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Newsnotes: Target practices - tracking of consumer behaviour online to be overseen by the ASA

Fri, 25 Jan 2013 12:39:00 Z

Just when you thought it was safe to reach for Newsnotes¹ without having to swallow any further cookie-related stories², CAP has quietly unscrewed the lid of the cookie jar once more...

Code cracker

CAP has smuggled its biscuit-related material in by the back door, adding a new Appendix to its Code on the subject of “Online Behavioural Advertising” (OBA). To be enforced by the ASA from 4^th February 2013, the new rules are aimed particularly at ad networks and other third parties who use OBA to serve ads on websites with whom they partner. They will have to give web users prominent notice that OBA is being used, and the opportunity to opt out of its use.

OBA my dead body

Ofcom research in March 2012 found that nearly half of all internet users were not comfortable with OBA; but other research has indicated a greater willingness to receive targeted advertising once OBA is properly explained. CAP’s aim is to reassure the “uncomfortable” web users, and thereby allow “responsible advertising [to] flourish”. This is part of a pan-European initiative to use a single icon and website through which users can understand OBA (and manage their opting in and out)³.

Too much waffle?

The reason that baked goods come into all this is that most OBA providers use cookies in order to target web users with the ads that relate to their online behaviour. So the new Code Appendix is effectively a new layer of cookie regulation.

To be fair, CAP has made clear that the new rules are not designed to provide compliance with privacy and data protection regulations, which are separately enforced by the Information Commissioner’s Office. But there must be some danger of confusion, particularly as the CAP regime offers an “opt out” from OBA, whereas the privacy rules require an “opt in” to cookies.

¹ The Lewis Silkin newsletter for clients and contacts on recent developments in marketing law: this item was first published in issue 53, January 2013.

² And puns...

³ See www.youronlinechoices.eu and www.edaa.eu.

To subscribe to our Advertising and Marketing newsnotes, please email info@lewissilkin.com .

Newsnotes: Offers spurned - new rules for discount offers on food and drink

Fri, 25 Jan 2013 12:14:00 Z

November saw the serving up of two portions of new regulation for food and drink retailers, as potential curbs on discount offers were announced.

Bye bye multi-buy?

The Government is consulting on a variety of restrictions on the retail sale of alcoholic drinks, aimed at reducing alcohol-related crime and disorder. Two particularly sobering proposals are the introduction of a minimum 45 pence per unit price for all drinks, and a complete ban on multi-buy promotions. Three-for-two and BOGOF offers would thus be binned, but discounts on individual bottles would still be fino.

Bargain hunt

Meanwhile, the OFT has enhanced the flavour of the well-established BIS Pricing Practices guide by introducing some spicy new Principles aimed at ensuring that “shoppers [can] trust that special offers and promotions really are bargains.” The Principles have been developed with and adopted by eight leading supermarket chains¹, but the OFT has indicated that it hopes they will be put on the shopping list across all sectors.

The OFT Principles frown upon practices that artificially set high reference prices against which subsequent discounts can be made, particularly if this is done repeatedly (so called “yo-yo pricing”). It also suggests a rule of thumb that promotional stickers/signage should always be removed before the discount period has outstripped the time for which the higher reference price applied.

Pack it in

“Best/better value” claims on packaging must also be objectively accurate under the Principles, i.e. there should be no cheaper way of buying the same amount of the identical goods in the store. This will obviously also have implications for the brand-owners manufacturing/packaging the goods – potentially retailers will be less willing to take such pre-marked packs.

Currying favour

To make the Principles more appetizing, the OFT points out that adopting them will mean you are more likely to be CPRs-compliant, and thus less likely to be subject to OFT enforcement proceedings.

¹ Aldi, Co-Op, Lidl, Marks & Spencer, Morrisons, Sainsbury’s, Tesco and Waitrose

This article was first published in our Advertising and Marketing newsnotes issue 53, January 2013. To subscribe, please email info@lewissilkin.com.

EU Commission announces major shake-up of data protection rules

Mon, 30 Jan 2012 15:39:00 Z

The European Commission has published proposals this week for a comprehensive overhaul of the EU 1995 Data Protection Directive. If adopted by the European Parliament, these proposals will cut red-tape and streamline data protection rules across Europe but will also impose some significant new obligations and liabilities upon organisations that process personal data.

