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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Waitrose caught telling porkies?

Completely free-range pork? Pigs might fly, according to the ASA. Waitrose is the only major supermarket never to have its advertising fall foul of the Advertising Codes until its recent high-profile celebrity-endorsed advertising campaign which has been dealt a rather embarrassing blow. The £10m campaign fronted by Delia Smith and Heston Blumenthal, aims to reinforce Waitrose’s brand image as a supermarket priding itself on the provenance and traceability of its produce. These ads have also been accompanied by recipes and a new range of products. However, a recent ASA adjudication held that two TV ads and one press ad concerning Waitrose's pork products were misleading and in breach of rule 5.11 of the BCAP Code and rule 7.1 of the CAP Code. The first TV ad showed Heston outdoors with some pigs saying "in my opinion, some of the best tasting pork comes from British pigs that have been outdoor bred, just like these pigs". The ad then features a conversation between Heston and a pig farmer concerning the effect "plenty of fresh air, cereal-based diet and of course a comfortable bed" has on the meat’s flavour. The second TV ad stated "Waitrose essential pork comes from pigs that are outdoor bred." The print ad stated "All essential Waitrose pork and bacon comes from British outdoor bred pigs…". However, it emerged that these pigs, whilst technically bred in fields, were reared indoors after only a few weeks. Waitrose argued that there was a clear difference between an animal being "outdoor bred" and "outdoor reared". The ASA said this was confusing to consumers, and the ads have been banned from appearing again in their current form.

Other supermarkets have received complaints in a similar vein, but have managed to save their bacon. A Sainsbury’s TV ad earlier this year featuring Jamie Oliver was challenged for claims that Sainsbury’s pork sausages were made from 100% British pork, a possible interpretation being that there were no other ingredients. The ASA heldhowever, that the majority of viewers would appreciate that sausages are made from ingredients other than meat and would view the statement as a reference to the origin of the meat only. Likewise, Tesco recently received

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Virgin in Champagne Bath Scandal

A Virgin Holidays poster advertising their "Travel Guru Services" was recently found by the ASA to be in breach of the CAP Code in relation to alcohol used in advertising. The ad depicts four rockstars in a jacuzzi full of champagne, with various bottles and glasses surrounding them and a female Virgin Holidays employee pouring champagne into the jacuzzi. The ASA (after one complaint was made), found that alcohol was prominently featured and that the ad and "indicated a casual attitude towards the handling and consumption of alcohol", even though the ad was not specificaly for an alcohol brand. It was also decided that the inclusion of rockstars in such a scenario could appeal to people under 18 and encourage them to drink.

Advertising agencies and their clients should take note that the CAP Code rules on the use of alcohol in advertising are indivisible. Using the example given in the ad discussed above for alcoholic drinks, even if an alcoholic drink is not being marketed directly (the ad is question was for Virgin's travel services) inclusion within the ad means that the CAP Code rules in relation to alcoholic drinks will apply. When alcohol is featured in advertising, it must be shown in a socially responsible fashion and excessive consumption must not be encouraged, whether the ad is for the alcohol brand or not. When promoting a particular brand of alcohol, advertisers are advised consult, in addition to the CAP/BCAP Code, the Portman Group's Code of Practice, and to consider using the DrinkAware logo in their ads.   

Luxury Brand Protection? Stella McCartney v. the Sanitary Towel

 Advertisers have been given the green light to continue to use the name of products they give away as prizes in promotions, without needing the permission of the brand/product owner, following a recent controversial adjudication by the ASA

The ASA disagreed and found in favour of Bodyform in all respects. Clauses 7.1 (Truthfulness),14.7 (Testimonials and Endorsements) and 20.1-20.2 (Denigration) of the CAP Code were considered, but the ASA ruled there had been no breach. It was decided that the adverts were not likely to discredit the underwear brand or company and that "readers would understand…that [Stella McCartney] underwear was a product of value and a desirable prize." The ASA also commented that the CAP Code does not require an advertiser to get permission from a brand before referring to a brand. Is it time this requirement was added? Or should luxury brands be grateful with the free advertising in any context? What’s next? Toilet cleaning products offering luxury branded jewellery as prizes? Could coupling a particular product with a luxury brand in an ad ever be deemed denigratory to the luxury brand? Watch this space! 

Some believe this decision is contrary to the ECJ ruling in Copad SA v Dior (Case C-59/08, 23 April 2009), where a "trademark's prestige" and "the aura of luxury" were found to be "essential" to brand protection. Stella McCartney Limited challenged the adverts for a competition being run by the makers of female sanitary products, Bodyform (SCA Hygiene Products UK). The ads (running in magazines, on packaging and on line) gave the reader the chance to win £100 worth of Stella McCartney underwear. Stella McCartney Ltd argued that the ads were denigratory, misleading by suggesting an endorsement of the product by the underwear brand, took unfair advantage of the brand, and did not make it clear that the brand had no association with Bodyform.





