The TV advert which was seen on Sky, Watch, ITV, Quest and UK Gold featured scenes in rapid succession culminating in 304 alternating black and white ‘YES’ words appearing across a screen.

Nina Best, a specialist in advertising law at Browne Jacobson commented:

“Adverts must not include visual effects that are likely to affect adversely members of the audience with photo-sensitive epilepsy. Advertisers must remember that the rules are not only about the words or images included in their advertisement, but also the way they appear is subject to constraints. It is not only what you say that can hurt but the way you say it.”

Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.

Nina Best
0115 976 6529
nbest@brownejacobson.com

Specific Regulations, which prohibit unlicensed advertising or street trading, have now been finalised. The law is wide reaching and can catch, for instance, persons given branded clothing to wear, and pre-existing advertising in the defined areas. The law is also strict – officers have extensive powers to enforce it, and directors may find themselves personally liable for their company’s actions.

It is fair to say that the wide scope of the laws in place during the London Olympics may catch some businesses by surprise. It is therefore important to plan your marketing and trading activities early, so you can still seek advice and/or acquire permits.

Further information can also be viewed at Olympics – law and practice.

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

Contrary to the predicted deluge of brands to be thrust onto viewers’ screens, this first product placement in the ITV soap takes the rather mundane form of a Nationwide cash machine appearing in Dev Alahan’s corner shop. There will also be a branded swing-board outside the store.

Product placement undoubtedly offers a potentially lucrative income generation model, with Ofcom predicting that the industry could be worth up to £30m a year. Despite some who worry that product placement is essentially subliminal advertising, and may be a challenge to the traditions of British broadcasting, the safe guards such as a small letter ‘p’ shown on screen during the programme credits will be a clear warning to viewers.

At least the residents of Coronation Street can rest easy, knowing their money is no longer being held in a fictional bank.

Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.

Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

A person found guilty of selling tobacco from a vending machine will face prosecution, and if convicted in the Magistrates court could be ordered to pay a fine of up to £2,500.

The ban is intended to reduce smoking among young people. This will particularly affect 11-15 year olds, who apparently regularly use vending machines as their source of cigarettes.

There is clear public support for a ban on the sale of tobacco from vending machines. However, the tobacco industry argues that vending machines could be modified to require tokens or ID cards, rather than having an outright ban. Nevertheless, you may be in the 65% of people who are in favour of a ban? ( according to a YouGov survey commissioned by ASH).

Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.

Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

The ECJ ruled (amongst other points):

• a trade mark proprietor can prevent a competitor from using a keyword identical to their own trade mark to advertise goods or services identical to those covered by their trade mark where such use is liable to have an adverse effect on the functions of the trade mark: the ‘indicating origin’ function of a trade mark will be adversely affected if the advertising displayed as a result of the keyword does not enable an internet user to ascertain whether the goods or services advertised originate from the trade mark proprietor or a third party.
• the proprietor of a trade mark with a reputation is entitled to prevent a competitor from advertising on the basis of a keyword corresponding to that trade mark where the competitor takes unfair advantage of the distinctive character or reputation of the trade mark or where the advertising is detrimental to that distinctive character.

The first point is unsurprising – its what we’ve been seeing in the national court rulings. However, it will be interesting to see how broadly the second point is interpreted by the English courts.

Posted by Sara McNeill, who specialises in non-contentious intellectual property matters, including licensing, franchise, collaboration and development arrangements and IP audits and strategy; experienced in drafting and advising on commercial agreements.

Sara McNeill
0121 237 3930
smcneill@brownejacobson.com

Complainants challenged the ad on the basis that it implied alcohol could enhance personal qualities and talents, contribute to popularity, confidence and social and sexual success and make a social occasion successful. However, the ASA said that the Heineken advert was not in breach because the man’s skills and popularity are not linked with him drinking alcohol.

In this case, the ASA has clearly concluded that the fact the man was drinking Heineken was incidental to his popularity and skills and not due to the fact that he was drinking alcohol. This ruling shows how fine the line can be between a breach and what the ASA deems acceptable. I anticipate that Heineken’s marketing team has a good grasp of the advertising rules as the bottle of Heineken is out of shot for the majority of the ad, and it is this that subtly disconnects the skilful, popular man from the alcoholic beverage. Well done Heineken!

Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.

Nina Best
0115 976 6529
nbest@brownejacobson.com

The Christian community were not impressed, and 98 people complained that the ad was disrespectful to Christians, especially as it was run during the Easter period. The ASA today (7 Sep 2011) found that the ad breached rule 4.1 of the CAP Code as it caused harm and offence.

The ASA accepts that marketing communications may be distasteful without necessarily breaching the Code. However, they urge marketeers to consider public sensitivities before using potentially offensive material. Companies should not be deterred from being edgy and tongue in cheek with their marketing efforts, but they must make sure they take all external factors, including timing, into consideration before launching a new campaign. Otherwise, the risk of vexing a large proportion of your target audience is extremely high.

Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.

Nina Best
0115 976 6529
nbest@brownejacobson.com

The complaint came from Lib Dem MP Jo Swinson, a long standing campaigner against unrealistic images of women in advertising. Swinson is claiming the decision as a victory stating that “this ban sends a powerful message to advertisers – let’s get back to reality”, and rightly so. It is perfectly legitimate for advertisers to show their products in the best possible light, however they should not cross the line of becoming misleading.

The ASA has shown its hand in this case and arguably cast doubt on the products in question. Advertisers need to be careful to show the true effects of their products or risk consumers questioning whether they are as good as they first appear.

Dmitrije Sirovica
0115 976 6243
dsirovica@brownejacobson.com

The proposed changes in the report include ideas to make it easier to block adult content on mobile phones and the internet by being able to buy computers, devices or internet services with adult content already blocked. It also suggests a ban on raunchy billboard posters near schools and more control of advertising aimed at youngsters. Under the review more risqué music videos would also be moved to later time slots and be restricted to older teenagers.

This review has also coincided with the release of a new code of practice drawn up by the British Retail Consortium which provides guidelines and restrictions on inappropriate children’s clothing.

How far this will go to alleviate parents’ worries about the increasingly sexualised culture we live in, remains to be seen.

Laura Richards
0115 976 6249
lrichards@brownejacobson.com

The Advocate General has now provided an opinion in the case of Interflora v Marks & Spencer stating that a trade mark owner can forbid the use of a trade mark in such circumstances where the advertising link:

• is liable to lead some members of the public to believe that the competitor is a member of the trade mark owner’s commercial network; and/or
• displays or mentions the trade mark and the advertiser thereby attempts to benefit from its power of attraction, reputation or prestige

Surprisingly the Advocate General believes that the advertisement may confuse searchers in to believing that M&S is part of the Interflora network. If the court’s hypothetical searchers are so easily confused then adword purchasers will need to select their adverts very carefully.

Alex Kynoch
0115 976 6528
akynoch@brownejacobson.com

The reason? It seems that some customers were making money out of Tesco by specifically seeking out products which a competitor had on promotion. One consumer claimed to have made £600 from the promotion already.

Tescos said that fewer than one in 5,000 customers had been awarded vouchers over £20. However Asda took the opportunity make this statement:

“If you claim to be the cheapest, call me old-fashioned, but it helps to really be the cheapest.”
The moral of the story? Make sure you think carefully and get your terms and conditions right BEFORE you go to the market with a promotion!

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

The London Olympic Games and Paralympic Games Act 2006 (“Act”) provides for regulations to be created in relation to the control of advertising and trading to help prevent ambush marketing and preserve the exclusive association rights of the 2012 Games sponsors.

The consultation seeks views on the scope of the proposed restrictions to advertising and trading in open places, the areas (zones) to which the regulations will apply and the duration of the regulations. It is hoped that the restrictions and associated penalties will be clear and reasonable, enabling individuals and businesses to manage their activities appropriately and be confident that they are not in breach of the regulations.

Posted by Sara McNeill, who specialises in non-contentious intellectual property matters, including licensing, franchise, collaboration and development arrangements and IP audits and strategy; experienced in drafting and advising on commercial agreements.

