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European Court of Human Rights upholds UK ban on broadcast political ads: but is it time to lift the ban in any event?

Mon, 22 Apr 2013 17:04:00 +0100

Yesterday morning (Monday 22nd April), the European Court of Human Rights in Strasbourg ruled that the UK’s complete ban on both party political and cause-related ‘advocacy advertising’ on television and radio is compatible with the European Convention on Human Rights. The Court decided that although the ban does have an adverse impact on the Article 10 right to freedom of expression, it broadly accepted the UK government's argument (as previously upheld by the UK courts) that the ban is justified as being necessary to meet another important need of a democratic society, primarily to prevent public debate from becoming a contest about who has the deepest pockets to pay for broadcast advertising. The ban is enshrined in the Communications Act 2003 and is reflected in the Ofcom Code and the BCAP advertising Code and will therefore remain in place for the foreseeable future.

But while the Court has decided the ban is lawful, our question is this: Is it right?

The Court’s judgment could not have been a more close-run thing, the Grand Chamber judges ruling by nine votes to eight to uphold the ban. Factors counting in its favour included that the Westminster Parliament had debated the ban extensively when the Communications Act was enacted in 2003; that there are other avenues to pursue instead of advertising; and there is no consensus throughout Europe as to how to regulate political advertising, giving the UK a broader discretion to make its own decision on the subject. The ban is restricted to broadcast advertising, so political and cause-related advocacy advertising in non-broadcast media such as the press and online have always been permitted, subject to the normal requirements of the CAP Code regarding issues such as substantiation, taste and decency. That remains the position.

The application to the European Court of Human Rights was lodged by the animal welfare organisation Animal Defenders International (ADI) in September 2008, after its arguments against the ban on had been defeated in the House of Lords. The dispute first arose as long ago as 2005, when ADI had wanted to run a TV commercial as part of its "My Mate's a Primate" campaign, highlighting the alleged misuse of primates in zoos, circuses and TV advertising. The commercial juxtaposed images of a young girl and of a chimpanzee, both being enchained in cages; but the problem was with the purposes of ADI, rather than the content of the commercial itself. Ironically, although never shown on UK television, the commercial could be viewed on the ADI website in any event.

The Broadcast Advertising Clearance Centre (BACC), now known as Clearcast, refused to clear the commercial for broadcast because it infringed the relevant TV advertising code rules implementing the ban laid down in sections 319(2) and 321(2) of the Communications Act 2003, which prevent both broadcast commercials by organisations with political objects, and commercials directed towards a political end. Rule 4 of the BCAP (Broadcast Advertising) Code prohibits broadcast commercials by bodies whose objects are ‘wholly or mainly of a political nature’, or may be ‘directed towards any political end’, including influencing government policy or public opinion on matters of public controversy in the UK.

ADI's purposes were "political" for the purposes of the Act, as it wanted to change the law to protect primates from use in zoos, circuses and advertising. ADI sought initially judicial review of the BACC's decision through the British courts, and a declaration that the ban was incompatible with the Convention right to freedom of expression, but it was unsuccessful in both the High Court and the House of Lords. Now that its application to the European Court of Human Rights has failed, ADI’s last legal option to challenge the ban has closed.

But is it right for UK law simply to be left as it currently stands? A nine-eight finding by the European Court is hardly a ringing endorsement.

The current situation is akin to using a sledge hammer to crack a nut. While there may be good reason to continue to ban party political advertising to prevent well-funded political parties from subverting the democratic process by buying up the airwaves, that argument does not apply to cause-related “advocacy advertising” by organisations such as ADI. The ban has also resulted in a bar on television advertising by organisations such as Make Poverty History. What public benefit is achieved by that? (No cheap jokes about keeping Bono off our screens please.) Amnesty International has also been prevented from showing a commercial publicising the Rwandan Genocide and the RSPCA has fallen foul of the ban with its commercial alleging cruelty to poultry in the fast food industry. These examples do not give rise to any threat to the democratic process.

Given the rise in the power and importance of internet advertising and social media since the Communications Act 2003 was enacted, are concerns relating to a dominance of broadcast advertising in such cases increasingly out-dated?

A further anomaly is that commercial organisations, such as oil and energy companies, can run television commercials trumpeting their green credentials and achievements, but NGO’s such as Greenpeace and Friends of the Earth cannot respond to such claims in the same media or run advertising advocating tax breaks for green energy. Public debate therefore becomes unbalanced.

Democracy itself may be a winner from a softening of the current regulatory position, with the new advertising stimulating debate and perhaps encouraging participation by those previously apathetic about the political process. In fields such as global poverty and the environment, post-ban advertising might not prove too controversial. But advertising about issues such as vivisection or abortion, or in favour of drugs legalisation, would no doubt present a challenge to regulators forced to decide what is acceptable, without being able to hide behind the cloak of a blanket ban. However, the recent case of Transport for London refusing to allow Core Issues Trust’s “Not gay...Get over it” advertisements on the side of buses (upheld by the Courts on judicial review) demonstrates if nothing else that regulators and media owners are willing and able to grapple with contentious issues. Transport for London has heavily criticised in that case for the procedures that it applied, but ultimately its decision was vindicated.

There may be sound arguments for maintaining a ban on all advertising by political parties and on advertising that seeks to influence voters in elections and referenda, as currently exists in non-broadcast advertising. To the extent that cause-related advertising were allowed, advertisers and broadcasters would still have to self-regulate to ensure that commercials are in accordance with the law and the self-regulatory codes, particularly in relation to taste and decency, and substantiation.

The advertising regulators, such as BCAP, the ASA and Clearcast will be heaving a sigh of relief now that the ban has been upheld, as they will not have to tackle these thorny issues. Their resources are already stretched, without having to deal with such contentious issues.

But if you believe in free speech and in equality of access to the means of free expression in a democratic society, then a blanket ban on advertising by all bodies with a “political” nature, as well as all commercials directed to a “political” objective, begins to look increasing difficult to justify in the modern age of the internet.

Comparing apples & pears, comparative advertising rules loosened

Thu, 21 Feb 2013 14:22:00 Z

The UK Advertising Codes have been amended to loosen the rules on price comparisons, doing away with the previous requirement to compare goods or services that are “identical or substantially equivalent”. This will allow own label brands to make comparisons with premium branded equivalents, much to the elation of supermarkets and other retailers.

Until now (well, yesterday in fact, 20 February 2013) the UK Advertising Codes prevented advertisers from comparing products based on their price, unless the comparison was against “an identical or substantially equivalent” product. This restricted the range of products that an advertiser could choose to compare their product against - a supermarket could not for example compare its own label washing-up liquid against a branded washing-up liquid.

