ReactS

Coming Soon: Bet Your Bottom Dollar Online?

Huw Morris — Mon, 02 Jan 2012 09:34:00 -0500

Unlike in the United Kingdom, online gambling activities are not permitted in the United States. The regulator has historically held any online gambling activity to be illegal, until now. On December 23, 2011 the US Department of Justice reversed its decade long position on the applicability of the US Wire Act to online gambling that does not involve sports betting. This may well clear the way for individual States to become more aggressive in legislatively enabling intra-State online gaming and could potentially allow the Federal Government to permit licensing and regulating of online gambling. This is not simply big news for the US. Gaming and gambling operators around the world may now be able to establish a foothold and ultimately a major presence in the US with Uncle Sam's online casinos. For more information, read the Client Alert prepared by lawyers in our New York Office.

Cyber Lenses Put Alternative Reality In Focus

Nick Breen — Fri, 09 Dec 2011 12:53:59 -0500

If you wear contact lenses, chances are you find them a necessary evil, an uncomfortable "poke in the eye" to start your day. This may all change in the not too distant future as a team of researchers at Washington University are developing computerised contact lenses which will be able to receive and display certain information directly into your eye. Emails, texts, tweets and all other sorts of notifications can be displayed immediately and directly without having to so much as touch your smart phone or laptop.

The team, lead by Babak Parviz, have been testing basic prototypes on rabbits and have so far had success. While Parviz is adamant that this technology is within our reach, you may have to wait until sometime in the 2020s before they become available to consumers.

The technology will incorporate control circuits, communication circuits and mini-antennas in order to achieve the desired result. According to Parviz, the main challenge facing them is the power supply, comprising of a wireless battery.

If these cyber lenses function as anticipated their application is limitless. Already there are talks of using them for directions, mobile notifications, zoom functionality, visual aids, gaming and even a way to watch television. From an ad perspective exciting times lay ahead, Minority Report style personalised holographic promotions may transcend the silver screen and become a reality.

Given that currently the most sophisticated prototype has only managed to sustain a single dot of light projecting about a pixel of digital data, we may be getting ahead of ourselves. Even so, this will clearly provide the advertising and marketing industries a new and innovative way to promote goods and services in the future. Watch this space.

Association of National Advertisers Challenges ICANN Authority to Establish New Top Level Domains

Huw Morris — Thu, 04 Aug 2011 12:41:39 -0500

Directly impacting the operations of European companies, the prospect of new TLDs being authorized by Internet Corporation for Assigned Names and Numbers (ICANN) is being challenged. Today, in a letter to Mr. Rod Beckstrom, ICANN President, the ANA (Association of National Advertisers), the U.S. based trade association that represents over 400 international brands, detailed major flaws in the proposed ICANN program that could give rise to virtually any word, generic or branded, becoming Internet top-level domains (TLDs). By ICANN's own estimates, its program could mean 300 new TLDs in the first year alone with authorization for up to 1,000 in each following year. The ANA argues that the program is economically unsupportable and likely to cause irreparable harm and damage to the Internet business community in general. By means of this letter, the ANA with the assistance of Reed Smith, kick starts a serious effort to prevent billions of dollars of harm to brand owners around the world and return ICANN back to the negotiating table by any means necessary.

To learn more about generic top-level domains, read Reed Smith's Client Alert.

Is The Beauty Industry Set For A Makeover?

Kirsty Ward — Tue, 12 Apr 2011 09:21:58 -0500

Last year, Rimmel London was criticised for its “1-2-3 Looks Mascara” television and magazine ads when the Advertising Standards Authority deemed in its adjudication that the use of lash inserts on model Georgia Jagger exaggerated the effect achievable from the use of the product alone and the disclaimer “Shot with last inserts” was insufficiently clear in providing information.

In response to similar complaints about use of eyelash inserts, hair extensions and airbrushing in cosmetic advertising the Committee of Advertising Practice and the Broadcast Committee of Advertising Practice have published new guidance designed to educate advertisers in the cosmetics sector and prevent misleading and exaggerated claims about the effect a product is capable of achieving.