Sara McNeill
0121 237 3930
smcneill@brownejacobson.com

The Defendant, Rockwool, manufactures insulation panels used in construction. They carried out an advertising campaign, comparing their product with that of their competitor, Kingspan, using fire tests to demonstrate the combustibility of the goods. Kingspan argued that the claims made about their product were false and misleading.

Kitchen J held that Rockwool infringed Kingspan’s trademarks under Article 5(1)(a) and (2) of the Trade Mark Directive and Article 9(1)(a) and (c) of the CTM Regulation, by taking unfair advantage of their trade mark and discrediting it, and that , Rockwool had not met the condition, under the Comparative Advertising Directive, of objectively comparing the products. Another claim for malicious falsehood was dismissed.

The decision should serve as a warning to businesses to take greater caution in ruthless advertising campaigns involving competitor’s products!

Posted by Declan Cushley, who specialises in intellectual property dispute resolution involving infringement and validity of patents, trade marks, designs and copyright, as well as reputation management and domain name disputes.

Declan Cushley
0121 237 3993
dcushley@brownejacobson.com

The company paid £100,000 for its Dolce Gusto coffee machine to be placed on ITV’s This Morning’s kitchen over the next 3 months. However the machine was only visible for seconds at a time, sitting idly behind Phil Vickery and would not have been noticed unless it was actively sought out.

This is a nervous start by advertisers, and we may have to wait for shows such as the X-Factor to test the waters and see how far the new rules will go. Nevertheless, although Nescafe’s Dolce Gusto went largely unnoticed this morning the press it has since received as the first to take advantage of the new rules make it worth while. Bet you spot it tomorrow!

Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.

Nina Best
0115 976 6529
nbest@brownejacobson.com

Product placement logo

Just before Christmas 2010 Ofcom confirmed that as of 28 February 2011, product placement will be permitted in UK TV programmes. Unlike our more relaxed US cousins, as part of the new rules a logo must appear for 3 seconds at the start, the end, and after any advertising breaks within programmes containing product placement.

Ofcom today revealed what that logo will look like. The monochrome double P will be used to signal to viewers that the programme they are about to see contains product placement.

The use of the logo is intended to combat “surreptitious” advertising. In practice this cautious approach may be an added bonus for advertisers who will get two bites at the cherry. As well as being able to place products within programmes, advertisers have the added benefit that broadcasters must tell the viewer that their product is there, drawing the viewer’s attention to what they may otherwise not have noticed at all.

Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.

Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

The review follows escalating fears that the Act is so burdensome it could affect UK economic growth, and that UK business chiefs could end up in court after inadvertently committing an offence with a potential maximum sentence of 10 years.

However the Government needs to be cautious. Watering down the Act now would ruin the reputation the UK has earned itself, as the least corrupt country in the world, by implementing the Act in the first place. The Government should concentrate on issuing coherent, useful guidance for companies and ensuring that authorities deal with potential breaches of the Act in a sensible and proportionate way.

Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.

Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

The new rules can be found in a revised section nine to the broadcast code and includes restrictions on the types of product that can be placed, the types of programmes in which products can be placed, and limits on the way in which products can be seen and referred to in programmes.

The industry is suggesting that real changes are unlikely to be seen on TV until 2012, but viewers should see an audience awareness campaign on channels intending to use product placement early in the new year.

Now that television receivers that allow users to record, pause and rewind our favourite programs are common place, expect to see our favourite programs infiltrated by our favourite brands. Time will tell whether this will be a ‘product invasion’ or whether advertisers manage to strike the right balance and ensure that the placement matches the content of where it is placed.

If you would like to find out more about these changes you can read our bulletin on product placement at www.brownejacobson.com

Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.

Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

Or rather, as those keen eyed readers will notice from the title, that a Santa clause does not exist, as part of the Advertising Codes. The ASA has reported that every year at the time of glad tidings, mince pies, carols, and general merriment it receives a sack full of complaints from angry parents. For example, last year it received 40 complaints against an Asda TV advert depicting parents buying and hiding presents. Why would they do this when Santa will be bringing them on Christmas Eve …… the children might ask?