Saucy Ice Cream Ads Once Again Frozen by the ASA

In the same week that the Pope visited the UK, the ASA banned an ad it deemed could be offensive to some Roman Catholics.  The ad, for Antonio Federici ice-cream, which ran in Grazia and The Lady magazines  earlier this year, featured an obviously pregnant nun eating Antonio Federici ice-cream alongside the words "Immaculately conceived". The strap line for the campaign was "Ice-cream is our religion". The ASA received ten complaints from readers of the magazines claiming that the ad was offensive to Christians and in particular to Catholics. In its adjudication, the ASA said that the ad breached old CAP Code s.5.1 (Decency), which states that ads "should contain nothing that is likely to cause serious or widespread offence. Particular care should be taken to avoid causing offence on the grounds of race, religion, sex, sexual orientation or disability. Compliance with the Code will be judged on the context, medium, audience, product and prevailing standards of decency".

Thus the ASA concluded that the use of such an image as the pregnant  nun to advertise ice-cream, was likely to cause serious offence to readers, particularly practising Catholics. It did not matter that the ad was only placed in a small number of publications, and only a relatively small number of complaints were received, the ASA ruled that the potential for causing serious offence in breach of the Code was significant and that the ads should not run again in their current form.

In 2009, the ASA banned a similar series of ads from Antonio Federici  which featured a cavorting priest and nun with the lines "Submit to temptation" and "Kiss temptation".  The ice-cream company appears determined to create controversial ads, regardless of the previous adverse ASA decisions, so one wonders what their next campaign will be like. However most advertisers do not revel in the publicity of adverse adjudications and there is a danger for repeat offenders that they will be required to pre-clear all their ads for a prescribed period in the future.

When using any religious references, images or innueundo, it is always wise to seek advice and to tread carefully. An ad need not actually cause serious and widespread offence to be problematic, the potential to do so may suffice for a negative adjudication. The latest adjudication was investigated under the old CAP Code. As of 1 September 2010, the new CAP Code is in force. Please see our Ad Guide for further information about the changes to the regime.



Asda loses a battle in the "Supermarket Wars"

A double page comparative ad which Asda ran in January 2010 was found to be ambiguous and misleading by the ASA in a recent adjudication since it breached clauses 7.1 and 7.2 (Truthfulness), 18.1 and 18.3 (Comparisons with identified competitors and or their products) and 19.1 (Other Comparisons) of the CAP Code. The ad featured the statement that Asda had “Lower prices than any other supermarket”, followed an asterisk and caveat that price comparisons had been made against only three of its largest rivals and not against the sector as a whole. There was also the statement “Lower prices on everything you buy, week in week out” above a number of products in different product categories, accompanied with arrows on the opposite page stating the number of products that were cheaper at Asda than at Sainsbury’s, Tesco or Morrisons. The ASA was of the opinion that the ad could have been interpreted to mean that the price reductions highlighted had all occurred in the preceding week, which was not the case. The advert has now been banned from appearing again in its current form and Asda have been warned about its comparative advertising. The adjudication highlights the dangers for advertisers when making comparative ads, a practice which most of the major supermarkets seem to now participate in, with Waitrose launching its first comparative ad recently, comparing its prices to those of Tesco. Comparative advertising is permitted provided that the comparisons made are clear and not misleading, and that it is a like-for-like comparison. It seems that Asda have lost a battle on this occasion, but in comparative advertising the "Supermarket Wars" rage on.

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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Gambling with the ASA - an update

The global legal gambling market was worth $335 billion in 2009, of which $25 billion came from online gambling. As a result of legislation dating from the early 1960s, UK gambling operators had been prevented from advertising their services, and thus prevented from getting a fair share of this substantial pie, until the Gambling Act 2005 (the Act) came into force in 2007. Gambling operators in the UK are now permitted to advertise relatively freely, subject to the provisions of the CAP and BCAP Codes and the gambling industry's own code (click here for our Ad Guide on the new law).

Recent ASA adjudications have shown that gambling advertisers are embracing the freedom granted under the Act, but are also trying to test its boundaries. Interestingly, significantly fewer complaints about broadcast gambling commercials have been upheld by the ASA than about non-broadcasting gambling ads. It appears that Clearcast has adapted to the requirements of the new rules very efficiently.  


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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.

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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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.



TV Ad for Post-Conception Advice Service Sparks Controversy

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.