The CAP Help Note, "The Use Of Production Techniques in Cosmetics Advertising", draws a distinction between the use of obvious exaggeration that is not likely to be taken literally, the effect actually achievable by the product, and the exaggeration which consumers interpret as begin indicative of a product’s capabilities. Consequently, forthcoming ads for mascara may use eyelash inserts to fill in natural gaps in the lash line but not to create a lengthening or volumising effect beyond what can be achieved by the mascara on natural lashes.

Post-production airbrushing will also be scruintised to avoid misleading consumers on the apparent performance of the product, and advertisers may no longer be able to remove or reduce the appearance of lines and wrinkles, add highlights and shine or remove ‘fly-away’ hair. The Help Note further reiterates the importance of advertisers continuing to document and retain appropriate evidence to demonstrate any research, styling and re-touching, as required under the Codes, and also clarifies that the use of qualifications and disclaimers will not excuse otherwise disallowed activities. Disclaimers and qualifying statements should only be used for adding clarity and must be legible and appropriately placed. This comes at a time when the cosmetic industry is possibly already turning a marketing corner. In the US last month, French cosmetics brand Make Up For Ever launched the world’s first unretouched make-up ad campaign and in the UK both Maybelline’s and Maxfactor’s TV ads have taken a deliberate move towards a more natural setting. As our industry becomes more and more transparent, it remains to be seen whether this new guidance will initiate a decline in highly stylised ad campaigns in favour for the natural look. Please contact a member of the ReACTS team for further information and assistance with your advertising.

Is the ASA Getting in Your Personal Space?

Huw Morris — Tue, 01 Mar 2011 13:40:12 -0500

The wait is finally over... Hot on the heels of yesterday's launch of product placement onto UK television, today marks another dawn of a new age in UK advertising. As of today, Tuesday 1st March 2011, the regulatory remit of the ASA is extended to cover online non-paid for space and pages under the control of advertisers. This means that the CAP Code for non-broadcast advertising, which previously only applied, in an online context, to advertising in paid-for space, such as pop-ups and banner ads, will now regulate promotional activities on companies' own websites and on sites such as a brand's official Facebook page, Twitter feed or YouTube channel.

It remains to be seen how the ASA will manage, if at all, to police its new regime, considering the enormity of this task and the limited funding available. But the controversial new sanctions it has the power to impose on infringing advertisers should not be sniffed at.

Our own Marina Palomba shares her thoughts on this groundbreaking new development in MediaWeek today.

Please see our Ad Guide for further information about how this will affect our industry, or contact a member of the ReACTS team.

"P" is for Product Placement

Neil Gillard — Mon, 28 Feb 2011 15:01:59 -0500

Today (Monday, 28th February 2011) sees the introduction in the UK of product placement in television programmes. Of course, product placement is not a new phenomenon here in the UK and has existed in feature films, gaming and certain imported television programmes for many years. Nevertheless, today marks something of a watershed for the UK television industry.

Detractors will point to Ofcom's research which suggests that product placement may only be worth £25m a year. They will also flag the various restrictions contained in the new rules which, for example, prohibit alcohol and products that are high in fat, salt and sugar being used for product placement.

Those in favour of product placement believe that it could be worth as much as £100m a year within the next few years and will point to territories such as Australia and the United States where product placement now accounts for 5% of the total television advertising market. They will also note the development of digital technology which allows products to be placed into programming at the post-production stage which also opens up the possibility of different products being placed into different markets.

In our client alert we examine the new rules in detail.

Super Bowl XLV: The Stakes Were High On and Off the Field

Simeon Newman — Sat, 12 Feb 2011 12:31:18 -0500

115 million viewers. $3 million for 30 seconds of airtime. $210 million total advertising spend. Forget the Green Bay Packers and the Pittsburgh Steelers slugging it out for the Vince Lombardi trophy, the real game was being played in the Super Bowl’s commercial breaks.

