Archive for the ‘Advertising & Marketing’ Category
Wednesday, September 1st, 2010
The Advertising Standards Authority (ASA) today announced that it will be extending its remit to cover marketing communications which appear on businesses’ own websites. Previously, the ASA’s online coverage only extended to paid-for adverts. The change will come into force on 1 March 2011.
This is a significant change, as it brings a large amount of new material into the ASA’s territory. The ASA will now have the power to, for instance, examine claims made about your product on your website, and pronounce that they are misleading, or socially irresponsible. The ASA would then require that such claims not be made again. Businesses which operate primarily online through their own website could find themselves subject to ASA investigation for the first time.
An adverse ASA adjudication can produce a great deal of negative publicity, and in addition the ASA have decided that they may in future place their own advertisements online, to be found by search engines, to name and shame advertisers who refuse to comply with their rulings. For this reason your competitors may look to instigate a complaint if they feel there is misleading information on your website. Businesses should take the opportunity now to submit their website’s content for review, to avoid the risk of a complaint.
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
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Friday, August 27th, 2010
On Friday it was reported that the US FTC has ruled against a firm whose employees, posing as ordinary consumers, posted favourable reviews of its own clients’ iPhone applications. This type of marketing activity is known as “astroturfing.” The firm must now remove all the reviews.
In the UK, astroturfing is illegal as it is “blacklisted” by the Consumer Protection from Unfair Trading Regulations 2008. If degrading reviews of competitors’ products are also posted, this could breach the Comparative Advertising Directive, and constitute malicious falsehood, for which damages could be claimed.
The precise extent of astroturfing online is unknown – though there are certain ways to detect if a review is genuine or fake. But in a world where the casual consumer relies heavily on reviews and averaged star-ratings (be it on Amazon, TripAdvisor or iTunes), astroturfing can clearly impact on sales if left unchecked.
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
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Tags: advertising, astroturfing, Brands, Consumer protection, marketing
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Friday, August 27th, 2010
The new CAP and BCAP Codes come into effect on 1 September 2010.
Changes include:
- an over-arching “social responsibility” rule for broadcast adverts
- clearer guidance for both broadcast and non-broadcast on what the ASA will consider are unfairly exaggerated “green” claims
- rules preventing marketers from collecting data from children under 12 and from exploiting the trust that young persons place in parents, teachers or other persons
- clarification on the acceptable use of the word ‘free’
- a requirement that prize promotions be clear about which prizes are available to win and those that are guaranteed to be won
- new sector-specific rules for charities, food and drink, adult products, debt advisers and lotteries
Advertisers should review their current marketing projects against the updated Codes, so that they do not get caught out by the changes – and so they do not miss out on any new opportunities now available.
Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.
Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com
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Tags: advertising, ASA, marketing, new ASA rules
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Friday, August 13th, 2010
In the motor industry it is important to differentiate your product, and currently concerns about quality are running high. So Kia’s ’7 year warranty’ advertising campaign is timely – however, the ASA have this week ruled that it should not be repeated as it is misleading.
Kia had failed to sufficiently highlight that the warranty was subject to a 100,000 mile limit, and that not all items would be covered for the full length of the warranty – even though the 100,000 mile limit was referred to in the final frames of the ad, and was considerably in excess of the UK’s average annual mileage (around 10,000 miles).
Although the ruling is not fatal for Kia’s ’7 year warranty’ strapline, Kia will have to alter its adverts. Advertisers of course want to have a clear message, but this ruling shows how difficult this can be if there are significant qualifications to an offer, which need bringing to the consumer’s attention. If an offer is qualified – that information must be as clear as the strapline itself.
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tags: advertising, Advertising Campaign, ASA, Kia
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Thursday, July 22nd, 2010
In a novel promotion, Dr Pepper recently launched a Facebook app which gave consumers the chance to win £1,000 – if they allowed Dr Pepper to “hi-jack” their status updates. Dr Pepper, in line with their “what’s the worst that could happen” strapline, would use the app to post amusing embarrassing statements, which would appear as if they had been made by the entrants.
However the promotion went wrong when a 14-year-old girl’s status was updated with a reference to a hardcore pornography film, causing an outrage. Now Coca-Cola are reportedly considering moving their account from the advertising agency responsible for the promotion.
This shows the importance, when dealing with a novel promotion mechanic, of ensuring the promotion is carefully reviewed before it is run – not just for legal compliance, but also to establish what’s the worst that could happen?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tags: advertising, Brands, Food & drink, Social Media
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Monday, July 19th, 2010
We recently commented on government plans to persuade food manufacturers to fund its Change4Life campaign in return for less red tape.
