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

For example, two adjudications about television advertisements in November last year and in May this year (full adjudications here and here) acknowledged that the sensible presentation of the main characters (one an old woman and the other a "calm and measured" man) in the commercials prevented the commercials from being seen as socially irresponsible.

On the other hand, some non-broadcast advertisements, which do not require pre-clearance, have fallen foul of the laws. An e-mail advertisement for Betfair showed a photograph of a young professional poker player and champion with the following text "Online experience is measured in games, not years. Join the new breed. Annette Obrestad - Annette_15." The complainant challenged the advertisement on the basis that it encouraged children and young people to gamble, in breach of the provisions of the CAP Code. Furthermore, the ASA themselves challenged it on the basis that it breached the Code requirement that no person under 25 years old featured in a gambling advertisement.

The ASA, perhaps unsurprisingly, upheld both complaints, despite the fact that the advertisement had not been targeted at persons under 18, and Betfair had in place a dedicated team and technical measures to prevent under 18s from registering on their website. Indeed Betfair were forced to admit that their marketing team had been told not to use this character for UK targeted advertising, and they apologised for the fact that that this instruction had erroneously been ignored. The full adjudication is here.

It is worth remembering that not all gambling operators in other jurisdictions have the same freedoms as UK operators do under the Act.  Since 1991, France has prohibited gambling advertisements from appearing in television or cinema. Online gambling is still illegal in the US, despite the fact that many Americans are still gambling via the internet regardless, as the figures at the beginning of this article demonstrate.

However, in the UK, gambling operators who show that they are serious in complying with the advertising codes, should have no problem in continuing to advertise.

Purpose of the Guidance

The purpose of the Defra guidance is to “promote the use of clear, accurate and relevant environmental claims in marketing and advertising.” All this comes on top of the recent International Chamber of Commerce publication on “responsible environmental marketing communications”.

The fact is there is money to be made out of making and promoting your product as green. It is equally right that consumers should know if one or other product is greener than another. However perceptions are one thing and claims can mislead, especially in a world of toxic terminology and emerging vocabulary. In recent years more and more advertisers want to promote their green credentials but there is a lot of unease and confusion about the terminology and imagery used. This is a serious issue, as it is essential that green claims can be made in a way that genuinely helps consumers make informed decisions. Businesses ought not to be dissuaded from making genuine claims so regulators need to steer a careful path between ensuring claims are accurate and unambiguous while encouraging advertisers to differentiate themselves on environmental issues where possible.

The ASA's position

The ASA has made it plain it will continue to adjudicate against those companies which fail to adequately substantiate claims but it agrees with Defra that it is important that companies are not dissuaded from making such claims where they are genuine for fear of falling foul of the advertising codes. It has tried to take a balanced approach but even when companies are genuinely trying to do their best to reduce their carbon emissions, to produce and source products from more environmental sources, they can breach the rules unless they stick to claims they can wholly substantiate. The problem is the ASA regularly finds itself arbitrating debates between the renewable energy lobby and those that believe the environmental benefit of these schemes is non existent or at best, negligible.

The ASA has a check list for getting it right and to be honest it’s not rocket science. Advertisers shouldn’t exaggerate the environmental benefits and must support advertising claims with documentary evidence. It is advised not to present claims as being universally accepted if the science is inconclusive and not to use pseudo-science, or terms that will not be generally understood by consumers. It also advises not to use sweeping or absolute claims such as “environmentally friendly” or “wholly biodegradable” since on any basis it’s unlikely that you will be able to prove your product has no environmental impact at all. Another common problem is advertisers saying something is ‘locally’ produced when it is not. Importing goods doesn’t make them ‘locally sourced’ either!