In fact, the old rule went further than it should have done. The Comparative Advertising Directive says that comparative advertising must: not be misleading; compare goods or services that meet the same needs or intended purpose; and objectively compare one or more verifiable feature (for example the price). The restriction to comparisons between "identical or substantially equivalent” goods or services added a further requirement to the checklist, which the Directive does not allow.

Following a period of consultation starting in March 2012 (yes, changes to the rules take that long!) CAP and BCAP have now decided to remove this constraint, bringing the UK’s regulatory system into line with the Directive and opening up comparative advertising to comparisons between products that are not necessarily identical or substantially equivalent.

Advertisers will still need to ensure that the goods or services compared do meet “the same need or [are] intended for the same purpose” (Rule 3.34). This means you can’t compare jam with, say, bleach, but then it wouldn’t be a useful comparison if it didn’t meet the same need or intended purpose.

Crucially, advertisers wanting to include a price comparison will also still need to “make the basis of the comparison clear” (Rule 3.39, as revised). In the Pricing Regulatory Statement CAP/BCAP give the following example: “a retailer would be required to state if premium goods were being compared with non-premium goods”.

The existing requirement that the comparison is not misleading about the advertised product or the competing product (Rule 3.33) also remains. Presumably the more complex the products or services being compared, the more the advertiser is likely to have to flag up technical or qualitative differences between its own label product and the higher-priced branded product.

For more information on the revised UK Advertising Codes please contact Duran Ross, Giles Crown, Geraint Lloyd-Taylor, or your usual Lewis Silkin contact.

Ground Hog Day for the Press

Thu, 06 Dec 2012 10:23:00 Z

Anyone familiar with the wonderful film Ground Hog Day will be reminded of the central premise: a recurring day with no change of circumstances. It is difficult not to be reminded of this film when watching the press and politicians assuring us all that there will now be a tough regulatory system which will them all in check.

This was of course said about the Press Complaints Commission back in 1991, and insisted upon subsequently by the very same editors as were entertained yesterday at Downing Street in the face of all evidence to the contrary. As to the independence of the PCC; it was set up by the Press, its commission appointed by the Press, funded by the Press, its code written (exclusively by the Press) and 7 of the 17 commissioners were serving editors. Any suggestion that such a body was independent was inevitably going to be absurd, but the Press felt able to advance it anyway because of the lack of political will to change them.

As to the question of toughness; it is being said by David Cameron and the denizens of the Press that this tough new regulator will have the power to inflict £1m fines. That is all very well assuming that those that make the decisions about sanctions are truly independent. The PCC had the power to order prominent apologies. It never did – and in particular no front page howler that I know of was ever “remedied” by a front page correction via the PCC.

Aware of this, I recently won a front page apology for the TV presenter Holly Willoughby. I was only able to do so however because I also had the threat of legal proceedings. No newspaper is however going to be afraid of a fine that realistically they know is never going to be inflicted on them. That is why it is principally the issue of independence which will determine whether the new regulator is any more effective and independent than its three predecessors.

As to the politics; there could be little more compelling evidence of the continued influence that Fleet Street has over politicians than the depressing failure by David Cameron to accept Lord Justice Leveson’s almost inevitable conclusion; that the new press-constructed regulator should be underpinned by statute. He had the golden opportunity to do so presented to him by both his rival party leaders doing the honourable thing and endorsing Leveson in full. David Cameron’s subsequent lionisation by the newspapers for his “brave stand” was grotesque. It was nothing of the sort.

Hopefully voters at the next General Election will ignore the urgings of the Press to endorse their champion, and David Cameron will be punished for capitulating to the Press at so critical a moment when we all needed to see the country’s leading politician finding the moral courage to demonstrate true independence on his part from the Press.

This article was written for inclusion in The Social Partners regular Thursday update.

Brand Academy 2012

Fri, 05 Oct 2012 14:40:00 +0100

There are only a few places left for Lewis Silkin's Brand Academy this Thursday 11 October, so register now! Join hundreds of industry leaders for an exciting debate on topical issues for brands and IP. Network with General Counsel, Heads of IP, CEOs, CFOs, Directors and Chief Marketing Officers from a broad spectrum of sectors.

Attendees will have the opportunity to put forward questions to the panel in advance, so this is a great chance to seek the opinion of industry leaders directly.

You can find more information about Brand Academy 2012, and register here.

Olympics - Key dates all advertisers should put in their diaries

Tue, 17 Jul 2012 12:14:00 +0100

In case you hadn’t noticed, the Olympic Games are nearly here. The opening ceremony will soon be upon us, so we’ll finally know whether or not the rumours are true...is it really going to be an Olympic-sized scene from Emmerdale, complete with real rain...?

In the meantime, all brand-owners and agencies would do well to mark the following key dates in their diaries (see below).

It is also important to note that, from now on, in addition to the thousands of security guards, police officers and soldiers on the streets, by 18 July there will be over 280 enforcement officers from the Olympic Delivery Authority pounding the streets around the Olympic venues. These enforcement officers will be on the lookout for any ‘ambush marketing’ activity i.e. brands creating an unauthorised or misleading association between themselves (or their products/services) and the Games. Under new (and thankfully temporary) legislation, these ‘enforcement officers’ have even greater powers than the police, and have the power to enter premises without a warrant in some circumstances to put a stop to any unauthorised ambush marketing activity, and could bring court action in some cases.