The ASA did not investigate. Nevertheless, it accepts that the Codes place a particular emphasis on protecting children from harm and distress.

Accordingly this year, to save us from tears, the ASA had reminded advertisers to ‘tread carefully’ when putting their Christmas adverts together.

Posted by Fiona Carter, who specialises in commercial regulation, compliance advice and investigations; is head of Browne Jacobson’s advertising and marketing team and food and drink group.

Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

Heineken UK challenged whether the claims “NEW TASTE LOCK CAN” and “Scientifically proven to lock in great taste” were misleading as they could not be substantiated. However, Molson Coors Brewing Company (UK) Ltd (MCBC) answered the challenge by providing evidence regarding the technology that made the cans new and details of extensive tests conducted that showed the maximum iron content found in the new cans compared to the old cans had reduced, and was at or below the level at which trained in-house taste testers could identify a metallic taste.

MCBC understand the importance of ensuring that before any claims are made it is imperative that statistically significant evidence is gathered, just in case you are presented with a challenge. Much to Heineken’s dismay, MCBC will now get better press from this ad campaign than they would have done had the challenge not been made in the first place !

Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.

Nina Best
0115 976 6529
nbest@brownejacobson.com

It is not necessary for a publisher to have identified the matters on which comment is based in sufficient detail to enable a reader to judge for themselves whether the comment is well founded. Instead, an honest comment  ”must explicitly or implicitly indicate, at least in general terms, the facts on which it is based” so that “the reader can understand what the comment is about and the commentator can, if challenged, explain…”. However, a defendant is not permitted to get support from facts that were not referred to by the comment, or facts that the defendant did not know when he made his comment.

This clarification allies the defence more closely with the realities of publication on the internet, in editorials and in blogs, and makes a little progress towards the more robust reform position currently proposed in the Defamation Bill. The ruling will please publishers and proponents of free speech – but on the other hand, it might make the judicial process for persons defamed in unbalanced attacks more difficult.

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

The pricing practices examined in particular were:

1. drip pricing
2. time limited offers
3. “bait” prices
4. complex offers
5. reference pricing
6. volume offers and free offers

The report ranked drip pricing as having most potential to mislead, and volume/free offers as having the least potential to mislead. This does not mean that all drip pricing is banned and all volume offers are permitted – further factors are set out in the report, which will be considered before a decision to take enforcement action is made.

Businesses which continue to use such pricing models may be at risk of court action. We recommend that businesses take advice and review their pricing practices to check they are compliant with the guidance.

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

Mr Lansley believes ‘glitzy’ packets attracts young people to smoke, and has said ‘the evidence is clear that packaging helps recruit smokers so it makes sense to have less attractive packaging’. He wants to cut the ‘vast’ smoking related cost to the NHS and the economy, and instead use this money to ‘educate our children and treat cancer’.

Though the ban has been welcomed by doctors and anti-smoking bodies, the tobacco industry has already indicated it will totally reject the idea of plain packets. This is an unsurprising response from an industry already effectively stripped of its marketing arsenal, now facing a Government intending to ban companies from using their intellectual property rights.

Dmitrije Sirovica
0115 976 6243
dsirovica@brownejacobson.com

Consumers are increasingly looking for ways to ensure that they do not add to negative environmental impacts. Unilever clearly recognise that having an environmental plan will help the company increase its sales. Its claims that it will halve the environmental impact of its products over the next 10 years are bold. In order to meet its targets, Unilever say that some of its products will be reformulated, while others will go through complete packaging overhauls.

Our favourite regulator of advertising, the ASA, is alert to the power of the green badge of honour. It will be interesting to see whether Unilever are asked to substantiate its claims or whether the promises alone are enough to bring about the benefits of a good company greenwash.

Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.

Nina Best
0115 976 6529
nbest@brownejacobson.com

The ASA agreed with a viewer’s complaint that the ad does not make it clear whether the 37% was referring to women in general or just those who had used the cream.