Specific areas of concern

There are certain areas where claims are rife, namely energy claims, low emission claims in car advertisements and in the general pubic relations scramble to demonstrate that your product or service is doing its bit in saving the planet from the reckless decadence of human kind. Defra’s guide tries to assist with demystifying some terminology such as carbon offsetting’, ‘carbon footprint’ or ‘carbon neutral’, as does the ICC Framework on Environmental Communications. Scottish & Southern Energy Group (SSE) recently distributed a leaflet that encouraged consumers to join their ‘power2’ scheme as a means of cutting CO2 emissions and that it planted trees to “balance out” the emissions produced by household heating and waste. The problem was not that SSE did not plant trees, it does, but it couldn’t substantiate the claim that this would balance out the household emissions. Thus a good intention ended up as an upheld complaint against SSE and its advertisement.

Ownergy claims it is the first company to offer simple and cost-effective end-to-end delivery of renewable energy systems. It launches its consumer proposition this April at the Ideal Home Show and its marketing materials show orange and turquoise outdoor scenes. Nothing wrong with this but imagery itself can mislead so amongst other advice the Defra guide also touches on using relevant imagery.

Other problems arise from the use of, logos, green symbols and terminology such as green, recyclable, pure, biodegradable, carbon neutral, and many more. The Department of Energy and Climate Change has produced guidance on the definition of "carbon neutral". Advertisers implying that their products cause absolutely no environmental damage throughout their life-cycles ought to be careful, without proof such claims are likely to be misleading. In September 2009 a complaint against a magazine advertisement for Malaysian Palm Oil, claiming it to be the green answer, was upheld by the ASA on the basis that readers would infer from the claim that palm oil was sustainable and would not have an adverse effect on the environment. Such absolute claims are undoubtedly extremely risky.

Car advertisements are constantly harping on about clean fuels, lower emissions and using green imagery, in an attempt as much as anything to make consumers feel les guilty about car use. Lexus made the mistake of using the words “low emissions, zero guilt” in its advertisement and the ASA upheld complaints as it considered the headline claims gave the misleading impression that the car caused little or no harm to the environment.

The problem for car manufacturers, and many other businesses, is that no matter how well intentioned and how genuine they are about trying to make a difference, anti car lobbyists, non government organisations and green groups will always complain. It is therefore crucial to use terminology wisely and accurately and to follow the Defra and ICC advice.

One thing is certain, as one famous green frog concluded, being green in the 21^st century “is beautiful! And I think it's what I want to be!”

Perhaps a lot of disillusioned readers will be unsurprised that Codes - which apply to all other advertisers – do not apply to our politicians, but that does not mean mistakes have not been made in the past or that no rules exist at all.

Political parties are not permitted to advertise on television, save for the party political broadcasts. In addition the Broadcasters' Liaison Group produced guidelines that the parties must adhere to. Unsurprisingly TV commercials have to be legal and not infringe any copyright or other intellectual property rights and they must comply with the Ofcom broadcast Codes, but crucially accuracy remains a matter for the parties.

In non broadcast media and the internet political ads are unrestricted and political parties are keen to get their messages across as vocally as possible. Though the days of many bill boards being plastered across the country with political advertising are probably over, (because the rules on media owners providing free space to political parties has been made illegal), the rise in the importance of the internet was tipped to outstrip the importance of the outdoor medium. That did not really transpire but as well as the party website all the party leaders have their own blogs and micro sites, and there is still a risk that an edgy campaign can back fire.

The now infamous “Demon Eyes” adverts featuring Tony Blair with demon eyes only appeared in three newspapers but the advertisements were condemned by the church and the Advertising Standards Agency banned the image. Voters claim to despise negative political advertising but it works, especially with younger voters.

The May 2010 election started off in that vein, with the Tories using a beaming Gordon Brown (itself a rather frightening sight) and the words “I let out 800,000 criminals early, vote for me.” While the Guardian described Labour's five pledges on a sunny background of a field of ripening corn as “having all the boldness of a muesli advert.” Then again the photo shopped image of David Cameron was not a resounding success either and led to a plethora of graffiti and spoof versions that were far from kind depicting images of Cameron and superimposed words such as “government of the rich, for the rich, by the rich.” The campaigns did not end on a high note either with no party producing anything particularly memorable. Maybe it’s not surprising all the ads look the same, so do the parties, perhaps now more than ever.