Now there are signs that the food industry is going to get even more respite. The Food Standards Agency (FSA) is going to be part of the government’s review of “arms length” agencies that is due to take place this autumn.
The FSA has been subject to much criticism from the food industry in recent years – particularly for it’s lobbying for mandatory traffic light labelling and restrictions on TV ads for foods high in salt, sugar and fat.
Many of those in the industry are of the view that the food industry is responsible enough to look after itself and consumers are big enough to make their own choices about what is and what is not good for them. But is the fiscal deficit really a good reason to abandon the body which when it comes to food is charged with protecting public health and public safety?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tags: advertising, Food Advertisng, FSA
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Friday, July 16th, 2010
MPs, including David Cameron, roundly condemned tributes left on a Facebook group page dedicated to the gunman Raoul Moat and asked for the group, which also criticises the police, to be taken down. Whilst the offending page has now been taken down by its creator, Facebook themselves declined to do so on the grounds it encouraged public debate. They do have a system in place to address complaints about specific offensive material.
The E-Commerce Directive creates certain protections from liability for illegal material that appears on websites, although these protections have certain exemptions. This includes where the website is put on notice of unlawful material, at which point the ‘host’ must act expeditiously to remove it.
It is arguable whether Facebook’s approach brings it strictly within the protection offered by the Directive. But is it more important for Facebook to be seen to be promoting freedom of speech, even when it could be distasteful?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tags: Brands, E-Commerce, Facebook, Freedom of Speach
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Friday, July 9th, 2010
On Monday, the coalition government asked its marketing departments to plan for spending cuts of up to 40% to their advertising budgets.
Yesterday, the health secretary, Andrew Lansley gave an insight into how the government sees that businesses can help keep important marketing campaigns alive.
Lansley explained that beer companies, confectionary firms and crisp-makers will be asked to fund the government’s Change4Life campaign; an advertising campaign that aims to persuade people to switch to a healthier lifestyle. In return, Lansley has promised that these companies will not face new legislation that was to outlaw excessively fatty, sugary and salty food.
Whilst this is an innovative way of keeping an important government campaign alive, the public don t always realise that the majority of restrictions on food are imposed by mandatory implementation of European Regulations.
Is the government indulging in soft sell – or is this a promise Lansley can keep?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tuesday, July 6th, 2010
Mr Paul Barrett has been sentenced to a £3,000 fine, plus ordered to do 250 hours of community service, for committing the offence of shill bidding, after becoming the first person to be convicted of the practice on eBay earlier this year. This occurs when a seller bids on their own item, under another account name (or ‘sock puppet’) in order to jack up the price. Shill bidding is reportedly a widespread problem on eBay.
Mr Barrett had faced a maximum fine of up to £50,000, or jail time. He pleaded guilty after an investigation by North Yorkshire Trading Standards. He stated that he was not aware he was committing a crime.
Though the prosecution is to be commended, the size of the penalty, combined with the admission by the authorities that shill bidding is difficult to prosecute, means that without more action being taken, this conviction alone is unlikely to deter future shill bidders.
So do you think that chasing internet crime is a good use of Trading Standards meagre resources – or should they be concentrating on the real risks to consumers like sale of dangerous toys or flammable furnishing?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Friday, June 18th, 2010
Ambush marketing is a ubiquitous feature of any major sporting event, and it’s certainly got FIFA cross at the 2010 World Cup, after orange mini-dress-sporting football fans were ejected from a World Cup match.
The women are accused of contravening the Merchandise Marks Act by abusing a trade mark. However, the difficulty in this case is that no mark of the company is visible on the dresses and it is therefore hard to see exactly what trade mark has been used.
The case demonstrates that organisations such as FIFA take ambush marketing extremely seriously and will crack down hard where they see examples of it. However it also illustrates that, no matter how draconian the legislation or the enforcement of it, ambush marketers will always be one step ahead.
One thing is certain: during the 2012 London Olympics, ambush marketers will find new ways to advertise their brand without paying hefty sponsorship fees. So, let the games begin!
Posted by Nick McDonald
0115 976 6198
nmcdonald@brownejacobson.com
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Tags: ambush marketing, Brands, Intellectual Property, world cup
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Saturday, June 12th, 2010
Last week we posted that Mars and The FA were considering legal action against Nestlé .
This week a study by Nielsen has revealed that Nestle are not the only ones taking advantage of “ambush marketing” during the lead up to the World Cup. The likes of Nike and Carlsberg appear to got the upper hand over their bitter rivals but its not all bad news. Nielsen also found that FIFA partner Coca-Cola was found to have had five times the level of mentions around the World Cup than Pepsi did.
With the raft of brands that are currently and will continue to engage in ambush marketing, is it time for sponsors to start taking advantage of their alignment to the World Cup by being more creative, since “owning” the tournament is clearly not enough?