The proposed reform has been introduced in response to criticisms that the current data protection framework has failed to respond to technological developments and the increasingly global nature of data processing leading to widespread mistrust among consumers especially in relation to how their personal data is used online.

The proposed changes are intended to increase consumer confidence in data protection, whilst reducing the administrative burden on business through a single harmonised set of rules across Europe.

The key changes proposed include:

scrapping the current legal obligation to notify data processing which is estimated to cost businesses €130 million per year
reducing bureaucracy by requiring companies to report to a single national data protection authority in the EU member state in which they have their main establishment to replace the existing system of multi-jurisdictional reporting obligations
creating a level playing field by applying EU data protection rules to companies outside the EU who provide goods and services or otherwise process personal data within Europe
a mandatory obligation to appoint a data protection officer for organisations with more than 250 employees or those that systematically monitor citizens
a mandatory obligation to report data security breaches promptly and, where feasible, within 24 hours
empowering EU citizens with new rights of “data portability” to transfer personal data from one service provider to another and a “right to be forgotten” to require service providers to delete all personal data
introducing the principle of “privacy by default” meaning the default settings for any online service should be those which provide the greatest privacy for consumers and requiring mechanisms for obtaining consent to process personal data to be based on explicit and informed prior consent
substantially increasing the powers of national regulators to levy fines of up to €1 million or 2% of an organisation’s global annual turnover

The Commission believes the proposed harmonisation of data protection law will result in cost savings of around €2.3 billion per year and foster a single digital market to support economic growth and job creation but the new changes will also create some new challenges for online service providers.

There are no guarantees that the current proposals will become law. Before the proposals can come into effect they will need to be approved by the EU member states and ratified by the European Parliament. This process is likely to take two years or more, during which time the proposals could be watered down or rejected.

Find further details of the Proposals on the European Commission's website here.

Beverage report

Tue, 20 Dec 2011 17:19:00 Z

Alcohol marketing is a rum old business, rendered all the more whisky by the tricky judgement calls that must be made.

Campari and contrast

The ASA itself is aware of this, recently issuing a press release about two drink related adjudications with the witty title “Under the influence (of the ASA)” 1.

The first related to a fantastical ad for Heineken featuring a charming man’s exuberant entrance to a fun-fuelled party. It was found not to be in breach of ad rules because the success and popularity of the main character was not dependent on the consumption of alcohol. By contrast (apparently), an ad for Celldrinks featuring a freerunner not spilling his drink was found to make unacceptable links between alcohol and daring feats. Quite a fino distinction really....

Trouble brewing

Marriage: enough to turn anyone to drink? Picture the scene, an elderly woman holding a pack of PG Tips declaring “I buy this tea for my husband. He likes tea” and then holding a pack of Aldi tea bags saying “He also likes this one”. So far, so dull and domestic. It was her next line that caused a stir: “I don’t like tea. I like gin”. Nevertheless, the ASA didn’t see this ad as one too many. Because the woman did not appear drunk nor glamorised alcohol, the ad was just a humorous depiction of a person’s preferred tipple. Anyone for a “G and Tea”?

Last Orders in Scotland

North of the border, 1 October 2011 saw the pint of no return for BOGOF offers and 3-for-2s in off-licences, as a new Alcohol Act was introduced: the Scottish Parliament is not taking halfmeasures. In response, CAP and BCAP have issued guidance to meet concerns that consumers could be dispirited by ads elsewhere in the UK implying that multi-buy bargain booze offers are also available in Scotland.

1 We think the ASA should leave the puns to Newsnotes...

Whats their beef

Tue, 20 Dec 2011 16:44:00 Z

Procedural changes are afoot if you want to complain to the ASA about your competitor’s ads. But first, an example of old-style wrangling...

Meaty dispute

The ASA recently had to adjudicate in a tasty spat between competing gravy granule producers. Bisto-owning Premier Foods disputed claims by Unilever, purveyor of Knorr granules, that its product had “unbeatable taste vs. Bisto”. The ASA concluded that Unilever didn’t have the necessary “Knorr how” when it came to comparative advertising, as their test results “did not show that Knorr was unbeatable for smell” 1, and insufficient information was given for consumers to verify the comparisons made.

