vision and The Dancers, who feature in the ad, frequently includes the line "Tonight, I wanna be with you".  

Clearcast’s view was that that alcohol was featured in a "realistic, incidental and minimal way" and that the interactions between the main male character and his female counterparts were ‘romantic’ rather than overtly suggestive or sexual. The ASA's adjudication followed Clearcast’s reasoning that the inclusion of alcohol was merely complementary to the spontaneous fun that the characters were seen to be enjoying, and reiterated that the Code did not prevent alcohol from being linked with ‘mild flirtation or romance’. It is rare for the ASA to disagree with Clearcast. All TV ads must be cleared by Clearcast, and it is worth noting that radio ads for, or featuring, alcohol must be cleared by the Radio Advertising Clearance Centre (RACC). Alcohol advertisers must also comply with the provisions of industry body The Portman Group’s Code of Practice for socially responsible marketing of alcohol products, available here.

ASA Bans Naked Farmer Ad, But Not for The Flesh On Display

A TV ad for Richmond ham which features a naked man wearing only a cap and eating a ham sandwich, was banned by the ASA at the end of last month, but not for the reasons you might think. The man sang a song declaring his love for Richmond ham which proclaimed that Richmond ham is "Britain's only ham made with 100% natural ingredients." The ad was cleared for broadcast with an ex-kids restriction, which meant it should not be shown in or around programmes made for children. The advert received 371 complaints, five issues were investigated by the ASA and one was upheld. the ASA investigated whether: (i) the nudity in the ad was offensive; (ii) the ad was inappropriate for broadcast at times when children were likely to be watching; (iii) the claim "Britain's only ham made with 100% natural ingredients" was misleading and could be substantiated; (iv) it was misleading to describe the product as "Britain's only ham...", because the company was Irish and the product was made in Ireland; and (v) the claims "made with 100% natural ingredients" and "as nature intended" were misleading and could be substantiated.

Surprisingly, it was issue number (iv) that turned out to be the reason for the ASA clamping down on Richmond ham. In relation to the nudity, which drew the most public complaints, the ASA stated that it was "not sexual in tone and we concluded that it was unlikely to cause serious or widespread offence". Regarding the claim that the ham was British, the ASA upheld the complaint, stating that the ham was likely to be interpreted by consumers watching the ad as a product of British origin, when this was not the case. Therefore, the claim was held to be misleading and the advert was deemed to breach BCAP Code rule 3.1 (Misleading advertising).

UK Websites Are Failing To Comply With New Cookie Laws

The UK Information Commissioner's Office (ICO) has received 169 complaints thus far about websites failing to comply with the cookie law that came into force on May 26. Operators of UK websites were given until that date to ensure that user consent for cookies is obtained prior to access to the website being granted, although the ICO published last-minute Guidance the day before the deadline which appeared to dilute somewhat its previous position. A brief tour around several high-profile websites shows very little consistency in the approach companies are taking. For those who have addressed the cookies issue, this varies from a definite consent being required before the user can progress to the site, to a mere link to the cookies policy being provided in a more prominent place on the homepage. This lack of consistency is probably due to the ongoing lack of clarity on the ICO's position. For more information, please see the blog and related posts of our Global Regulatory Enforcement Team here.

Coming Soon: Bet Your Bottom Dollar Online?

Unlike in the United Kingdom, online gambling activities are not permitted in the United States. The regulator has historically held any online gambling activity to be illegal, until now. On December 23, 2011 the US Department of Justice reversed its decade long position on the applicability of the US Wire Act to online gambling that does not involve sports betting. This may well clear the way for individual States to become more aggressive in legislatively enabling intra-State online gaming and could potentially allow the Federal Government to permit licensing and regulating of online gambling. This is not simply big news for the US. Gaming and gambling operators around the world may now be able to establish a foothold and ultimately a major presence in the US with Uncle Sam's online casinos. For more information, read the Client Alert prepared by lawyers in our New York Office.

Association of National Advertisers Challenges ICANN Authority to Establish New Top Level Domains

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.

Is The Beauty Industry Set For A Makeover?

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.

Is the ASA Getting in Your Personal Space?

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.

Super Bowl XLV: The Stakes Were High On and Off the Field

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.