Super Bowl XLV, like its predecessors, produced some very well received ads. An ad for the Chevrolet Camaro became the most viewed ad of all time according to Nielson, whilst Volkswagen’s Darth Vader “The Force” introduced the new Passat to a worldwide audience. Nielson's research showed it to be consumer’s favourite Super bowl advert. An extended cut of the VW ad has been watched by over 20 million viewers on YouTube, and has generated over 18,000 comments. Chrysler’s Detroit ad for the Chrysler 200 featuring Eminem, has had over 3 million hits on YouTube and has generated over 10,000 comments.

However, one of the pitfalls of such prominent advertising campaigns is the damage caused if a promotional message fails to hit the mark. Not every advertiser scored a touchdown at the Superbowl. Groupon’s Tibet ad has faced criticism from China and the Free Tibet movement. The ad features an actor speaking over landscape shots of Tibet: “The people of Tibet are in trouble, their very culture is in jeopardy.” Then the camera cuts to a Chicago restaurant: “But they still whip up an amazing fish curry. And since 200 of us bought at Groupon.com, we’re each getting $30 worth of Tibetan food for just $15 at Himalayan restaurant in Chicago.” This arguably poor taste advert appeared during the Super Bowl along with two Groupon ads featuring comparisons between deforestation and half price bikini waxes and whaling and half-price whale watching.

Groupon’s ads highlight how brands are keen to explore new ideas and concepts in order to establish a unique brand identity. But pushing the boundaries can be a risky practice. In the UK, a controversial ad similar to that run by Groupon, may fall foul of the advertising codes. Rule 4.2 of the BCAP Code states “Advertisements must not cause serious or widespread offence against generally accepted moral, social or cultural standards.” Advertisers are therefore urged to tread carefully before employing such shock tactics to promote their brands.

Twitter At Your Peril - Duty to Disclose Paid for Blogging

LexBlog — Tue, 14 Dec 2010 05:39:36 -0500

It comes as no surprise that the Office of Fair Trading, (OFT) has confirmed that on line marketing and PR practices that do not disclose the fact they include paid for promotions are deceptive and a breach of the Consumer Protection regulations, (CPRs). ReACTS has been advising marketers to beware for some time about such practices, and the issue is covered in our Ad Guide on Social Media.

The latest announcement comes as the OFT investigated a company called Handpicked Media and found that it had broken rules of disclosure by purchasing blogposts and tweets for sponsored promotions without disclosing the fact clearly. While the OFT may not wish to instigate a clamp down on this sort of activity itself but the ruling underlines clearly the law in this area and strengthens the hand of the ASA when it takes over self regulation of promotional messages on the Internet in March 2011.

In its press release The OFT's has now stated unequivocally that " We expect on line advertising and marketing campaigns to be transparent so consumers can clearly tell when blogs, posts and microblogs have been published in return for payment or payment in kind. We expect this to include promotions for products and services as well as editorial content.'

There are hundreds of sponsored blogs, tweets, viral films, and use of brand ambassadors which hide the fact that these individuals are being paid to comment on products and services. Being transparent is crucial to protect the reputation of your brand and ensure compliance with the law.

Apple's iAd Set to Dominate?

Simeon Newman — Sat, 11 Dec 2010 12:42:25 -0500

This month Apple starts to roll out its iAd mobile ad network in Europe. The service will go live in the UK first, with launches in France and Germany early next year and other countries throughout 2011. European launch partners will include Renault, Nespresso, Citi and Evian. iAd will offer advertising inside apps initially on the iPhone and iPod Touch with plans to incorporate the iPad in the future.

iAd launched in the US earlier this year and Apple estimates 21% of the total US mobile ad spend for the second half of the year will be spent on iAd campaigns. The Wall Street Journal has painted a more downbeat forecast. It claims that only 2 of the 17 launch partners in the US (Nissan and Unilever) managed to run campaigns in July, with only three more running campaigns in August. Some of perceived reasons behind such a low initial take up is the cost of approx “£600,000 plus per campaign” and, Apple’s “tight control on the creative aspects of ad-making”. These requirements mean only the most “determined and richest brands” can afford an iAd campaign. Agencies and brands have called for the cost of a campaign to be reduced to around £100k and for more tracking data to be provided. Currently “you have to trust the data Apple send you”. It remains to be seen whether Apple will loosen their control or if their rivals will be able to capitalise on this. Google’s AdMob and Millenial Media are believed to have adopted a more flexible approach, varied their prices to brands and allowed advertisers to run “test campaigns”.