In support of the claim, Nivea had carried out a survey on over 12,000 subscribers to its e-mail newsletter. The problem was that the survey sample was too general, as the ASA could not be certain that they were all users of the Nivea product. In addition, the questions asked were not specific to the eventual claim made in the ad but were instead general attitudes questions.

Companies should take heed; it is much easier to withstand challenge if you have a smaller sample of good quality, directly applicable evidence to substantiate your claim.

Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.

Nina Best
0115 976 6529
nbest@brownejacobson.com

The TV ad showed a woman scrubbing a toilet with bleach and then showed limescale under the toilet seat rim and a close up of germs on it.

The voiceover makes various claims, including that “Harpic Power Plus…is five times better than bleach at powering through limescale…”

Unilever were the complainant. It will come as no surprise that one of Unilever’s brands is Domestos: a domestic bleach product. Unilever has become a pro in using the ASA as an effective tool to challenge comparative advertisements. They clearly recognise that a well drafted complaint to the ASA, which highlights breaches of relevant legislation and codes of conduct, can be a more effective (and less costly) tool than engaging in potentially lengthy litigation.

Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.

Nina Best
0115 976 6529
nbest@brownejacobson.com

Federici were told not to run their advert, which depicted a heavily pregnant woman, dressed as a nun, holding a tub of ice cream ad, again. In response, Federici said that they would be unveiling a new advert, which would continue the theme, to coincide with the Pope’s visit to the UK.

Well, they did, and guess what; it has fallen foul of the advertising code of conduct yet again. This advert shows two men dressed as priests about to kiss, with the text ‘we believe in salivation’.

Call me suspicious, but something tells me that Federici did not fall foul of the code accidentally. It looks like the ASA and its adverse rulings are being exploited by the ice-cream maker’s marketing team to support the brand’s slightly risqué image.

Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.

Nina Best
0115 976 6529
nbest@brownejacobson.com

The ASA upheld both complaints. Ryanair’s evidence showed they sometimes offered cheaper flights than their nearest competitor, but did not show that they were cheaper for the whole of Summer 2010. Ryanair have been told not to repeat the ad in its current form.

On the one hand, this is an example of why certain advertisers feel able to ignore the threat of an adverse ASA ruling – because by the time this adjudication was made, ‘Summer 2010′ was long gone. On the other hand, will the reporting of rulings such as this, combined with protests such as ‘ihateryanair.org,’ undermine the credibility of Ryanair’s low-cost business model for Summer 2011?

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

This issue has clearly now been picked up by the ASA and CIPR. The ASA have clarified that “online public relations”, defined as “press releases, other public relations material and editorial content”, are not covered. The ASA will be concerned only with marketing communications, including advertising, sales promotion and direct marketing.

In our view, the boundaries of the above definition are currently insufficiently clear to prevent an influx of complaints once the new system gets underway. However CIPR will be giving further guidance, including examples of common types of activities considered as “public relations”– whether this will resolve the issue remains to be seen.

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

It follows an investigation in 2009 by the UK Information Commissioner’s Office after BT collaborated with targeting company Phorm to collect online browsing data that was later used to select ads for delivery to individual computers. The investigation concluded that no laws had been broken by BT or Phorm.

Whilst some marketers, advertisers and brand owners will see this latest development as another blow to their potential creativity others will regard it as an opportunity to gain greater customer respect and loyalty by being seen to be open and transparent about their advertising techniques.

Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.

Nina Best
0115 976 6529
nbest@brownejacobson.com

Federici said that their advert was a form of art and self-expression. They felt that advertising should be challenging and often iconoclastic. However the ASA said that the use of the image was likely to be seen as a distortion and mockery of the beliefs of Roman Catholics, and using it in a light hearted way to advertise ice cream was likely to cause serious offence.

In response, Federici have stated that they will be unveiling a new advert, which continues this theme, to coincide with the Pope’s visit to the UK.

This approach is similar to ambush marketing, and at the very least, contradicts the spirit of the ASA’s ruling. Is this another example of an adverse ASA ruling providing useful publicity for a brand?