The flavour of things to come

Bisto ah not alone: according to the ASA, competitor kerfuffles are commonplace, accounting for 18.5% of formally investigated complaints in 2009. But with the gravy-train of ASA complaints pouring in – spiced up by the extension of the ASA’s digital remit earlier in 2011 – the ASA is hoping some procedural changes can limit the flow of competitor clashes to more of a trickle.

From 1 December 2011, businesses will “normally” have to prove that they have attempted to resolve any beef they have directly with the competitor, before complaining to the ASA. A letter setting out the issues must have been sent by registered post to a suitable competitor executive, and 5 working days allowed for response 2.

Taking stock

The ASA will review these changes after 12 months; and from January 2012 it will also examine the competitor complaints it receives on a quarterly basis to see whether CAP or the ASA should intervene in disputes (presumably where there are repeated or tit-for-tat ding-dongs).

1 "Aroma” would have been the kinder word. In fact, both Knorr and Bisto were beaten in the smell stakes by an unnamed third party product.

2 See the ASA’s “Final Response to the Process Review” of 5 October 2011 for full details.

The New Reg-ime

Mon, 19 Dec 2011 16:12:00 Z

Although perhaps surprised that a man named Reg Bailey should be Chief Executive of the Mothers’ Union, advertisers must nevertheless take seriously his report for the Government – “Let Children be Children” – published in June 2011. Its findings have prompted a nappy rash of new policies and proposals.

Not kidding

In direct response to one of Reg’s recommendations, the ASA has announced a new approach to sexual imagery in outdoor advertising 1. Ads that are “no more than mildly sexual” (e.g. a topless male model) can still go out to play. Images that are “sexually suggestive” (e.g. women in sexy lingerie and/or a mildly seductive pose) are likely to require placement restrictions away from schools. And posters bearing “overtly sexual images” (e.g. steamy clinches and passionate facial expressions) are now completely grounded.

Minor miracles

The ASA is also collaborating with other media regulators such as Ofcom, ATVOD, the BBC Trust, the BBFC, PPC and VSC/PEGI to produce a new website called ParentPort. This aims to cut through the acronym alphabettispaghetti, giving parents a more palatable route for complaints about inappropriate ads, programmes, products or services.

Not to be left out of the gang, the Advertising Association came forward with its own set of Best Practice Principles 2. Based on another of Uncle Reg’s recommendations, this voluntary initiative asks brand-owners to pledge not to offer sweeties (or other rewards) that encourage children to promote goods or services via their social relationships.

Uh oh, Lola!

Demonstrating its determination in this area, the ASA in November gave a stern telling-off to Coty about a magazine ad for “Oh, Lola!” perfume. This featured actress Dakota Fanning (aged 17) in a thighlength dress and holding an oversized bottle of the perfume in a “provocative” manner. The ASA concluded that Dakota looked under 16 and so the ad could be seen to sexualise a child.

1 See the “ASA statement on sexual imagery in outdoor advertising” published 11 October 2011.

2 See the AA’s “Best Practice Principles on the Use of Under-16s in Brand Ambassador and Peer-to-Peer Marketing” published 10 October 2011.

London 2012 - the prequel

Fri, 16 Dec 2011 16:01:00 Z

With the branding rules for the Olympics so notoriously draconian, does the Queen’s Diamond Jubilee 1 in June 2012 offer one some easier feel-good sparkle with which to associate oneself?

Windsor not

TV ads featuring or referring to the Royals will struggle to get past Clearcast as they are subject to the usual BCAP rules against references to living individuals without permission. For non-broadcast ads, the CAP Code specifically requires permission before the Royals (or their Arms and Emblems) can be shown or mentioned in advertising. Resistance is feudal – requests to the Lord Chamberlain for permission will likely be throne out.

Alongside the Codes are provisions of the Trade Descriptions and Trade Marks Acts, which make it an offence to use the Royal Arms or do pretty much anything that would make people think that your product or service is used by the Royals or has Royal approval.