Key Dates

18 July	The Olympics ‘blackout period’ begins. Under Rule 40 of the Olympics Charter, Olympic athletes, coaches, trainers and officials must ensure that they are no longer featured in any advertising from this day until after the blackout period is over (on 15 August), unless they have obtained permission from the IOC, otherwise they could face fines, expulsion from the Games themselves and/or removal of their accreditation. This prohibition includes the use of their image (or other representation, such as a caricature), name and ‘sports performance’. Some exceptions will be made for official sponsors who have been granted permission and some very limited ‘deemed consents’. Those relying on ‘deemed consent’ must ensure it still applies during the blackout period, because many types of deemed consent will not. Whilst the responsibility for complying with this rule ultimately lies with the individual athletes, in practice brand owners and agencies who featured athletes in their advertising campaigns in the run up to the games will have to abide by their contractual (and moral) obligations to stop featuring the athletes in their ads from 18 July onwards. Those who fail to pull the relevant ads (including billboard ads, press ads, on-pack promotions, in-store promotions and websites) risk undoing all of the goodwill gained from using those athletes in the first place, and will no doubt be caught up in a PR maelstrom. If you want to test the theory that there’s no such thing as bad publicity – now would seem to be the time! Note that this ‘blackout period’ relates to Olympic athletes, coaches, trainers and officials, so Paralympic athletes can still be featured in advertising in principle, provided there is no unauthorised or misleading association with the Games or use of any Olympics related trademarks, protected words or symbols, copyright materials, etc.
26 July	Olympics opening ceremony.
27 July to 12 August	The Olympic Games 2012 take place. Note that even after the Games end, it is still not permissible to use Olympic athletes in advertising for three full days after the closing ceremony.
16 August	The Olympics ‘blackout period’ for Olympic athletes, coaches, trainers and officials is lifted. From this date on it will be safe to use them again in advertising, provided there is no unauthorised or misleading association with the Games or use of any Olympics related trademarks, protected words or symbols, copyright materials, etc.
21 August	The Paralympics ‘blackout period’ for the Paralympic athletes, coaches, trainers and officials begins. Note that this ‘blackout period’ relates to Paralympic athletes, coaches, trainers and officials, and not to Olympic athletes.
29 August	The Paralympics opening ceremony.
30 August to 9 September	The Paralympic Games 2012 take place.
13 September	The Paralympics ‘blackout period’ for the athletes, coaches, trainers and officials ends. From this date on it will be safe to use them again in advertising, provided there is no unauthorised or misleading association with the Games or use of any Olympics related trademarks, protected words or symbols, copyright materials, etc.

For more information please contact Geraint Lloyd-Taylor or your usual Lewis Silkin contact.

Referee mistakenly shows Rooney the red card

Thu, 21 Jun 2012 14:25:00 +0100

On the morning of Wednesday 22^nd June, Wayne Rooney should have woken with a well deserved sense of satisfaction, with his goal the previous evening having taken England to the top of Group D in Euro 2012 and a quarter final game against Italy.

It was therefore an act of ingratitude bordering on the treacherous for the Advertising Standards Authority to choose that morning, of all mornings, to condemn Wayne Rooney and Jack Wilshere for failing to make clear the commercial nature of their Tweets. Was their public condemnation so urgent? Could the ASA not have waited until England are knocked out? It probably won’t be a long wait after all!

Back in January, Wayne had tweeted "My resolution - to start the year as a champion, and finish it as a champion...#makeitcount gonike.me/makeitcount", while Jack had said "In 2012, I will come back for my club - and be ready for my country. #makeitcount.gonike.me/Makeitcount". (OK, it’s looking better for Wayne than Jack...)

Apparently there was 1 complaint from someone who challenged whether the tweets were obviously identifiable as marketing communications, but that was enough to trigger an investigation. History does not record the nationality of the complainant, but we suspect the French.

Nike’s defence pointed to the context of the Tweets. Their followers were likely to know that they and their teams are sponsored by Nike. The body of the tweets contained the Nike URL and campaign strap line, so it would be sufficiently clear that those tweets were advertising.

The ASA has taken a very strict approach, concluding that the average Twitter user follows several people and receives multiple tweets which they may scroll through quickly. As each and every commercial Tweet must be obviously identifiable as a marketing communication, there was a breach because the Nike URL and strap line could be missed and “not all Twitter users” would be aware of the relevant sponsorship deals. The ASA have insisted that a hashtag such as #ad should have been in the body of each Tweet.

The ASA is applying the CAP Code to the letter and consistently with the other guidelines, such as those issued by ISBA and IAB. We agree that the Tweets were marketing, but this approach lacks nuance and ignores the fact that the primary source of this regulation, the Consumer Protection Regulations 2008 states that misleadingness should be assessed by reference to the average consumer from the relevant group. The average consumer is deemed to be reasonably observant and circumspect. Surely the average follower of Wayne and Jack respectively were not likely to be misled by these tweets.

We would like to see the ASA to credit the average Twitter follower of Jack and Wayne with a little more intelligence and rather greater powers of observation. After all, as we know now following Wayne’s dispatch of the Ukrainians on Tuesday night, you don’t have to be stupid to be an England fan.

ICANN has published the full list of applied for gTLDS

Wed, 13 Jun 2012 17:35:00 +0100

It is a very exciting time for the online world. However, there are also imminent dangers for brand owners, trade mark holders and businesses alike. The Internet Corporation for Assigned Names and Numbers (“ICANN”) has recently allowed for a radical increase in the number of Top Level Domains (“TLDs”), such as .com and .info. ICANN has today published the full list of applicants and strings that have been applied for and you can find the list here: http://newgtlds.icann.org/en/program-status/application-results/strings-1200utc-13jun12-en

Now that the list has been published, we are able to evaluate the potential risks to your brands and businesses. This is a serious concern for everyone. Please note that this is not just an issue for brand owners and trade mark holders. As you can see, applicants have applied for generic gTLDs, such as .blog, .beauty, .fashion and .media. Further issues will also follow once the gTLDs go live, as anyone will then be able to register brands as “sub-domains” (the part before the gTLD, such as lewissilkin.advertising).

The next steps are as follows, so even if you haven’t applied, it is important to prepare and get involved if there are any potential threats to your business:

13 June 2012 – “Reveal Day”: announcement of all applied-for domain names
13 June 2012 – Application comment period begins and formal objection period begins
12 July 2012 – Initial evaluation begins
12 August 2012 – Application comment period ends

You will now need to prepare to launch official objections with ICANN if you are concerned about any of the applied for gTLDs. Plus, you will also need to prepare to protect your brand from unwanted registrations once the gTLDs go live. ICANN have promised a “Trademark Clearinghouse” which is expected to play an important role in the launch of the New gTLD Program and in ensuring ongoing protection of trademark rights. The Trademark Clearinghouse will accept and authenticate rights information, and will support both trademark claims and sunrise services, required in all new gTLDs.

We at Lewis Silkin can help you with any queries that you may have about the new gTLDs, so please do not hesitate to give us a call.

ICO issues last minute further cookie guidance

Fri, 25 May 2012 11:26:00 +0100

This morning the ICO has issued further updated advice and guidance on changes to the EU cookie law. This is the third version of the Guidance in a little over a year. The Guidance now confirms that an implied consent mechanic, rather than an explicit opt-in mechanic is a valid form of consent to comply with the new law. In particular, the ICO has confirmed that a user’s consent can be inferred from moving from one page to another on a website provided that the user has a reasonable understanding that by doing so, they are agreeing to cookies being set.

The new Guidance has also addressed the issue of “prior” consent. Whilst the ICO state that wherever possible the setting of cookies should be delayed until users have had the opportunity to understand what cookies are being used and indicate their consent, where this is not possible at present websites should be able to demonstrate that they are doing as much as possible to reduce the amount of time before the user receives information about cookies.