Prince William and Kate Middleton's Marriage - An Ad Man's Dream

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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Regulation Spreads to Advertisements on Corporate Websites and Social Networking Sites

The Advertising Standards Authority, ASA, announced on the 1st September 2010 an extension of its regulatory remit, from March 2011, which will give the Regulator jurisdiction over all marketing communications on the Internet including those on corporate websites and social media networks such as Twitter and Facebook, as well as over advergames and user generated content.

 

This controversial move has been introduced without any public consultation, and includes new serious sanctions for advertisers. Exemptions to the new regulation include "heritage advertising", 'investor relations', and marketing communications promoting "causes and ideas". Nearly all other marketing promotions on-line will need to comply with the CAP Code. Some areas of concern include how the ASA will deal with the fine line between editorial and promotional material; how the extended remit will be adequately funded; how sanctions can be effectively enforced against companies with sites based overseas or indeed against those thousands of smaller on line advertisers who are blissfully unaware and ignorant of the CAP Code and whose advertising can change in seconds in this fast paced media environment.

 

All this comes into effect on the 1st March 2011, which does not give businesses long to review their on line promotions and marketing plans. The changes to the CAP Code ironically comes literally days after printed versions of the revised CAP and BCAP Codes were sent out to purchasers, and only a few months after a public consultation, which excluded these latest provisions.

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Abortion Services Advertisement Cleared by the ASA

The first television commercial for post conception advice by Maris Stopes led to the Advertising Standards Authority receiving almost 5,000 complaints, fueled by attacks from anti-abortion groups. Apparently the ASA also received a petition against the advertisement from the Society for the Protection of Unborn Children.

Despite the fierce objections however the ASA did not uphold the complaints, indeed it may well be argued that no other outcome was feasible since the advertisement did not breach any of the Code rules, as we stated in our blog of 24 May 2010 . The ASA concluded that the advertisement would not cause widespread offence and was not harmful in that it would not encourage promiscuity or overly appeal to young people.

It is interesting nevertheless to consider the grounds that were used by complainants to object to the advertisement.  Arguments against the commercials were wide ranging and included: that the commercial was a political message; the ad promoted abortion; offended the religious beliefs of some viewers; trivialised the decision to choose abortion; did not take into account the views of the father; was sexist in that it portrayed pregnancy as a woman's responsibility; and that it would encourage promiscuity among young people and that it equated decisions about the life of an unborn child with decisions about consumer goods.

None of these views were accepted and the ASA adjudication states:

We considered that it was clear that the ad was promoting the Advice Line as a source of information for ..women, and noted that it did not advocate one option over another.

Unsurprisingly anti-abortion groups are upset at the decision, with the ProLife Alliance claiming the ASA has ignored clear breaches of the Code.  The commercials were though carefully and sensitively produced and there is little doubt the advertisements are compliant with the BCAP Code.  As I commented in May this year in Campaign Magazine, given this is a highly sensitive area, there will always be those who object to the right to advertise such services.   

 

DMA's new industry code requires Parental Consent

 

Companies directly marketing to customers must not use the Internet to gather data about children. That's according to a new code of practice published by the Direct Marketing Association (DMA), which says companies must seek parental consent for children under 12 years old, The Register reports. The code must be adhered to by members of the DMA.

"Even if your site is not primarily aimed at young people, if there is a possibility that it would be attractive to them...you have a responsibility," a DMA spokeswoman said.

The revision brings the code into compliance with the new CAP Code, which sets the rules governing advertising in the UK, the report states, and includes a whole new annex containing the rules on marketing to children. The new code has also been updated to take account of changes in legislation including the new Consumer Protection Regulations 2008 and the Gambling Act 2005, and also features a new section on key environmental responsibilities.

Sugar and Spice and All Things Nice: Advertising to Children

The new coalition government has stated that one of its priorities is the protection of children from excessive commercialisation. This policy aim reflects a general perception in the UK among the governing and chattering classes that advertising is at the root of both this problem and the problem of obesity among children. Eyes are therefore turned to the advertising industry to see what they have done and what they are doing to protect children.

It is helpful therefore that Ofcom have recently released a review showing that since the rules concerning the advertising of foods that are high in fat, sugar and salt (HFSS) came into force in 2007, advertising for HFSS products seen by children had dropped by 37%, and the fall was greater for younger children (a 55% decline).

There are already a number of rules and safeguards in place to protect children, and these are probably set to increase if the proposed extension of the CAP Code into all promotional messages on the internet goes ahead. Our new Ad Guide on advertising to children goes into greater detail on all these areas.