Still not amused

Some of these rules have been temporarily relaxed for Jubilee-specific events and projects, including blanket approval for the use of “Diamond Jubilee” and “Jubilee”. But this relaxation is limited to non-commercial uses only, and so is of limited assistance to brand-owners.

Likewise, special rules are in place to allow the use of Royal references on commercially-produced Jubilee souvenirs (articles of a “permanent” nature; but no T-shirts, drying-up cloths or aprons thank you!). But they must carry no implication of Royal approval, be “free from any form of advertisement” and be in good taste (bang goes our souvenir edition of Newsnotes featuring Jubilee toilet rolls on the cover. 2)

Thank you Ma’am

The knight in shining armour may be the official Diamond Jubilee emblem 3 which was picked following a national competition for children. This emblem can be used by businesses for commercial purposes and in advertising, provided that the use broadly speaking celebrates or marks the Diamond Jubilee.

1 60 years on the throne!

2 See footnote 1 above...

3 You can read the Queen's Diamond Jubilee emblem guidelines here.

Sales of the century?

Wed, 14 Dec 2011 15:09:00 Z

We’re all familiar with those apparently never-ending TV ads promoting sofas at rock-bottom 1 prices for a “special” sale period. For some businesses such promotions are an essential strategy, but the ASA has recently reminded advertisers that there are rules to be observed...

You Can’t Do It (Even if you B&Q it)

A promotional offer for B&Q kitchens was given a hygiene check by the ASA in August, as it did not state a closing date 2. The ASA upheld the complaint, emphasising that the closing date was a material ingredient of the offer. The addition of “see online or ask in-store for more details” was insufficient to make B&Q’s recipe palatable – consumers were disadvantaged by not being given clear information in the offer itself.

Sale must end: ASA orders

In October, the ASA upheld a complaint against The Island Furniture Company, whose website was awash with messages such as “MASSIVE SPRING SALE HURRY! Must end midnight on Sunday...” The complainant suggested that this time limit was bogus, as Island had been floating similar wording on its site for several months. The ASA agreed: the ad was sunk, as it misleadingly implied both that the promotion was shortly due to end and that the terms offered would be available only for a limited period.

Glass act

By contrast, a complaint made against double glazing company HPAS Ltd t/a Safestyle UK was not upheld. Their radio ad contained the words, “...This week only, hurry hurry...” A listener complained that the ad was not transparently accurate, as the offer had been open for several weeks. Actually, the ad had run for just one week, and then there had been a two week window before it was run again. The ASA saw through the complaint, concluding that the offer was indeed available for “one week only” each time the ad appeared.

1 Probably not the expression that sofa-retailers would choose.

2 The CAP Code generally requires a closing date to be specified unless the advertiser can demonstrate that consumers were not disadvantaged by its omission.

Crunch time for cookies

Wed, 14 Dec 2011 14:59:00 Z

The influential Article 29 Data Protection Working Party has expressed serious concerns that the IAB Europe/EASA’s self-regulatory Code of practice on online behavioural advertising 1 is a few biscuits short of a barrel in terms of compliance with EU law on cookies.

Cookie Code crumbles?

The Working Party is not ginger nuts about the Code because it fails to accord with the requirements of the Privacy and Electronic Communications Directive – implemented into UK law in May 2011. The Directive provides that storing and accessing information on a user’s computer is only lawful where the user has given his or her “freely given, specific and informed” consent, “having been provided with clear and comprehensive information... about the purposes of the processing”.

Deemed unappetising

In most cases, the Working Party says that prior informed consent on an opt-in basis is required, regardless of whether this disrupts the user experience. From this standpoint, the Code’s presumption of deemed consent in the absence of user-objection has more holes than a stick of shortbread. The Working Party is also concerned that the Code’s advertising icon is not yet sufficiently recognisable to enable users to make informed choices about cookie-tracking.

Use-by date looms

As previously reported in Newsnotes, the UK’s Information Commissioner has granted a 12 month “grace” period (ending in May 2012) during which it will refrain from enforcement activity. However, over six months into this grace period it is still unclear what website operators should do to get their bourbons in a row.

It is hoped that the Commissioner may still provide some additional iced gems of guidance for website providers, although the chances of opt-out consent being a viable option appear wafer thin.

