The ASA opens a can of worms

In a worrying sign of an increasingly literal approach to advertising regulation, the ASA has banned the rather excellent television commercial for Heinz Baked Beans created by Bartle Bogle Hegarty on the back of 9 complaints. Why? Because it showed children and young people using empty cans to beat out a tune and it is possible that a “hand or finger could be inserted into an open tin (with the associated risk of cuts)”.

The performers in the ad are shown flipping and twirling the can very proficiently and the ASA feared that children who emulated the performers might be less dextrous and end up with a cut hand.

Well, yes, logically, that must be possible. Indeed, it transpires that when the ad was shot, in an abundance of caution, the production company put tape over the rim of the can to prevent any such accidents. Perhaps mindful of these litigious times, the social media videos that were part of the campaign included instructions on how to prepare a can and recommended that the open end of the tin should have tape put over it avoid cuts.

Clearcast confirmed that they had cleared the ad for broadcast on the basis that they did not consider the behaviour to be dangerous, harmful or reckless. You can judge for yourself by visiting The Guardian.

The BCAP Code says “Advertisements must not include material that is likely to condone or encourage behaviour that prejudices health or safety” (Rule 4.4) and “Advertisements must not condone, encourage or unreasonably feature behaviour that could be dangerous for children to emulate” (Rule 5.2).

Was the fact that Heinz protected the actors and gave the safety tip in social media prejudicial to the defence of the investigation? Even if there is small risk of a minor injury to a child, is that really sufficient to necessitate banning the ad? At what point is a risk so remote and the likely injury so minor that the ASA would be happy?

The ASA was clearly concerned by the risk of kids emulating the ad, but in other recent adjudications concerning emulation they have come to very different conclusions, provided no kids were involved or the scene was so fantastic, that emulation would be difficult if not impossible. In fact, on the very same day as the Heinz decision, the ASA decided not to ban a TV ad for Universal Music TV showing drivers and passengers singing and dancing to some music, with the drivers lifting their hands from the steering wheels and glancing at the passengers while driving. While there were no children involved, surely driving without due care and attention is a more immediate risk with more dangerous consequences than banging out a tune on an empty tin of beans?

In another celebrated case from 2015, the Independent Reviewer of the ASA asked the ASA Council to reconsider a decision to uphold a complaint about a TV ad for Cycling Scotland which showed a cyclist “without a helmet or any other safety attire, who was cycling down the middle of the road rather than one metre from the curb.” Having initially upheld the complaint, the ASA then decided that the complaint should not be upheld because there is no legal requirement to wear a helmet and the ad was aimed at motorists, not cyclists. Most parents would never let their children ride a bike without helmet, but would be reasonably sanguine about them drumming on one of empty can of beans without having first covered the open end with tape!

On the other hand, despite the numerous reports of young men being seriously injured after over indulging on alcoholic beverages, in 2013 the ASA decided not to uphold complaint about a TV ad for Carling cider which showed a man bungee jumping and performing an “apple bobbing” stunt at the same time, on the basis that it was unlikely to link alcohol with daring behaviour. Apparently bungee jumping is less daring that twirling an empty can of beans while simultaneously drumming out a tune.

Even more on point was the ASA’s decision early this month not to uphold complaints against Nike on the basis that its tv ad was so fantastic that it could not be replicated. The decision was made under Rules 4.4 and 5.2, just like the Heinz ad, but with an additional issue around the absence of a scheduling restriction. The ad shows two basketball players in a vehicle crash test centre. One of them crouches on the roof of a moving van which is then crashed into a barrier. While it’s true that it would be easier for a child to replicate the use of an empty can than riding on the roof of a car, the injuries that would be likely to occur if they did so would be of an entirely different order of magnitude from those sustained by cutting a hand on a can.

So we are left with two problems. The first is the unpredictability of ASA decisions. A realistic portrayal of drumming a can is apparently more problematic than an unrealistic portrayal of riding on the roof of a moving van. The ASA’s application of its own prioritisation principles is also somewhat unpredictable, if this ad was thought to require formal investigation. The second is that according to some reports, we live in an age where parents are over-protecting children from risk, leaving them unable to make genuine risk assessments for themselves. Even the chairman of the Health and Safety Executive is quoted on the BBC website as saying “It does look like the term health and safety has been used incorrectly here. Obviously if a child is playing with a jagged edge on a tin container there is a risk of injury, but we would hope parents manage that risk.”

Some risks, like cutting your hand while twirling and drumming on an empty can, are so remote or their consequences are so minor, that the whole system of advertising regulation is brought into disrepute when it treats them as requiring censure in this way.

And remember, this action against Heinz was on the back of just nine complaints. A number so small that you could count them on two hands, provided you hadn’t accidentally severed more than one finger on your empty can of beans. In fact, none of the complaints reported any actual injuries, only a fear of potential injury.

Finally, the ASA also came up with some handy advice, suggesting a clear on-screen safety message, such as “Play safe: tape the can”. Which does rather beg the question “where will this end?” Will Christmas ads that show people outside need a super saying “Wrap-up warm: or you’ll catch your death”? Will automotive ads will need to say “Please drive carefully. And sit in the car, not on the roof”? Will food ads need to say “Choking hazard: Always chew every mouthful 30 times”? Or perhaps a generic warning for any ad featuring or aimed at children, “You could take your eye out with that”?