The revised Guidance also contains useful information about the nature of the information that must be provided to users and the transparency of that information by reference to certain key factors, including the nature of the intended audience of the website.

Further key aspects of the guidance:

The ICO suggest that including information about the use of cookies in a general privacy policy is not sufficiently prominent.
As far as enforcement of the new rules is concerned, the ICO has confirmed that from 26 May 2012, it will consider complaints made by users about cookies.
As of 26 May, organisations will need to be able to demonstrate that they have taken sensible, measured action to move to compliance and that if a website has not achieved full compliance by 26^th May, the ICO will expect a specific and clear explanation of why it was not possible to comply in time.
The ICO has also suggested that it is highly unlikely that priority for any formal action will be given to focusing on uses of cookies where there is a low level of intrusiveness and risk of harm to individuals, provided an organisation can demonstrate that it has done everything it can to clearly inform users about the cookies in question. As such, the ICO is unlikely to prioritise for enforcement first party cookies used for analytical purposes and cookies that support the accessibility of websites and services.

We will be producing a further detailed note of the Guidance in due course but in the meantime, the ICO Guidance can be found here.

Health claims made about foods – new rules officially bite

Thu, 17 May 2012 14:45:00 +0100

On 16^th May 2012, after a 2½ year delay, the EU Commission adopted a Regulation that sets out a list of just 222 authorised health claims that can be used on food labelling and in related advertising. The aim is to protect consumers from claims that are misleading or insufficiently supported by scientific evidence.

A health claim states or implies a specific relationship between a food or ingredient and health, and is caught by the Regulation when used in the labelling, presentation or advertising of foods aimed at the end consumer. Health claims subject to the new Regulation (for example, claims on a link between Vitamin C and the immune system or between Omega 3 and the joints) should be distinguished from nutrition claims (for example, “source of vitamin C” or “low-fat”) for which EU rules are already well established.

The EU Register sets out details both of the authorised health claims and of those that have been rejected. You can view the Register here.

The Commission originally received submissions of over 44,000 claims, but this has been hugely reduced by a process of de-duplication and consolidation, and the remaining claims were then subjected to detailed scientific scrutiny by the European Food Safety Authority (“EFSA”). In addition to the 222 claims that made it all the way to approval, there are also some categories of claim for which the evaluation process is not yet complete: the Register will be updated in due course once a decision has been reached for them.

There is now a six month grace period until 1^st December 2012 during which food business operators can adapt to the requirements of the Regulation. However, I recommend that you tread with caution because in the interim health claims must still accord with the national provisions of the country in which they are made. This means any health claims made in marketing communications must comply with the CAP and BCAP Codes in the UK.

For the past couple of years, the Advertising Standards Authority (“ASA”) has been taking into consideration the EFSA scientific opinions, which have been available for some time, in the course of their investigations. My view is that the ASA is only likely to be persuaded to take a contrary view to that of EFSA and the EU Commission if an advertiser has additional groundbreaking evidence to substantiate the health claim which would not have been considered by EFSA. This is a high hurdle.

The law and regulation on health and nutrition claims on foods and food supplements is a complex and tricky area. For further information, please contact Helen Bowyer.

ICO signals implied consent approach for cookies

Thu, 19 Apr 2012 17:15:00 +0100

A senior official at the Information Commissioner’s Office (ICO) has signalled that ‘implied consent’ is likely to satisfy the requirement to obtain users’ consent when using cookies, provided that users have been given clear and comprehensive information about the type of cookies being used.

The revised ePrivacy Directive – dubbed the ‘cookie law’ – requires those dropping cookies (or similar technology) to obtain users ‘informed consent’. Concerns have been expressed that ‘informed consent’ may mean ‘explicit consent’ (i.e. ticking a box) - at least in respect of cookies that have a bigger privacy impact, such as those used for online behavioural advertising.

However, at a recent industry event a senior ICO representative suggested that where a website contains a prominent notice (e.g. in a banner) stating that the site uses cookies and the purpose of such cookies, then the act of a user navigating to the next page will be sufficient to obtain consent.

Whilst such an approach may not strictly comply with the law, it seems that it will avoid official enforcement action.

Updated guidance from the ICO is expected before the end of May when the ICO is due to start enforcing the revised law. It is expected that the revised guidance will provide clarity around implied consent and the use of cookies for analytics (in relation to which the ICO has stated that it is unlikely to take action provided users have been given clear information) and the ICO’s regulatory priorities (i.e. where it is likely to take enforcement action).

For more information please contact Simon Morrissey, James Evans or your usual Lewis Silkin contact.

Experiential Marketing gets all grown up, with its own Code of Practice

Fri, 09 Mar 2012 16:05:00 Z

The Institute of Promotional Marketing (IPM) has announced the 1st edition of The Experiential Marketing Code of Conduct. Some types of experiential marketing are already covered by the Advertising Standards Authority and the CAP Code, such as the content of leaflets handed out during an experiential campaign, as well as any promotional prize draws or competitions run during an experiential marketing campaign. The Experiential Marketing Code has been drawn up and adopted by the IPM to cover types of experiential marketing which are not currently covered by the CAP Code, with the aim of ensuring that experiential marketing is conducted in a legal, decent, truthful and respectful way of consumers.

The main focus of the new Code is to cover brand ambassadors used by brands and marketing agencies, who carry out activities such as sampling, face to face marketing and live performances to promote a brand. It doesn’t cover brand ambassadors in the sense of celebrities or talent who are recruited to be the face of a brand in advertising and other promotional messages.
Some of the rules in the new Code include:

Experiential marketers must respect the public and not for example force a product or sample on them
Experiential marketing must be sensitive to the location in which it is conducted. For example, special consideration needs to be given before doing a leafleting campaign in a London Underground station (because of litter concerns), or a sampling marketing activity near a religious place of worship or a school
Special rules on experiential marketing for food brands, including rules about making sure allergy and ingredient information is prominently displayed
Special rules on experiential marketing for alcohol brands, which largely extends the CAP Code on advertising alcohol to experiential marketing (eg, the experiential campaign can’t imply social success, link alcohol with sexual activity or seduction or encourage anti-social behaviour). There are also guidelines when employing brand ambassadors to give out samples of alcohol where the brand ambassador is over the age of 18, but under the age of 21
Other specific rules on experiential marketing for financial services, gambling and lotteries
Experiential marketing aimed at children must comply with the general CAP Codes on not taking advantage of children’s vulnerability or credulity, such as by encouraging pester power or encouraging dangerous activity
No food or drink samples should be given to children under the age of 12 without their parent’s consent
Health and safety rules about conducting risk assessments of all places where experiential marketing are going to take place
Marketers must dispose of all litter caused by experiential campaigns
Marketers must have adequate public liability insurance for their campaign

It's all good common sense stuff, which if followed and adopted by the industry, should help in raising the bar on standards of experiential marketing.