1 European Advertising Standards Alliance’s Best Practice Recommendation of 14 April 2011, incorporating the Internet Advertising Bureau Europe’s “EU Framework for Online Behavioural Advertising”.

Logos up in smoke

Wed, 14 Dec 2011 14:14:00 Z

Australia has become the first nation to legislate for plain packaging of cigarettes. From December 2012, Aussie ciggies are due to be sold in drab olive-coloured packets, with all branding, trademarks, logos and advertising stubbed out. The manufacturer’s name and brand of cigarette would appear in a small prescribed font at the bottom of the packs, with graphic health warnings and images filling the remainder of the packaging.

Brands in the line of fire

Unsurprisingly, tobacco firms consider this radical legal change at best a drag and at worst an unconstitutional appropriation of their IP rights. For brands more generally, such legislative intervention arguably undermines “the crucial role that branding plays in providing consumers with high quality, consistent products they can trust.” 1

Full throated legal challenges are already planned, with both sides huffing and puffing about their reasoning. Tobacco firms feel that they have been subject to a kangaroo court, and are threatening to sue for millions in compensation for lost brand value.

Butt on what evidence?

The Oz government says that the change is necessary to protect public health and to prevent children picking up the smoking habit. The tobacco industry is likely to contend that there is no evidential link demonstrating that the branding on packaging is linked to young people taking up the weed, while standardised packaging will arguably make counterfeiting easier.

Burning questions

The UK has considered but not pursued plain packaging 2. However, industry spectators will be wondering whether the Aussie example might give a light to campaigners over here, or inspire similar measures for other sensitive product categories (such as alcohol). Irrespective of the ban, it seems unlikely that Australia’s stance will represent the last gasp for tobacco companies.

1 British Brands Group/ACG Press Release of 10 November 2011.

2 Not yet at least: the Coalition government has promised to launch a consultation on this topic by the end of 2011, but also wants to see how things work out in Australia...

We have a situation...

Wed, 14 Dec 2011 14:05:00 Z

Just when product placement is finally legal on UK television, brands have been encountering some less welcome “placement opportunities” elsewhere.

Life can be a beach

Michael “The Situation” Sorrentino, a controversial US celebrity, was shown prominently wearing Abercrombie & Fitch (A&F) clothes in an episode of MTV’s “reality” show Jersey Shore. This unexpected brand placement was at first regarded as a shore thing by A&F, who released a best-selling “Fitchuation” T-shirt.

However, the tide seems to have turned at A&F, as it subsequently claimed to have offered substantial sums for the cast of Jersey Shore to refrain from wearing its clothes. Abercrombie’s itch was that “this association is contrary to the aspirational nature of our brand”. A&F may now regret tangling with Sorrentino. He is suing them in the Florida Courts for “false affiliation” (i.e. using his name, image and likeness to create brand awareness for its products).

Lacoste of unrequited love

Another high-profile clothing brand – Lacoste – has faced a brand endorsement nightmare of its own. Notorious Norwegian bomber and mass-murderer Anders Breivik was photographed sporting the famous crocodile on his way to court and claims it is his favourite brand. The police confirmed they had been asked to ban Breivik from further appearances in Lacoste clothing, but it is not clear whether they have the teeth to fulfil such a request.

Brief encounter

Speedos have also taken the plunge against a passionate fan. They launched legal proceedings in Canberra against a bisexual Australian blogger who had made a splash with his “salacious” websites fetishising the famous “budgie smuggling” brand. Although not all commentators felt it was a PR victory for the brand, the court ordered the blogger to transfer its domain names to Speedo and to refrain from featuring the Speedo brands or products in future.

[Note to legal team: please suppress those photos of Berlusconi reading Newsnotes.]

Flashing the flesh

Fri, 15 Jul 2011 17:57:00 +0100

In determining whether an ad is likely to cause harm or offence on the grounds of gender, it seems that the media placement, timing and likely audience can be key.

Officer’s, but not gentlemen

A prize promotion in an Officer’s Club shop window featuring a neck to waist photograph of a bikini-clad woman combined with the text ‘AWESOME VIEWS’ was found to be gratuitous, to objectify women and to be unsuitable to be seen by children. But the ASA apparently failed to pick up on the innuendo of the accompanying text ‘Start 2010 with a Bang’...

