Brands forging relationships with TV shows is nothing new.  It makes sense for brands that align well with a particular genre, or talent to enter into these tie-up agreements.  Some simply allow access to branding and celebs, while more complex deals involve TV sponsorship or product placement in the form of brand integrations with the show. All are permitted on TV in the UK – with various guardrails. 

The major commercial broadcast channels have become adept at navigating the product placement and sponsorship rules. And provided the rules are followed, this is not advertising. The broadcaster is responsible for compliance, and Ofcom scrutinises the arrangements. These TV-brand tie-up deals can offer great returns for brands, and Ofcom has not been heavy-handed in its enforcement of the rules. But have the brands and channels doing these deals forgotten that there are other regulators keeping an eye on related advertising...?

In this recent example, Channel 4 did a deal with Scottish Power. This doesn't seem to be a wider programme sponsorship or product placement deal, but Scottish Power were given the right to create an advert referring to the show "George Clarke's Amazing Green Spaces" and featuring George Clarke.

As this was an advert, rather than programme sponsorship or product placement, it was not Ofcom, but the Advertising Standards Authority, that scrutinised this case.  It's a great reminder that mixing ads with editorial content has to be done very carefully. You can see the advert here: https://youtu.be/eWU_L0QakmE

The BCAP Code states that broadcast ads must be obviously distinguishable from editorial content, to prevent the audience being confused between the two, especially if they use a situation, performance or style reminiscent of editorial content, and the audience should quickly recognise the message being conveyed as an ad. In addition, the use of a title, logo, set or music associated with a programme needs special care, and television ads must not refer to themselves in a way that might lead viewers to believe they are watching a programme.

The Scottish Power ad, which ran on Channel 4 last year, featured the text: "GEORGE CLARKE'S amazing GREEN spaces". George Clarke then featured and talked about amazing spaces he'd seen, finishing with the words "it's all about the green solutions provided by Scottish Power. So why not make your amazing space even more amazing by turning it a little greener." The first 12 seconds of the ad contained the text "#ad" in the top right corner. From 26 seconds to 35 seconds into the advert, there was superimposed text at the bottom referring to Scottish Power products and the end of the ad featured the Scottish Power logo which had the text "Scottish Power".

Three complainants challenged if the ad was obviously distinguishable from the "George Clarke's Amazing Spaces" television programme.

Unsurprisingly, Scottish Power argued that their use of the word "ad" and frequent references to Scottish Power products throughout made it clear that it was an ad. It also said it was much shorter than a programme segment and did not feature the same sort of activities as the TV programme did. It was also positioned after the (different) programme sponsor's bumper ad. Clearcast supported them, saying that the duration of the text "ad" on screen, the superimposed text outlining Scottish Power's products and the Scottish Power branding was enough to distinguish the content as an ad.

The ASA disagreed and upheld the complaints.  It assessed it in the context that it was aired in ad breaks around "George Clarke's Amazing Spaces" television programme.

The ad started with the stylised headline text "GEORGE CLARKE'S amazing GREEN spaces", which was in the same font and style as the headline text presented at the beginning of the programme. The text was also set against a background of greenery, which was the same way it was presented in the show. Furthermore, immediately after that text was shown, the ad featured George Clarke discussing "amazing spaces" he had seen in the UK.

The ASA acknowledged that the text "ad" featured in the top right corner for the first 12 seconds. However, that was insufficient to mitigate the other elements in the ad, which were reminiscent of "George Clarke's Amazing Spaces" television programme. The text "ad" was also relatively small in the top right-hand corner. It was also in the same colour and a similar font to the headline text presented in the middle of the screen and so was likely to be overlooked. As such, the ASA considered viewers were likely to believe, at least initially, that they were watching a programme.

The ASA also said that the Scottish Power references and the mention of products appeared after a significant portion of the ad had already aired. It accepted that there was sponsorship content separating the ad from programme content, which related to a different company. However, the ad was in any case required to be quickly recognisable as such and be distinguished from editorial content. Due to the similarity between the beginning of the ad and the television programme, the ASA considered the audience were unlikely to quickly recognise the message as an ad distinguishable from editorial content and were instead likely to believe they were watching a programme. Consequently, the ASA concluded that the ad breached BCAP Code rules 2.1, 2.3, and 2.4.1 (Recognition of advertising).

Our take

It is also worth noting that as well as the CAP and BCAP Code requirements, advertising must be recognisable as such under the Consumer Protection from Unfair Trading Regulations 2008, soon to be replaced by the Digital Markets, Competition and Consumers Act 2024.  In practice, the ASA is the frontline regulator for advertising that blurs the line with editorial and/or is not clearly advertising (other examples include disclosure of influencer advertising).  However, in theory, the CMA or trading standards could take an interest and use their new beefed up powers to levy fines or ask the courts to.  It is therefore important that you take the rules on the recognition of advertising seriously.

The ruling also illustrates that the ASA can and does disagree with Clearcast, and although your ad might have been pre-cleared, it does not guarantee that complaints will not be upheld.

Finally, while Ofcom may have too much on its hands dealing with implementing the Online Safety regime to be giving too much attention to commercial references in TV programmes (and as a general rule, the major commercial channels are navigating the relevant rules under the Ofcom Broadcasting Code deftly), this is a useful reminder that TV-brand tie-ups need to be thought about from an ASA/BCAP code perspective too.

If you're interested in learning more about branded content and product placement etc, please sign up for our webinar on 22 April: A&M Event Series: Branded Content – Navigating the regulatory regime and other pitfalls