So how is it going to be enforced and what happens if marketers don’t comply?

Well, for now at least, it is being adopted by trade bodies and will be enforced through trade associations. Ultimately, failure to follow codes adopted by trade bodies could lead to expulsion as a member. The IPM has already adopted it, and I understand that the Direct Marketing Association is about to adopt it. Other trade bodies like the Advertising Association and the Portman Group (for alcohol) contributed and helped write the Code, so they will presumably also adopt the Code. But for now, it’s not going to be enforced through a complaints procedure and self-regulatory body like the ASA and CAP Code.

However, one other method of ensuring compliance with the Code remains, and this will probably be one of the biggest sticks to ensure compliance with the Code for experiential agencies. Most agencies will have signed up to contracts with their clients, and most of those contracts will have a clause somewhere which states that the agency must comply with all relevant UK laws, regulations and codes of practice. So, even if there isn’t a self regulatory body policing compliance with this Code at this stage, advertisers may well threaten to terminate contracts with agencies, or even sue for damages if agencies don’t comply with the new Experiential Marketing Code.

You can find the full text of the Code here.

Snickers Tweets cleared by the ASA

Wed, 07 Mar 2012 14:22:00 Z

The ASA has this morning (7th March 2012) announced that it has decided not to uphold the complaints about the recent high profile Twitter campaign for Snickers. For those who are not familiar with the Snickers campaign, the story goes like this.

Snickers, through its parent company Mars, arranged for four celebrities to make humourus but rather incongruous tweets in quick succession. These four initial tweets made no reference to Snickers, but in the fifth and final tweet, all was revealed. That “reveal” tweet said “You are not yourself when you are hungry @SnickersUK #hungry #spon”. For example, as well as the Katie Price examples above, Rio Ferdinand tweeted about his new found love of knitting with tweets such as “Can’t wait 2 get home from training and finish that cardigan”!!”

Once all was revealed, this campaign attracted the ire of one particular journalist who tried to argue that the fact that the initial four tweets were not marked “#spon” was in breach of the ASA and Ofcom regulations concerning misleadingness and the recognition of advertising communications.
Happily, the ASA has taken a more reasoned approach which means that it will be possible to run teaser and reveal campaigns in Twitter, just like any other media.

The ASA rejected the argument by Mars that the first four tweets which made no reference to Snickers were simply not marketing communications. They pointed out that there had been other marketing activity around the “You’re not yourself when you’re hungry” campaign, such as the television commercials featuring Joan Collings and Stephanie Beecham, and the initial tweets formed part of that overall marketing activity.

But the ASA accepted that the four tweets were all in quick succession and that together with the fifth reveal, they should be considered together as a whole. On that basis, the campaign was identified as a piece of paid for marketing in accordance with the CAP Code and by implication with the OFT Guidelines on celebrity endorsements using social media.

This decision is consistent with the way the ASA treats these “teaser” campaigns in other media. It would have been a great shame if the purists who would like to see Twitter as a commercial free zone had managed to deny advertisers and consumers the ability to enjoy this type of campaign using Twitter. Not only is it a victory for common sense, but also for the principle that the average reasonable consumer is reasonably well informed and circumspect and not a naive innocent who needs to be protected from all forms of marketing. Most users of Twitter, even those who had never seen a television campaign, might have been able to guess that something was up when Rio started tweeting about knitting and Katie about quantitative easing.

You can read the full ASA decision here. This will open in a new window.

EU Commission announces major shake-up of data protection rules

Mon, 30 Jan 2012 15:39:00 Z

The European Commission has published proposals this week for a comprehensive overhaul of the EU 1995 Data Protection Directive. If adopted by the European Parliament, these proposals will cut red-tape and streamline data protection rules across Europe but will also impose some significant new obligations and liabilities upon organisations that process personal data.

The proposed reform has been introduced in response to criticisms that the current data protection framework has failed to respond to technological developments and the increasingly global nature of data processing leading to widespread mistrust among consumers especially in relation to how their personal data is used online.

The proposed changes are intended to increase consumer confidence in data protection, whilst reducing the administrative burden on business through a single harmonised set of rules across Europe.

The key changes proposed include:

scrapping the current legal obligation to notify data processing which is estimated to cost businesses €130 million per year
reducing bureaucracy by requiring companies to report to a single national data protection authority in the EU member state in which they have their main establishment to replace the existing system of multi-jurisdictional reporting obligations
creating a level playing field by applying EU data protection rules to companies outside the EU who provide goods and services or otherwise process personal data within Europe
a mandatory obligation to appoint a data protection officer for organisations with more than 250 employees or those that systematically monitor citizens
a mandatory obligation to report data security breaches promptly and, where feasible, within 24 hours
empowering EU citizens with new rights of “data portability” to transfer personal data from one service provider to another and a “right to be forgotten” to require service providers to delete all personal data
introducing the principle of “privacy by default” meaning the default settings for any online service should be those which provide the greatest privacy for consumers and requiring mechanisms for obtaining consent to process personal data to be based on explicit and informed prior consent
substantially increasing the powers of national regulators to levy fines of up to €1 million or 2% of an organisation’s global annual turnover

The Commission believes the proposed harmonisation of data protection law will result in cost savings of around €2.3 billion per year and foster a single digital market to support economic growth and job creation but the new changes will also create some new challenges for online service providers.

There are no guarantees that the current proposals will become law. Before the proposals can come into effect they will need to be approved by the EU member states and ratified by the European Parliament. This process is likely to take two years or more, during which time the proposals could be watered down or rejected.

Find further details of the Proposals on the European Commission's website here.

Mercedes criticised by ASA for handling of vote rigging in competition

Fri, 20 Jan 2012 18:03:00 Z

Mercedes has landed itself in hot water with the Advertising Standards Authority (“ASA”) in the UK for the way it handled an online competition to win a Mercedes-Benz Vito van, which ran from June to September last year.

Participants were invited to create a video or photo with a caption demonstrating why they should win a new Vito van. A judging panel from Mercedes-Benz picked ten finalists, and the public were asked to vote for their favourite out of the finalists. As is usual with UGC competitions of this kind, voting was limited to one vote per person. The entrant with the most public votes at the end of the voting period was the winner. Interest in the competition was high, not least because the winner would be given a Vito van.