UnSuitable images

By contrast, 8ft backlit photographs of a man groping a woman’s breast and another of a man lifting a woman’s skirt to examine her knickers escaped sanction. This was because they were located in the Suit Supply store window in Westfield shopping centre, and the ASA does not have remit to investigate non-paid-for advertising in commercial premises.

Following consumer complaints, Westfield management did step in to ask the retailer to remove the photographs from its store. Facebook also demanded the removal of the images from its website following protests, although the images were still freely available on the retailer’s website.

Ooh Arr – Loverly bit of meat

Advertising definitely can’t portray women as chattels; but as cattle, it seems, is ok. An ad in the Farmer’s Guardian showed a well groomed woman in a fashion pose, sporting a cattle tag on her ear with the text ‘This season’s must have’. Complaints that the presentation of women as pieces of meat was objectionable were not upheld by the ASA, who found that because the majority of the readership of Farmer’s Guardian were male the ad was unlikely to cause serious or widespread offence!

Taming the cookie monster

Thu, 14 Jul 2011 17:47:00 +0100

Online service-providers are choking on their custard creams as a result of new legislation introducing a number of revisions to the UK’s Privacy and Electronic Communications Regulations.

That’s the way the cookie crumbles...

The revised Regulations, in force from 26 May 2011, make clear that in order to store a cookie on a user’s PC or mobile device marketers must obtain the informed, positive consent of their users. The use of “opt-outs” will no longer suffice.

There are some limited exceptions where use of cookies is strictly necessary to deliver a service a user has requested (e.g. shopping basket technology). However, in the majority of cases the new rules will require a complete rethink, to ensure that the use of cookies is transparent and meaningful consent obtained.

No slam-dunk for browsers

Marketers are offered some crumbs of comfort, in that browser settings can in theory be used to indicate consent. However, the soggy residue at the bottom of the tea-cup is that the Information Commissioner’s Office (ICO) deems current browser setting technology too inflexible to comply with the Directive. The Government is encouraging browser manufacturers to produce enhanced versions that can give consumers the necessary control over their personal privacy. But until such time as such new technological measures are wide-spread this is unlikely to provide a practical solution to the requirements of the Regulations.

Digestive pause

Official guidance for website operators in the months preceding implementation of the Regulations was distinctly halfbaked. In recognition of this, the ICO has announced a 12 month “lead-in” period (ending in May 2012) during which it will take no enforcement action provided that an organisation is taking proactive steps to review its existing use of cookies and to develop a compliance plan 1.

1 You can read the ICO guidance on planning for compliance here.

Ads take a lashing

Wed, 13 Jul 2011 17:44:00 +0100

The cosmetics industry has long sold its products on the basis of hopeful claims and images of aspirational beauty. But the use of pre- and postproduction techniques has increasingly been seen by regulators, politicians and the public as needing a make-over.

You couldn’t make it up

The problem is that the ASA’s approach to production techniques has itself not always been entirely wrinkle-free. It seemed that it was acceptable for Elvive to feature a bouncy Cheryl Cole (whose “mojo” came in the form of acrylic hair extensions) in their shampoo ad, but not ok for Rimmel to use various sizes of lash inserts in their mascara ad.

Judgement of Paris

A recent Help Note 1 from Laboratoire CAP/BCAP is designed to help distinguish between ads that are beautifully creative on the one hand and those that are an ugly business on the other. It highlights in particular the types of production technique that may run the risk of misleadingly exaggerating the effects of a cosmetic product.

The guidance clarifies once and for all that the use of lash inserts that are longer or thicker than the model’s lashes, and the use of excessive hair extensions, is likely to be misleading, unless the same effect could have been achieved without the falsies. Any image re-touching which is relevant to the performance of the advertised product (e.g. removing stray hairs for a product for flyaway hair) is also likely to be unacceptable.

This Newsnote is digitally enhanced?

The Help Note makes it clear that the use of superimposed text containing qualifications or disclaimers will not help the advertiser where an advertisement is “inherently misleading”. Rest assured, this Newsnote is a model of transparent clarity, needing no artificial intervention to boost its natural allure. If only the same could be said for our writing team (see pp 2-3)...