Would money be better spent on savvy marketing strategies rather than on potentially fruitless attempts to try and go after arguably more creative (ambush) marketeers?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Monday, June 7th, 2010
Mars, the FA’s official sponsor, is considering taking legal action against Nestlé’s latest advertising campaign for Kit Kat for “passing themselves off” as being associated with the England football team. This is particularly interesting since Mars ran a very similar campaign 4 years ago.
With major sporting events, “ambush marketing” can be rife with advertisers other than official sponsors keen to piggyback on the popularity of the event without expressly associating themselves with it.
Although sporting associations often publish guidelines as to what references they will permit, which prohibitions are actually enforceable is a question of law. There is obviously a line which must not be crossed. However Nestle say they have taken advice, and feel that the campaign is permissible.
If the law doesn’t protect the rights which official sponsors have paid for, whats the point in paying ? – or maybe we are all “fair game” when it comes to making money for football?…
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Monday, May 24th, 2010
At 10.10pm on Channel 4 this Monday, the UK will see its first ever TV advert aimed at providing women with advice about abortion.
Abortion has been legal in the UK for more than 40 years, but advertising rules still restrict commercial providers from advertising their services. Though clearly the advert will be highly controversial, Marie Stopes say they have taken legal advice and have been given permission to air the advert, as they are a “non-commercial organisation.” Such organisations, including the Government, are permitted to advertise “pregnancy advisory services.”
Similar, the ASA have said that non-commercial providers of post-conception advice services have long been permitted to run such advertisements. Any advert that is broadcast has to comply with all the relevant rules in their Advertising Code. However, the ASA cannot act on objections that viewers might have about the service being advertised at all – they can only act on complaints, after broadcast, that the advert has breached its codes, for instance on its actual content, or inappropriate scheduling.
Nevertheless, the Society for the Protection of Unborn Children is considering making a challenge to the legality of the advertisement. As the ASA have set out the limits of their involvement, it will be interesting to see what other route SPUC try to pursue to prevent such advertisements – potentially arguments about human rights, including the right to life and the right to free speech, may be involved.
From a legal perspective, this shows the importance of seeking advice before embarking on an advertising campaign, because Marie Stopes are now able to state that they have taken such advice ahead of any controversy which might be brewing. It shows the limits of the ASA’s remit, even in highly controversial cases – but also that these limits do not prevent offended groups from seeking to take other forms of legal action.
advertisement will ask women “are you late?”, and will direct those facing an unplanned pregnancy to Marie Stopes’ helpline. It is anticipated that the advertisement will cause uproar amongst pro-life campaigners.
This may be Legal Honest and Truthful – but is it Decent?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Monday, April 26th, 2010
As some politicians are “firing up their Quattros” for one of the most finely balanced of recent election campaigns every stray vote will count.
We are all likely to find ourselves receiving more and more promotional material. So much so that the Advertising Standards Authority (ASA) has felt it necessary to remind voters that although it regulates nearly all forms of advertising – it does not regulate election advertising.
Adverts that are designed to persuade voters in a local, national or international election referendum are not covered by the Advertising Code.
Does this represent a true example of protecting our human rights to free speech or does it give politicians a right to free unregulated publicity to say whatever they want – at whatever price to win votes and power?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Monday, April 12th, 2010
Two weeks ago, we reported on the uncensored reposting of live tweets on the Conservative’s “Cash Gordon” website. Now it seems that Twitter posts have put a Labour candidate into hot water.
Amongst other controversial posts, Stuart MacLennan reportedly described the elderly as “coffin dodgers”. He has now been dropped as the Labour nomination for the seat in Moray.
One interesting point is that the Labour Party have said that Mr MacLennan’s tweets were in fact posted a year ago, when Mr MacLennan was still a student. Nevertheless they are still available to be found and reported, and can still be used against him. As a side note, from a legal perspective, material posted online is “published” each time it is downloaded to view – not just when it is first posted. This means that potentially defamatory material (including material which has been “cached”) can be unearthed years after it is posted, and the maker of the statement can be sued. This rule is however currently under review, and may change soon.
Do you think this incident will make students more careful about what they post online, in case it is used against them in the future?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Wednesday, March 31st, 2010
On Tuesday it was reported that the Press Complaints Commission had made its first ever adjudication against a blog. The blog in question was Rod Liddle’s piece which stated that “the overwhelming majority of street crime, knife crime, gun crime, robbery and crimes of sexual violence in London is carried out by young men from the African-Caribbean community.” A complaint was made about this particular comment to the PCC.
The Spectator was unable to provide evidence to substantiate this factual statement, and so the PCC upheld the complaint.