Once the public voting round began, one of the shortlisted finalists complained to Mercedes-Benz that two of the other finalists were appearing on third party websites soliciting strangers to vote for their entries under various incentive schemes (such as giving reciprocal votes for other online competitions and offering payment for votes). She asked for clarification as to whether this was allowed, as the terms and conditions of entry into the competition did not state whether this type of “incentivised” voting was prohibited.

Unfortunately for Mercedes-Benz, there was a considerable delay in responding to the query, because the email was held in a spam filter. By the time Mercedes-Benz looked into it, more than two weeks had elapsed. During this period, given the lack of response from Mercedes-Benz, and given her understandable wish to put herself in the best position to win the public vote, the complainant had started using third party websites to solicit votes for herself as well.

When Mercedes Benz did jump into action, they changed their terms and conditions of entry to clarify that buying votes in this way was prohibited, and that anyone seeking votes in this way would be disqualified. They then disqualified not only the original two finalists who had participated in buying votes, but also the complainant who had originally brought this to their attention, given that she had also started buying votes from third party websites. The complainant complained to the ASA and challenged whether the competition had been administered fairly.

Unsurprisingly, the ASA concluded that the complainant had justifiable grounds for complaint, given that she was disqualified for engaging in practices that were not prohibited in the original terms and conditions.

What lessons are to be learned for all promoters?

Vote rigging and fraudulent voting in online UGC competitions is a major issue at the moment. Brands and agencies should make sure they are absolutely clear in their terms and conditions that fraudulent or deceptive voting practices are not permitted and will lead to disqualification. There is also a lot to be said for making the public voting round the penultimate round of the competition rather than the final voting round, because of the risks of fraudulent voting. We are increasingly advising clients to make sure the final round is judged by the brand, to ensure that any undesirable participants who are suspected to have participated in vote rigging can be weeded out at that stage. Other solutions include having several voting rounds which average out votes from the public and panel of judges, which can be structured in a way to minimise the risk of anyone engaging in vote rigging.

Whatever solution brands choose to adopt, vote rigging in popular UGC competitions will continue to be a significant risk for brands, and brands need to grapple with this issue at the outset of promotions when drafting legal terms and conditions – not, as Mercedes-Benz did, once the promotion is underway. Mercedes-Benz may have been singled out in this ASA decision, but vote rigging is so common place these days, it won’t be too long before we see another promoter land in trouble with the ASA on this topic.

Victory for common sense at the ASA

Fri, 06 Jan 2012 15:12:00 Z

On the basis that “Man bites dog” is news, it is great to report that the year has started with a victory for common sense at the Advertising Standards Authority.

The image shown was used as a poster ad by Miller for their Peroni brand.

Only one person complained to the ASA about the advert, but that person was a member of the House of Lords. Consistent with their general practice of not naming complainants unless they are competitors, the identity of the anonymous Parliamentarian has not been revealed by the ASA. However, his complaint may have the perception of greater weight because of his status, so there is a question over the wisdom of this policy. It gives Members of Parliament the power to make complaints which appear to have greater moral authority, without having to take any responsibility for their actions.

Happily, however, the ASA maintained an even handed approach. While they accepted that the complaint should be investigated, they ultimately decided that it should not be upheld. Miller pointed out that the advert had been reviewed through its’ own internal Sales and Marketing Responsibility Committee, as well as the CAP Copy Advice team. Miller also explained that the advert did not irresponsibly link the consumption of alcohol with driving because the Fiat 500 is left hand drive and the model is sitting on the right; no driver is shown and it is clear that the car is not in motion and there is no product shot or depiction of drinking. Nor is there any implication that the model has been or is about to drink any Peroni. The ASA accepted these arguments and decided not to uphold the complaint.

So what lessons can be drawn from this investigation?

Firstly, any connection with alcohol and certain activities, such as driving or water sports, are inherently risky, however much due diligence an advertiser carries out.

Secondly, there are special interest groups and individual MP’s who will complain about almost any alcoholic beverage advertisement, so be prepared to mount a defence.

Thirdly, and more positively, this investigation and a recent detailed investigation into advertising by Heineken, which was also not upheld, suggests that provided advertisers carry out rigorous due diligence and then ensure that they provide a comprehensive and intelligent response to an ASA investigation, it is possible to successfully defend advertising in this sector.

Finally, an interesting footnote is that during the course of its’ response to the investigation, Miller said that in order to demonstrate its’ commitment to discouraging drinking and driving, it would volunteer not to use the image again. The ASA’s assessment makes no comment about that offer and states that no further action is required, so it is not entirely clear whether Miller would be free to run the advertisement again, should it wish to do so.

Beverage report

Tue, 20 Dec 2011 17:19:00 Z

Alcohol marketing is a rum old business, rendered all the more whisky by the tricky judgement calls that must be made.

Campari and contrast

The ASA itself is aware of this, recently issuing a press release about two drink related adjudications with the witty title “Under the influence (of the ASA)” 1.

The first related to a fantastical ad for Heineken featuring a charming man’s exuberant entrance to a fun-fuelled party. It was found not to be in breach of ad rules because the success and popularity of the main character was not dependent on the consumption of alcohol. By contrast (apparently), an ad for Celldrinks featuring a freerunner not spilling his drink was found to make unacceptable links between alcohol and daring feats. Quite a fino distinction really....

Trouble brewing

Marriage: enough to turn anyone to drink? Picture the scene, an elderly woman holding a pack of PG Tips declaring “I buy this tea for my husband. He likes tea” and then holding a pack of Aldi tea bags saying “He also likes this one”. So far, so dull and domestic. It was her next line that caused a stir: “I don’t like tea. I like gin”. Nevertheless, the ASA didn’t see this ad as one too many. Because the woman did not appear drunk nor glamorised alcohol, the ad was just a humorous depiction of a person’s preferred tipple. Anyone for a “G and Tea”?

Last Orders in Scotland

North of the border, 1 October 2011 saw the pint of no return for BOGOF offers and 3-for-2s in off-licences, as a new Alcohol Act was introduced: the Scottish Parliament is not taking halfmeasures. In response, CAP and BCAP have issued guidance to meet concerns that consumers could be dispirited by ads elsewhere in the UK implying that multi-buy bargain booze offers are also available in Scotland.

1 We think the ASA should leave the puns to Newsnotes...

Whats their beef

Tue, 20 Dec 2011 16:44:00 Z

Procedural changes are afoot if you want to complain to the ASA about your competitor’s ads. But first, an example of old-style wrangling...