1 “The use of production techniques in cosmetics advertising”, CAP/BCAP, 4th April 2011

If you can't stand the heat...

Tue, 12 Jul 2011 17:33:00 +0100

It is always tempting for brand owners to thumb their noses at their competitors with a bit of comparative advertising, but this strategy must be handled with care as illustrated in the recent case of Rockwool v Kingspan.

Fiery dispute

Things had already been heating up between the two manufacturers of fire-safe insulation materials, leading to a number of ASA adjudications. So Rockwool were perhaps pushing their luck when they took their fire-reaction test on tour, using videos and road-show demos to claim superiority. Kingspan responded with all guns blazing and the two re-kindled their dispute in front of the High Court.

Campaign turns to ashes

In its judgment the court put a real dampener on Rockwool’s comparative approach, finding that the videos and road-show demos were misleading and failed objectively to compare features of the products, and that Rockwool had infringed Kingspan’s trade marks. The decision confirms that flouting the conditions laid down in the Misleading and Comparative Advertising Directive can be a sure-fire way to get your fingers burned.

In an innovative move, Kingspan also asked the court to grant declarations of fact about whether Rockwool’s campaign satisfied the requirements of the Directive. The court confirmed that it would be willing to do so in cases where a declaration can “resolve an issue of real substance between parties” – perhaps a useful new weapon in the brand-owner’s armoury?

The kid-gloves are off

By contrast, Sky was adjudged to have played by the rules in its recent press ad which showed a Billy goat “trip, trapping” into a 2-year fixed-term contract with BT, rather than opting for Sky’s own 1-year TV/broadband/call package. Despite BT’s bleating about misrepresentation, the ASA decided that Sky’s “trip, trap” reference did not impute any dishonesty in BT’s business practices, which must have really got their goat...

Supping with the devil?

Mon, 11 Jul 2011 17:39:00 +0100

The lead-up to implementation of the Bribery Act 2010 has received almost as much hype as the Royal Wedding, but as from 1 July 2011 it is now in force. The Act aims to ensure that businesses have robust anti-corruption procedures in place, as well as to combat the kind of palm-greasing that certain FIFA officials are alleged to encourage.

Bung-full of offences

The principle offences are: paying and receiving bribes, bribing foreign officials and the failure of commercial organisations to prevent bribery. Penalties include up to 10 years imprisonment for individual offenders and unlimited fines for corporate offenders.

Guilt by association

Perhaps the most significant addition to pre-existing law is the new offence (aimed specifically at commercial organisations) of failing to prevent bribery. This is committed when a “person associated” with the organisation – potentially a wide range of people such as agents, contractors and employees – is involved in bribery.

Proceed with caution

Crucially however, there is a defence available if the organisation can show that it had “adequate procedures” in place designed to prevent or deter bribery. So the onus is upon each organisation to work out what its own procedures should be given the particular risks it faces.

Inhospitable climate?

Corporate hospitality is arguably part of the life-blood of the marketing sector, but some felt it was under threat from the Act. Ministry of Justice Guidance has thankfully confirmed that reasonable and proportionate hospitality is not prohibited, provided it is for genuine business development purposes and falls within industry norms. Transparency and the maintenance of proper records of client entertainment and gifts will be crucial, with particular caution being needed around the time of pitches and reviews.

However, it looks like client lunches at the Ivy are here to stay – provided it is the norm for your industry of course...

@Celeb #Endorsements

Thu, 07 Jul 2011 17:36:00 +0100

Now that Twitter is being used to breach “super-injunctions”, and Wikileaks to disseminate national secrets, the use of websites and social media for promotional activity may seem rather old hat.

Flog by blog

But things got more exciting than Handpicked Media bargained for last December when the Office of Fair Trading took enforcement action against the commercial blogging network operator. Handpicked had been allowing product endorsements to appear in blogs on its websites without suitably prominent disclosure of the fact that they had been paid for. This is one of the practices that is “automatically unfair” under the Consumer Protection Regulations 2008 (CPRs), and the OFT extracted undertakings from Handpicked not to repeat the offence.