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

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

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

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

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

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

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

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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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
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fcarter@brownejacobson.com

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

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
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fcarter@brownejacobson.com

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
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fcarter@brownejacobson.com

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
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fcarter@brownejacobson.com

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

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

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:

1. marketers must hold evidence to substantiate their claims
2. marketers should ensure that prices are clear and match the products illustrated
3. special care should be taken when products intended for adults may fall into the hands of children
4. 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
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fcarter@brownejacobson.com

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 :

1. the marketing of alcohol via sponsorship of events at which at least 10% of those in attendance would be under 18, and
2. 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

Under the Influence is the latest report from the British Medical Association (BMA) that seeks to highlight the damaging effect of alcohol marketing on young people. It says its’ aim is: 

“to identify effective ways of protecting young people from the influence of alcohol promotion and marketing, thereby redressing the excessively pro-alcohol social norms to which they are exposed”. 

It claims that the £800m the industry spends each year on marketing alcohol serves to normalise alcohol as an essential part of every day life, adding that it is therefore no surprise that young people are drawn to alcohol. 

This isn’t the first time that the BMA has beaten this drum. To date, the Government have stood firm and supported the self regulation of advertising of alcohol that is administered by the Advertising Standards Authority (ASA). In 2007, the Department of Health said: 

“We are also working closely with alcohol drinks industry and non-industry stakeholders on promoting more responsible drinking and preventing alcohol misuse.” 

Earlier this year they said: 

“it’s not always right to legislate,”. 

Do you trust in the ASA’s ability to effectively self regulate? Responsible advertising of alcohol encourages the audience to switch brands not drink harmfully. Industry partnerships with the Government are likely to be far more effective in the fight against the binge culture that we have in Britain with projects like the Campaign for Smarter Drinking. 

Agree or disagree?

Posted by Fiona Carter
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fcarter@brownejacobson.com

The proposal includes plans to secure the reduction in the fat and saturated fat content of sausages, meat pies and pastries, to make single packs of 30g or less more widely available and increase the promotion of/encouraging consumer interest in the smaller pack sizes. For all food products the FSA want companies to increase marketing efforts towards the promotion of reduced/low-fat options.

The FSA’s proposal is in line with the European Commissions Regulation on Nutrition and Health Claims which, contrary to popular belief, is there to encourage the use of nutrition and health claims on food not stifle such use. Healthy food is an area that is set to demand a huge amount of research and development in the forthcoming years, and Europe and the Government are likely to support this. However, once developed, the healthy food has to be signed off as actually “healthy” by the rigorous scientists at the European Food Standards Agency – this is currently where the plan for a healthy Europe may come unstuck!

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

Travelodge complains that it is “very near impossible” for customers to find rooms on premierinn.com for £29.

The complaint from Travelodge comes at a time when an increasing number of companies are turning to promotions as they continue to attempt to attract more customers in the recession. Many hotel chains have responded to big falls in occupancy by cutting room rates or offering value-for-money promotions. However, there has to be a marketing budget allocated to such promotions to make them viable.

The main winner when it comes to promotions is the customer. Travelodge agrees that the hotel industry must offer great value for the customer; however they say that this must be without the caveats.

Under advertising codes of conduct if companies are unable to supply demand for a promotional offer because of an unexpectedly high response or some other unanticipated factor outside their control, they should are expected to offer substitute products/services.

Is the customer going to be the loser in the end if the ASA uphold this complaint? Companies may be discouraged from running promotions through fear that an offer may go further than the marketing budget that it allocates.

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

In their defence, Walls say that the use of the term “Lincolnshire” sausages refers to a traditional recipe, rather than the place from where the meat is sourced. They say that they source as much meat as they can from the UK, and merely complement that with supplies from audited producers in Europe.

Walls sausages are marketed as a distinctly British brand. However, meat from abroad can be significantly cheaper to produce than meat from the UK, and legally, Walls are not required to label their products to indicate that some of its meat content comes from abroad. Indeed, so long as the product is actually manufactured in the UK, it can at present bear the wording “British Made.”

Do you think this is good enough or should manufacturers and retailers  be required to explain EXACTLY where the ingredients of products come from – or maybe it’s all a load of old Hogwash?

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com