Government passes the buck to industry to deal with obesity crisis

The new Health Secretary under the coalition government, Andrew Lansley, has recently announced the axing of the previous government's £75 million advertising campaign to promote healthy living, which was introduced in an attempt to reduce the record levels of obesity in the UK. As Mark Sweney from the Guardian notes, the new administration is instead encouraging the food and drinks industry to get behind a social media campaign.

The Government has a huge deficit to cut, and it was always known that their marketing budget would be at the forefront of these cuts, but it is interesting that the government is highlighting the important effects of social media as a (inevitably cheaper) resource to combat obesity, rather than relying on traditional media, such as poster and television campaigns. Lansley says this will be "less a government campaign, more a social movement" and he encourages charities, local authorities and the commercial sector to all get involved. In return, he hinted that the Government would not seek stricter regulation of food and drink advertising.

This latter comment will no doubt be the cause of some great delight to the beleaguered food and drink industry which has been vilified by so-called consumer groups, and indeed by the previous administration, for, in their words, promoting unhealthy food and drinks, in particular to children, and thus in effect for causing the obesity crisis engulfing the country. As a result of this vilification, the industry has seen substantial and significant advertising content and scheduling restrictions imposed upon them. Any suggestion from the present government that this view now no longer holds sway will cause the food and drinks industry to breathe a sign of relief, although it will no doubt anger the health lobbies, and we can expect to see some criticism from them in the coming days and weeks.

Product Placement Ofcom Consultation

Ofcom has today, 28 June, opened two consultations on changes to the Ofcom Broadcasting Code (one for television and one for radio) to allow for product placement in UK television programming. The consultations close on 17 September 2010, and we encourage interested parties to respond.

In the television consultation, Ofcom has made a few sensible suggestions and clarifications to the Regulations that came into force in March (see our separate Ad Guide), including allowing single dramas to carry product placement, prohibiting thematic placement and signalling the placement to viewers by way of a universal neutral logo (both visual and audio).

Furthermore, Ofcom has suggested amending the sponsorship rules, to allow programme sponsor's products or services to be referred to in the programme. In essence, this would allow broadcasters to offer full packages to sponsors, prevents conflicts between sponsorship and placement and makes much commercial sense for both broadcasters and advertisers. Ofcom also states that, as a result of the changes to EU law under the Audio Visual Services DIrective which the Product Placement Regulations implement, there is no need for advertising and editorial to be separated, but only that they are distinct from each other: some changes are therefore proposed to this section of the Broadcasting Code.

Notable by its absence, however, is any clarification of what it meant by "undue prominence": under the Regulations, programmes must not give undue prominence to placed products. However, Ofcom has said it intends to issue Guidance as well, so we hope that these address this crucial element.

 

Happy Days? Making Health Claims in Advertisements

Several ASA adjudications in recent months have highlighted the difficulties for advertisers in making any health claims about their products. The ASA have come down hard on those that fall foul of the CAP and BCAP Codes which require that, in relation specifically to health claims, advertisers must have evidentiary substantiation of any health claims made in advertisements, by way of documented scientific trials or otherwise. See our Ad Guide to Making Health Claims in Advertising for more detail.

The adjudications demonstrate that, despite the potential profitability in making health claims about their products, it is most probably not worth doing so if advertisers are unable to substantiate such claims when questioned.

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Sorry Starbucks, the ASA agrees with Costa

 

In the battle of the coffee chains, Costa has edged one step ahead of its biggest rival, Starbucks. The ASA has dismissed complaints from Starbucks over a series of press and outdoor ads run by Costa stating that coffee lovers preferred Costa to Starbucks. The ads, featuring body copy such as "Sorry Starbucks: the people have voted" and "Seven out of 10 coffee lovers prefer Costa", were challenged by Starbucks, who said the ads were misleading and the claims were unsubstantiated. The ads carried small print to the body copy stating that in blind taste tests of 174 self-titled coffee lovers comparing Costa’s cappuccino against those of Starbucks and Caffe Nero, 70% of respondents who identified themselves as ‘Coffee Lovers’ preferred Costa cappuccino. Costa was advised by the CAP Copy Advice Team that, although the taste tests were based solely on cappuccino comparisons, it was fine to make the headline a general claim, provided that this was clarified in the bodycopy text to refer only to cappuccino. Somewhat amazingly, the ASA agreed.