Twitter glitter

Of course product endorsements are nothing new; celebrities have always had a major role in this respect (think Britney and Sketchers or Cheryl and her L’Oreal locks), and consumer protection laws have always regulated such relationships. But the world of social media now allows the celebrity Twitterati to communicate directly with their fans with an immediacy they never had before.

RT @OFT #paid #ad

Following the Handpicked Media case, the OFT has issued some Q & As giving general guidance about how to keep paid-for social media endorsements on the right side of the law. The key principle is that consumers should be notified – in a manner that they cannot fail to see and understand – that they are reading paid-for commercial content.

As for Twitter in particular, the OFT has commented that “it is possible to use a hashtag that clearly indicates that a Tweet is a promotional activity.” The OFT hasn’t prescribed specific Twitter language, but in the US the Federal Trade Commission has suggested that the use of #paid or #ad may be sufficient.

OFT not soft

Thu, 07 Jul 2011 17:29:00 +0100

May 2011 witnessed the third birthday of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). Enforcement of the CPRs, which ban businesses from treating consumers unfairly, was initially ‘patchy’. But OFT activity seems to be on the up – here are a couple of recent examples.

Fair play? On the contrary...

The OFT decided to investigate a promotion by Groupola in which iPhones were offered on its website for £99 (rather than the usual £499 or so); it concluded that Groupola had engaged in ‘bait advertising’ – contrary to the CPRs – as only 8 iPhones were available at the promotional price, yet over 5 million people tried to take advantage of the offer.

The following comment was posted on the Groupola Facebook page in defence of the promotion: ‘I say fair play!... and no – I don’t work at groupola’. But as it turned out – you guessed it – it came from a Groupola employee and thus a further breach of the CPRs had been committed (falsely posing as a consumer). The OFT sought undertakings rather than a fine on this occasion, but court looms should Groupola make the same mistake again.

Creative with the truth

Purely Creative, by contrast, had exhausted the OFT’s patience and were hauled in front of the courts earlier this year in what was the first substantive High Court case under the CPRs. They were found to have misled consumers with their premium-rate scratch-cards which created the impression that the recipient had won a prize, when in fact the recommended means of claiming might cost as much or more than its value.

The judge disagreed with the OFT on one point however, holding that a promotion would not necessarily be unfair whenever any expenditure was required to claim a prize (even the cost of a stamp).

Birth of Placement

Wed, 06 Jul 2011 17:25:00 +0100

After a long and troubled gestation, as of 28 February 2011 the necessary revisions to Ofcom’s Broadcasting Code were finally made, delivering paidfor product placement in UK-made TV programmes for the first time. The new arrival is to be signalled to doting viewers by the display of a “P” logo at the start and end of programmes and after ad breaks 1.

Wake up and sell the coffee...

Top dogs in the race for take-up were Nescafé, positioning a coffee machine in ITV’s This Morning – a ground-breaking placement said to gain a media value of five times its reported £100,000 investment. Hot on their heels were Pedigree, whose Dentastix dog-chews were to be digitally inserted into Sky’s series “A different breed” in post-production. Karcher were also hoping to clean up via post-production, with Discovery agreeing to integrate a range of products – including a vacuum cleaner – into the background of programmes airing on its Real Time channel.

Break it up

The new rules clarify that single dramas now count as “films made for television”, meaning that product placement can take place but under COSTA 2 fewer ad breaks will now be permitted. Ofcom expects broadcasters to compensate for this by extending ad lengths, and so that public service broadcasters are not disadvantaged it has called time on the PSB ad-break length restrictions, at least for a trial period of one year.

Foul play?

All commercial references in TV programmes will still be subject to the longstanding rule against “undue prominence”. Ofcom showed a red card to Sky recently in respect of an Electronic Arts logo that it ruled had been displayed too prominently alongside match statistics during a televised football game. As the match was a 3-3 draw, the EA logo appeared more frequently than it would have done in a low-scoring game, but Ofcom could not be persuaded that the references were therefore editorially justified.

1 It seems that viewers are rather confused by the P logo – a recent survey found that only 9% of respondents knew its true meaning, while 11% thought it referred to parking, others mentioned PayPal, and the vast majority (75%) had no idea at all what it meant.

2 The Ofcom Code on scheduling of TV advertising.