What was interesting about the decision was that the Spectator argued that blogging is a conversational medium, often provocative, in which readers were able to disagree with the writer by responding on the same page. The Commission recognised this argument, but stated that a publisher still had to be able to substantiate the factual statements it published, and could not rely merely on publication of critical reaction to the piece by members of the public.
Even online, the PCC requires the orthodox press to check their facts before publishing. But we live in a world of social media, internet rumours and the 24-hour news cycle. Is regulation a “gold standard” which ensures that consumers will continue to come to orthodox publishers for their news and comment?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Friday, March 26th, 2010
This week the Conservative Party launched the cash-gordon.com website, aimed at highlighting the Labour Party’s funding links to Charlie Whelan’s Unite union.
Unfortunately, basic technical errors and the inclusion of a live Twitter feed, led to the site being bombarded with abusive messages and colourful language.
Publishers, including webhosts and hosts of forum boards, can be held liable for the statements they publish, including liability in defamation.
In practice, once webhosts are notified by an aggrieved party that they are, unbeknownst to them, hosting alleged defamatory content, the content is removed.
However, for a high profile website with a live feed such as this one, it would be all too easy to have material widely disseminated before the publisher is even aware of it. By blindly republishing tweets, the Conservative Party has left itself open to such complaints.
Another new media tactic used by the website encourages site users to bombard Charlie Whelan with tweets. This could constitute harassment, for which the Conservative Party could potentially end up liable.
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Friday, March 19th, 2010
This week saw the announcement of several changes to the Committee of Advertising Practice (CAP) codes for broadcast and non-broadcast media after a lengthy consultation with industry bodies, Government and advertising agencies.
One of the changes is proving rather controversial. This is the new Code that allows the charity sector to air comparative advertisements on television and radio that compare one charity with another.
Under the Code, charities will be able to compare the work they do with other charities as well compare the way donations are spent.
The change comes at a time when donations are in a major decline as consumers continue to cut back following the recession.
The Governments view is that the charities sector should not been be seen as a “special category” and should be able to launch comparative advertisements as long as they do not break the rules on comparative advertising.
The change brings charities evermore into the commercial arena as they fight to get consumers’ pounds from their pockets. It will be interesting to see whether charities pay careful regard to the Code and do not for example denigrate their competitors. Or, whether there will be an influx of complaints made that comparisons are being made that are misleading consumers.
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Thursday, March 11th, 2010
The Advertising Standards Authority can require that adverts deemed to be misleading, unfair or offensive, are not to be repeated. But with the expansion of digital media, a noticeable gap in the ASA’s jurisdiction has emerged – the ASA only adjudicates on complaints relating to paid-for advertising.
Now this gap is to be plugged. The Advertising Association has recommended that the ASA’s remit be extended to cover marketing communications on companies’ own websites. It means that website owners will now need to review their own websites’ content to ensure that they can prove that they comply with the CAP codes.
Key provisions from the Code include that:
- marketers must hold evidence to substantiate their claims
- marketers should ensure that prices are clear and match the products illustrated
- special care should be taken when products intended for adults may fall into the hands of children
- claims comparing your products to your competitor’s products are subject to strict conditions.
If the recommendation is adopted, these changes could come into effect from September 2010.
With advertising in digital media becoming increasingly dominant in the marketplace, this was an obvious decision to make. Our immediate thoughts are: will businesses seek to use this to their advantage by complaining about their competitor’s websites? And what implications will this have on the use of user-generated content in marketing?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tuesday, January 12th, 2010
On 11th December, we reported that the BMA were seeking a total ban on alcohol advertising. But, we noted that to date, the Government had stood firm and supported the self regulation of alcohol advertising by the Advertising Standards Authority (ASA).
Well, now the Parliamentary cross-party Health Committee has called for the introduction of minimum pricing per unit of alcohol, together with tighter regulation on the marketing of alcoholic drinks.
Of particular concern are :
- the marketing of alcohol via sponsorship of events at which at least 10% of those in attendance would be under 18, and
- marketing of alcohol via online campaigns, including viral and social network marketing.
The conclusion is that these avenues are poorly regulated by the existing scheme of supervision. Proposals include a suggestion that an independent body be set up to regulate alcohol advertising. This would be a significant departure from the existing scheme of self-regulation.
Any new regulator would no doubt be looking immediately to claim a high profile “scalp.” If these proposals do go forwards, it will become more important than ever for drinks companies to ensure that they have an audit trail, to show that their product marketing is responsible and in accordance with guidelines.
Still – if by April we have a Conservative government (who would be looking to cut public spending, and boost the economy), in our opinion any “nanny state” plans such as these may, in the medium term, be substantially amended, if not shelved altogether.
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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