The ASA's decision highlights the important of using effective small print in press/outdoor and indeed TV ads to qualify any claims made. At the end of 2009, Ofcom banned a radio sponsorship ident which used the same "7 out of 10 coffee lovers" wording as the press ads, but failed to qualify the claim in the voiceover. Under the Advertising Codes, any claim made in an ad must be capable of substantiation, and the advertiser making the claim must hold documentary evidence on file to prove the claim and send this to the ASA on request.

New versions of the Codes are being launched this year and amongst other things, provide further detail on making claims in ads. Please see our ReACTS Guide on the new advertising codes for more detail.

Handbags at Dawn? Misleading Advertisements in the Press

45% of complaints to the ASA, The Advertising Standards Authority, are about misleading claims.  One latest advertiser to fall foul of the rules, is Louis Vuitton. The ASA upheld complaints that two press ads were misleading. One featured a photograph of a woman stitching the handle of a handbag with the words " A needle, linen thread, beeswax and infinite patience protect each overstitch from humidity and the passage of time. One could say that a Louis Vuitton bag is a collection of details. But with so much attention lavished on every one, should we only call them details?"  

Three complainants complained  the ads misleadingly implied that Louis Vuitton products were made by hand when they are not. The ASA upheld the complaints because there was insufficient evidence to substantiate the implied claims that they were.

Louis Vuitton is one of many advertisers who fail to have prepared  the necessary evidence to prove any implied or explicit claims in advertising.  Why does this matter? Because an adverse ASA adjudication that upholds complaints for misleading can be hugely damaging to brand reputation, and often for fairly small infringements of the advertising codes.

The UK's advertising codes for broadcast and non broadcast advertising are unambiguous:

"Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove all claims, whether direct or implied, that are capable of objective substantiation. Relevant evidence should be sent without delay if requested by the ASA or CAP.  The adequacy of evidence will be judged on whether it supports both the detailed claims and the overall impression created by the marketing communication. " (Clause 3.1 CAP Code)

Often marketers simply get carried away with belief in the brilliance of their products and creatively simplified slogans simply sound better. There is however a genuine risk that exaggerated statements can lead to damaging adverse publicity and with the imminent extension of regulation to promotional messages on the Internet advertisers must think carefully about claims in marketing communications of all types. Other marketers do not take an ASA letter demanding substantiation seriously. This is a mistake as many have discovered. A quiet week in the news means the press will focus on any major brand caught out breaching the Codes. John Reynolds in Campaign, publicises one of many such advertisers in his article about British Gas' efficiency claims. Media Guardian's Mark Sweney will swoop on any important transgressor. Only recently he reported the ASA's decision to ban Eurotunnel email promotion which claimed its service took vehicles to France by train in just 35 minutes and ran "whatever the weather". 

Its not just about brand damage either. Having a press ad or TV commercial banned can mean a massive waste of money. So don't waste a good campaign, an expensive TV commercial or lose pre purchased media space. Know your regulations and have robust evidence to substantiate your claims.

 

 

Pro-Christianity Ad Receives Most Complaints in 2009

 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.

 

 

Product Placement in the UK - a Whole New World?

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.

Political Advertising - Legal, Decent, Honest and Truthful?

Ad agency M&C Saatchi were back, appointed by the Conservative Part to steer the party’s and David Cameron’s advertising campaign. The old Saatchi and Saatchi team are of course famous for the advertisement for Margaret Thatcher’s 1979 Conservative Party campaign, “Labour isn’t working” which some argue won the Tories the election. In the 1987 election it is alleged that Thatcher spent £3 million in the last four days of the campaign.

Did the 2010 campaign produce any memorable advertising though? Both the Tories and Labour resorted to spoofs and old clichés. Did anyone notice the Liberal Democrat campaign? No one could ever have envisaged the resulting Lib –Con alliance, but how far can the parties go in the advertising battle to win the voters? The advertising codes of practice (known as the CAP and BCAP rules enforced by the ASA, Advertising Standards Agency) require all advertisements to be legal, decent, honest, and truthful but MPs argued that the Codes ought not to apply to political advertising for elections.

The argument is that it is inappropriate for the ASA, as a non-elected body, to intervene in the democratic process; that ASA rulings would have little practical value because the complex issues involved meant that rulings would probably be made after election day; that ASA adjudications would come within the arena of political debate; and that party political advertisements are always subject to a disproportionate amount of media scrutiny.

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