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Are you ready for TfL’s new ban on advertising?

01 July 2016

It is unusual for a politician to fulfil an election pledge within the first 60 days of taking office. In fact, some politicians even refuse to take up office simply to avoid fulfilling an election pledge.

It is unusual for a politician to fulfil an election pledge within the first 60 days of taking office. In fact, some politicians even refuse to take up office simply to avoid fulfilling an election pledge.

However, the new Mayor of London, Sadiq Khan, has fulfilled one of his pledges, and in double quick time. Starting from 1 July 2016, adverts which promote an unrealistic or unhealthy body shape, or are likely to cause body confidence issues, will be banned from appearing on London’s public transport network.

The ban forms part of Transport for London’s (TfL) updated advertising policy which gives TfL an even broader discretion to accept or reject advertising. As well as the ban on so called “body-shaming”, the policy now also bans advertising which is “not socially appropriate” or which is “unacceptable for some other substantial reason”. When these phrases are used in advertising regulation, it is impossible for them to be tightly defined, as some flexibility is needed in their application, but there are clues to be found from decisions made by TfL’s predecessors at London Underground (LU). Back in the early noughties, LU banned ads for Spitfire ale for fear of offending Germans, despite the fact the Advertising Standards Authority (ASA) rejected the 19 complaints it received about the same ads.

LU also banned ads by Miss Selfridge and House of Fraser for being too risqué for the Underground. These “sexy” ads create particular problems on the Underground, given that women may find themselves alone on empty platforms late at night. The decision to ban an ad for the biography of Martin Amis on the grounds it showed a picture of the author in his boyhood with cigarette in his mouth was more controversial. LU said this was illegal, but critics argued that while it would have been in an ad for cigarettes, it was not illegal in an ad for a biography.

Please mind the fat

The Mayor’s changes come in the wake of Protein World’s controversial “beach body ready” weight loss campaign. The ad featured a bikini-clad model and sparked a huge public backlash for allegedly “fat-shaming” women by implying that anyone who didn’t have a slim and toned body was inferior. Whilst the ASA received 378 complaints about the ad, the regulator went against public opinion and ruled that the ad was not offensive or socially irresponsible, although it was banned on other grounds.

TfL’s previous advertising policy stated that TfL could only remove a fat or body-shaming ad if it reasonably believed that the ad caused widespread or serious offence to members of the public. This is a difficult test to satisfy, particularly once the ASA has considered the issue and reached the conclusion that the ad does not breach applicable advertising rules set out in the CAP Code. The changes to TfL’s advertising policy means that it is now much easier for TfL to remove ads which it considers serve to promote an unhealthy body image.

Signalling problems

The question is, however, what exactly is an unhealthy body image? TfL hasn’t provided any specific guidance for advertisers on this issue, although it will be working closely with its advertising partners Exterion Media and JCDecaux to consider what the policy change will mean for advertisers in practice and to monitor their compliance with the new rules.

TfL will likely follow the ASA’s lead and seek to ban adverts which feature unhealthily thin and underweight models, such as those which appeared in recent ads for Gucci and Yves Saint Laurent. However, following the Protein World experience, TfL may go even further and also ban ads which suggest that one body type is better than another, even where the ad complies with the CAP Code (as was the case with the Protein World ad). Brands wishing to advertise on London’s Tubes or buses should therefore exercise caution when creating ads for products or services relating to fashion, beauty, fitness or weight loss which touch upon body image themes, particularly when targeting younger people.

Where exactly TfL will draw the line on body shaming ads should become clear over time. There is no doubt that TfL will be monitoring public opinion very closely in its effort to help make its 4 million daily passengers feel good about their bodies. While the wording of the Protein World ad in conjunction with the image clearly caused many people to have concerns about body shaming, there is now a degree of uncertainty about other ads that simply show sexy young men and women who are slim, shapely or muscular advertising lingerie or underwear, even without the elements of sexuality that have been banned in recent years by the ASA. At what point are fat, middle aged men put to shame by the sight of David Beckham with his six-pack in a pair of Calvin Klein’s? Can we expect Jonny Vegas to be new face, and body, of the luxury underwear brand?

Operating a good service

The challenge now for advertisers and agencies will be to assess when an image that might be acceptable to the ASA will be unacceptable to TfL. Our team includes a former executive from the ASA, as well as lawyers from the age of steam who were advising on these issues back when the gap between the CAP Code and the LU policy emerged back in 2001, so we will be glad to help brands and agencies mind the gap and operate a good service.

Brinsley Dresden

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