Meaty dispute

The ASA recently had to adjudicate in a tasty spat between competing gravy granule producers. Bisto-owning Premier Foods disputed claims by Unilever, purveyor of Knorr granules, that its product had “unbeatable taste vs. Bisto”. The ASA concluded that Unilever didn’t have the necessary “Knorr how” when it came to comparative advertising, as their test results “did not show that Knorr was unbeatable for smell” 1, and insufficient information was given for consumers to verify the comparisons made.

The flavour of things to come

Bisto ah not alone: according to the ASA, competitor kerfuffles are commonplace, accounting for 18.5% of formally investigated complaints in 2009. But with the gravy-train of ASA complaints pouring in – spiced up by the extension of the ASA’s digital remit earlier in 2011 – the ASA is hoping some procedural changes can limit the flow of competitor clashes to more of a trickle.

From 1 December 2011, businesses will “normally” have to prove that they have attempted to resolve any beef they have directly with the competitor, before complaining to the ASA. A letter setting out the issues must have been sent by registered post to a suitable competitor executive, and 5 working days allowed for response 2.

Taking stock

The ASA will review these changes after 12 months; and from January 2012 it will also examine the competitor complaints it receives on a quarterly basis to see whether CAP or the ASA should intervene in disputes (presumably where there are repeated or tit-for-tat ding-dongs).

1 "Aroma” would have been the kinder word. In fact, both Knorr and Bisto were beaten in the smell stakes by an unnamed third party product.

2 See the ASA’s “Final Response to the Process Review” of 5 October 2011 for full details.

The New Reg-ime

Mon, 19 Dec 2011 16:12:00 Z

Although perhaps surprised that a man named Reg Bailey should be Chief Executive of the Mothers’ Union, advertisers must nevertheless take seriously his report for the Government – “Let Children be Children” – published in June 2011. Its findings have prompted a nappy rash of new policies and proposals.

Not kidding

In direct response to one of Reg’s recommendations, the ASA has announced a new approach to sexual imagery in outdoor advertising 1. Ads that are “no more than mildly sexual” (e.g. a topless male model) can still go out to play. Images that are “sexually suggestive” (e.g. women in sexy lingerie and/or a mildly seductive pose) are likely to require placement restrictions away from schools. And posters bearing “overtly sexual images” (e.g. steamy clinches and passionate facial expressions) are now completely grounded.

Minor miracles

The ASA is also collaborating with other media regulators such as Ofcom, ATVOD, the BBC Trust, the BBFC, PPC and VSC/PEGI to produce a new website called ParentPort. This aims to cut through the acronym alphabettispaghetti, giving parents a more palatable route for complaints about inappropriate ads, programmes, products or services.

Not to be left out of the gang, the Advertising Association came forward with its own set of Best Practice Principles 2. Based on another of Uncle Reg’s recommendations, this voluntary initiative asks brand-owners to pledge not to offer sweeties (or other rewards) that encourage children to promote goods or services via their social relationships.

Uh oh, Lola!

Demonstrating its determination in this area, the ASA in November gave a stern telling-off to Coty about a magazine ad for “Oh, Lola!” perfume. This featured actress Dakota Fanning (aged 17) in a thighlength dress and holding an oversized bottle of the perfume in a “provocative” manner. The ASA concluded that Dakota looked under 16 and so the ad could be seen to sexualise a child.

1 See the “ASA statement on sexual imagery in outdoor advertising” published 11 October 2011.

2 See the AA’s “Best Practice Principles on the Use of Under-16s in Brand Ambassador and Peer-to-Peer Marketing” published 10 October 2011.

Sales of the century?

Wed, 14 Dec 2011 15:09:00 Z

We’re all familiar with those apparently never-ending TV ads promoting sofas at rock-bottom 1 prices for a “special” sale period. For some businesses such promotions are an essential strategy, but the ASA has recently reminded advertisers that there are rules to be observed...

You Can’t Do It (Even if you B&Q it)

A promotional offer for B&Q kitchens was given a hygiene check by the ASA in August, as it did not state a closing date 2. The ASA upheld the complaint, emphasising that the closing date was a material ingredient of the offer. The addition of “see online or ask in-store for more details” was insufficient to make B&Q’s recipe palatable – consumers were disadvantaged by not being given clear information in the offer itself.

Sale must end: ASA orders

In October, the ASA upheld a complaint against The Island Furniture Company, whose website was awash with messages such as “MASSIVE SPRING SALE HURRY! Must end midnight on Sunday...” The complainant suggested that this time limit was bogus, as Island had been floating similar wording on its site for several months. The ASA agreed: the ad was sunk, as it misleadingly implied both that the promotion was shortly due to end and that the terms offered would be available only for a limited period.

Glass act

By contrast, a complaint made against double glazing company HPAS Ltd t/a Safestyle UK was not upheld. Their radio ad contained the words, “...This week only, hurry hurry...” A listener complained that the ad was not transparently accurate, as the offer had been open for several weeks. Actually, the ad had run for just one week, and then there had been a two week window before it was run again. The ASA saw through the complaint, concluding that the offer was indeed available for “one week only” each time the ad appeared.

1 Probably not the expression that sofa-retailers would choose.

2 The CAP Code generally requires a closing date to be specified unless the advertiser can demonstrate that consumers were not disadvantaged by its omission.

Crunch time for cookies

Wed, 14 Dec 2011 14:59:00 Z

The influential Article 29 Data Protection Working Party has expressed serious concerns that the IAB Europe/EASA’s self-regulatory Code of practice on online behavioural advertising 1 is a few biscuits short of a barrel in terms of compliance with EU law on cookies.

Cookie Code crumbles?

The Working Party is not ginger nuts about the Code because it fails to accord with the requirements of the Privacy and Electronic Communications Directive – implemented into UK law in May 2011. The Directive provides that storing and accessing information on a user’s computer is only lawful where the user has given his or her “freely given, specific and informed” consent, “having been provided with clear and comprehensive information... about the purposes of the processing”.

Deemed unappetising

In most cases, the Working Party says that prior informed consent on an opt-in basis is required, regardless of whether this disrupts the user experience. From this standpoint, the Code’s presumption of deemed consent in the absence of user-objection has more holes than a stick of shortbread. The Working Party is also concerned that the Code’s advertising icon is not yet sufficiently recognisable to enable users to make informed choices about cookie-tracking.

Use-by date looms

As previously reported in Newsnotes, the UK’s Information Commissioner has granted a 12 month “grace” period (ending in May 2012) during which it will refrain from enforcement activity. However, over six months into this grace period it is still unclear what website operators should do to get their bourbons in a row.

It is hoped that the Commissioner may still provide some additional iced gems of guidance for website providers, although the chances of opt-out consent being a viable option appear wafer thin.

