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No anti-junk food laws in exchange for campaign funding

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?

Fiona Carter

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More jump on the ambush wagon

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?

Fiona Carter

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fcarter@brownejacobson.com

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The World Cup: a "fingers crossed" attitude towards litigation?

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?…

Fiona Carter

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fcarter@brownejacobson.com

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Marie Stopes to run first ever abortion advisory TV advert

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?

Fiona Carter

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fcarter@brownejacobson.com

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Politically Correct

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?

Fiona Carter

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fcarter@brownejacobson.com

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First blog censured by the PCC – will you keep reading?

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?

Fiona Carter

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

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Toryfail – why moderation might be a good idea

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.

Fiona Carter

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

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Is charitable competition possible?

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.

Fiona Carter

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

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The ASA extends its reach online

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:

  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?

Fiona Carter

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

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Alcohol advertising to be subjected to Government regulation?

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 :

  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.

Fiona Carter

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

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Under the Influence

Friday, December 11th, 2009

A total ban on alcohol advertising must be introduced by the Government to halt an epidemic of problem drinking say doctors again… 

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?

Fiona Carter

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

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So I will be able to eat all the pies?

Friday, December 4th, 2009

The Food Standards Agency has launched a consultation, aimed at reducing saturated fat in food products. It is suggesting that their proposal will also increase the availability of healthier options and smaller portion sizes in savoury snacks.

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!

Fiona Carter

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

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Travelodge makes formal complaint about Premier Inn's promotional campaign

Wednesday, November 25th, 2009

Travelodge has lodged a formal complaint with the Advertising Standards Authority (ASA) over the £29-a-room Christmas promotional campaign run by its rival Premier Inn.

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.

Fiona Carter

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

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Can you say (Cumberland) sausages?

Wednesday, November 11th, 2009

This week Walls have admitted to the Sunday Telegraph that at least half its meat is sourced from pig farms outside the UK. This other meat comes from Denmark, Holland and Germany. However, the labels on its “Lincolnshire ” and “Cumberland” sausages do not set out the foreign origin of the meat.

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?

Fiona Carter

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fcarter@brownejacobson.com

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Nutrition and Health Claims in TV and Radio Adverts

Monday, November 9th, 2009

Following the revision of the CAP code for non-broadcast advertising in January 2009, last week BCAP revised its television and radio advertising codes in order to comply with the 2006 EC Regulation, which sets out when nutrition and health claims are permitted in advertising. An example of a nutrition claim commonly made on food and drink products would be “low in fat”. An example of a health claim would be “‘helps maintain a healthy heart’”.

Examples of changes (for TV advertising) include that “food product claims that refer to a rate or amount of weight loss are not permitted” and “Advertisements must not suggest that it is necessary for the average person to augment the diet or, unless the claim is authorised by the European Commission, that dietary supplements can enhance normal good physical or mental condition.”

Breaches of the new BCAP Codes could result in complaints being made to the Advertising Standards Agency (ASA). The ASA has the power to recommend that adverts must not be broadcast again without amendment. This can result in the loss of considerable investment in marketing campaigns.

Do you think these changes will do anything to promote consumer confidence in nutrition and health claims made by advertisers?

Fiona Carter

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

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Actimel no longer 'scientifically proven'

Thursday, October 15th, 2009

On Wednesday, the ASA upheld a complaint against a claim made in an advert for the product Actimel – that it was ”scientifically proven to help support your kids’ defences”. The ASA has ordered that the advert be withdrawn.

Danone said they had referred to Actimel as being “scientifically proven” in their ads since November 2007, and that the basis for that claim was a significant body of published scientific evidence that showed that Actimel supported the natural defences of different age groups, including children. They argued that each individual study did not need to demonstrate multiple health benefits, as long as they pointed towards a positive effect for Actimel overall. Indeed, Clearcast had approved an earlier claim made in 2006 that stated “Every morning I like to give my kids Actimel to help support their bodies’ natural defences”. Clearcast’s nutritional consultant was satisfied that the evidence showed that Actimel could support the body’s defences in that particular age group.

The ASA said that the claim in the advert clearly related to healthy children of school age. The ASA said that Danone’s evidence either related to children of other ages, children already in ill health, or did not relate directly to children’s health, or the sample sizes were too small, or the results were not statistically significant. The ASA were concerned that the evidence did not show that all children would see a benefit from consuming Actimel

Who is the victim?
Is it the public who have been misled for (it seems) years – or is it the Brand Owner who is simply trying to sell a “healthy option”?

Fiona Carter

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0115 976 6224
fcarter@brownejacobson.com

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How do you stop an advertisement being banned?

Thursday, September 24th, 2009

On Wednesday the ASA upheld a complaint, made by the Asbestos Watchdog, about the accuracy of the statistics quoted in the HSE’s ‘Asbestos: The Hidden Killer’ advertising campaign.  The HSE have stated that they are disappointed with the ASA’s decision. They consider it to be only on a technicality and they intend to request a review by the Independent Reviewer of ASA Adjudications.

This case shows how a single complaint by a body with a vested interest could potentially result in an entire campaign being banned from publication, despite an advertiser believing it has sufficient evidence to prove the claim. Many complaints to the ASA are upheld, and overturning an ASA decision on appeal will not be easy.

To minimise the risk of a successful complaint being made, advertisers need to be able to produce significant evidence to substantiate their claims and also seek legal advice both prior to embarking on any advertising campaign, and after receiving any complaint.

Considering the money (in this case public funds) which gets invested in advertising campaigns, is it too easy to get an advert banned?

Fiona Carter

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

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