1 European Advertising Standards Alliance’s Best Practice Recommendation of 14 April 2011, incorporating the Internet Advertising Bureau Europe’s “EU Framework for Online Behavioural Advertising”.

Flashing the flesh

Fri, 15 Jul 2011 17:57:00 +0100

In determining whether an ad is likely to cause harm or offence on the grounds of gender, it seems that the media placement, timing and likely audience can be key.

Officer’s, but not gentlemen

A prize promotion in an Officer’s Club shop window featuring a neck to waist photograph of a bikini-clad woman combined with the text ‘AWESOME VIEWS’ was found to be gratuitous, to objectify women and to be unsuitable to be seen by children. But the ASA apparently failed to pick up on the innuendo of the accompanying text ‘Start 2010 with a Bang’...

UnSuitable images

By contrast, 8ft backlit photographs of a man groping a woman’s breast and another of a man lifting a woman’s skirt to examine her knickers escaped sanction. This was because they were located in the Suit Supply store window in Westfield shopping centre, and the ASA does not have remit to investigate non-paid-for advertising in commercial premises.

Following consumer complaints, Westfield management did step in to ask the retailer to remove the photographs from its store. Facebook also demanded the removal of the images from its website following protests, although the images were still freely available on the retailer’s website.

Ooh Arr – Loverly bit of meat

Advertising definitely can’t portray women as chattels; but as cattle, it seems, is ok. An ad in the Farmer’s Guardian showed a well groomed woman in a fashion pose, sporting a cattle tag on her ear with the text ‘This season’s must have’. Complaints that the presentation of women as pieces of meat was objectionable were not upheld by the ASA, who found that because the majority of the readership of Farmer’s Guardian were male the ad was unlikely to cause serious or widespread offence!

Taming the cookie monster

Thu, 14 Jul 2011 17:47:00 +0100

Online service-providers are choking on their custard creams as a result of new legislation introducing a number of revisions to the UK’s Privacy and Electronic Communications Regulations.

That’s the way the cookie crumbles...

The revised Regulations, in force from 26 May 2011, make clear that in order to store a cookie on a user’s PC or mobile device marketers must obtain the informed, positive consent of their users. The use of “opt-outs” will no longer suffice.

There are some limited exceptions where use of cookies is strictly necessary to deliver a service a user has requested (e.g. shopping basket technology). However, in the majority of cases the new rules will require a complete rethink, to ensure that the use of cookies is transparent and meaningful consent obtained.

No slam-dunk for browsers

Marketers are offered some crumbs of comfort, in that browser settings can in theory be used to indicate consent. However, the soggy residue at the bottom of the tea-cup is that the Information Commissioner’s Office (ICO) deems current browser setting technology too inflexible to comply with the Directive. The Government is encouraging browser manufacturers to produce enhanced versions that can give consumers the necessary control over their personal privacy. But until such time as such new technological measures are wide-spread this is unlikely to provide a practical solution to the requirements of the Regulations.

Digestive pause

Official guidance for website operators in the months preceding implementation of the Regulations was distinctly halfbaked. In recognition of this, the ICO has announced a 12 month “lead-in” period (ending in May 2012) during which it will take no enforcement action provided that an organisation is taking proactive steps to review its existing use of cookies and to develop a compliance plan 1.

1 You can read the ICO guidance on planning for compliance here.

Ads take a lashing

Wed, 13 Jul 2011 17:44:00 +0100

The cosmetics industry has long sold its products on the basis of hopeful claims and images of aspirational beauty. But the use of pre- and postproduction techniques has increasingly been seen by regulators, politicians and the public as needing a make-over.

You couldn’t make it up

The problem is that the ASA’s approach to production techniques has itself not always been entirely wrinkle-free. It seemed that it was acceptable for Elvive to feature a bouncy Cheryl Cole (whose “mojo” came in the form of acrylic hair extensions) in their shampoo ad, but not ok for Rimmel to use various sizes of lash inserts in their mascara ad.

Judgement of Paris

A recent Help Note 1 from Laboratoire CAP/BCAP is designed to help distinguish between ads that are beautifully creative on the one hand and those that are an ugly business on the other. It highlights in particular the types of production technique that may run the risk of misleadingly exaggerating the effects of a cosmetic product.

The guidance clarifies once and for all that the use of lash inserts that are longer or thicker than the model’s lashes, and the use of excessive hair extensions, is likely to be misleading, unless the same effect could have been achieved without the falsies. Any image re-touching which is relevant to the performance of the advertised product (e.g. removing stray hairs for a product for flyaway hair) is also likely to be unacceptable.

This Newsnote is digitally enhanced?

The Help Note makes it clear that the use of superimposed text containing qualifications or disclaimers will not help the advertiser where an advertisement is “inherently misleading”. Rest assured, this Newsnote is a model of transparent clarity, needing no artificial intervention to boost its natural allure. If only the same could be said for our writing team (see pp 2-3)...

1 “The use of production techniques in cosmetics advertising”, CAP/BCAP, 4th April 2011

If you can't stand the heat...

Tue, 12 Jul 2011 17:33:00 +0100

It is always tempting for brand owners to thumb their noses at their competitors with a bit of comparative advertising, but this strategy must be handled with care as illustrated in the recent case of Rockwool v Kingspan.

Fiery dispute

Things had already been heating up between the two manufacturers of fire-safe insulation materials, leading to a number of ASA adjudications. So Rockwool were perhaps pushing their luck when they took their fire-reaction test on tour, using videos and road-show demos to claim superiority. Kingspan responded with all guns blazing and the two re-kindled their dispute in front of the High Court.

Campaign turns to ashes

In its judgment the court put a real dampener on Rockwool’s comparative approach, finding that the videos and road-show demos were misleading and failed objectively to compare features of the products, and that Rockwool had infringed Kingspan’s trade marks. The decision confirms that flouting the conditions laid down in the Misleading and Comparative Advertising Directive can be a sure-fire way to get your fingers burned.

In an innovative move, Kingspan also asked the court to grant declarations of fact about whether Rockwool’s campaign satisfied the requirements of the Directive. The court confirmed that it would be willing to do so in cases where a declaration can “resolve an issue of real substance between parties” – perhaps a useful new weapon in the brand-owner’s armoury?

The kid-gloves are off

By contrast, Sky was adjudged to have played by the rules in its recent press ad which showed a Billy goat “trip, trapping” into a 2-year fixed-term contract with BT, rather than opting for Sky’s own 1-year TV/broadband/call package. Despite BT’s bleating about misrepresentation, the ASA decided that Sky’s “trip, trap” reference did not impute any dishonesty in BT’s business practices, which must have really got their goat...