Despite these teething issues, iAd has received positive feedback from Nissan, who reportedly spent $1m on a campaign for the Leaf, their new electric car. The company claimed their iAd campaign had “five times the clicking through rate of their normal online campaign”. Only time will tell if iAd will dominate the mobile ad market. However, as brands and agencies embrace this growing market it is essential that they ensure that their campaigns are delivered effectively and efficiently.

Common sense, you can photograph your kid's school nativity play

LexBlog — Fri, 10 Dec 2010 09:22:36 -0500

At last, common sense has triumphed with the Information Commissioner's Office (ICO) issuing a press release confirming that the Data Protection Act 1998 does not prevent family and friends from taking photographs at school concerts or plays this Christmas, but that doesn't mean little Johnny can appear in the next sweetie ad!

The ICO emphasised that photographs simply taken for the family album were exempt from data protection laws. The revised guidance for schools and local authorities gives advice on taking photographs in educational institutions, and explains that the Act is unlikely to apply in most situations where photographs are taken by parents in schools. What advertisers need to realise is that while the UK does not have image rights as such, therefore allowing the use of people's image in advertising without consent in certain circumstances, the use of children's images in a commercial context is extremely risky and unwise. This advice may seem like common sense too but image rights and 'rights to publicity' are a complex legal area.

For information on the use of celebrities and ordinary folk as well, please see our Guide.

Be Careful What You Tweet

Simeon Newman — Sat, 04 Dec 2010 11:49:42 -0500

Ordinary Joes, footballers and even members of the clergy have all got themselves in hot water when making comments on Social Media sites. Twitter is on course to have 200 million users by the end of 2010. There are currently over 50 million tweets of 140 characters or less each day. However, as multinational corporations, advertisers and members of the public embrace this service, a note of caution should be sounded. Paul Chambers’ lawyers are currently preparing an appeal following his conviction for “menace”, after he tweeted “Cr*p! Robin Hood airport is closed. You've got a week and a bit to get your sh*t together otherwise I'm blowing the airport sky high!!”. Paul has maintained this tweet was simply a joke but to date this ‘joke’ has led to a criminal conviction, with fines and costs of approximately £3,000 (or around £22 per character). Footballer Darren Bent landed himself with a fine of £80,000 from his then employer Tottenham Hotspur FC by posting a tweet directed at the club’s chairman to “stop f**king around” regarding his transfer to another club.

However, social media faux pas are not just confined to Twitter. A Church of England Bishop was suspended recently and forced to apologise for making disparaging remarks about the impending Royal nuptials on his Facebook account. The Rt Rev Pete Broadhurst posted comments chastising the “nauseating tosh” surrounding the announcement of Prince William and Kate Middleton’s forthcoming nuptials. He also referred to the couple as “shallow celebrities”, complained the Royal Family was surrounded by “broken marriages and philanderers” and compared the marriage between Prince Charles and the late Princess Diana as a “disaster in slow motion between Big Ears and the Porcelain Doll”. The Bishop has since issued an apology expressing his “sincere regrets for the distress caused” by his remarks and was suspended from his post.

These events demonstrate the risks for companies with a presence online. Companies simply must have a detailed social media policy in place and train their staff in order to prevent their employees making damaging comments about the brand. An applauded example of a Social Media policy can be found here, but beware, even this did not prevent one of the biggest online reputational scandals of recent years.

The Twilight Days of the Free Lunch?

LexBlog — Thu, 02 Dec 2010 08:59:30 -0500

Does the Bribery Act, which comes into force next April 2011, mean the end of corporate hospitality? If so it will certainly hit the media industries harder than most, and yet the ad world has yet to really get to grips with the implications of this new legislation.

It is not that the industry is corrupt or based on back handers but simply that the media world flourishes in environments of congeniality and entertainment. However it seems the days when Lord Bell, (the famous MD of Saatchi and Saatchi in the 1970s), boasted of spending hundreds on caviar for his clients at one lunch alone, may be unwise in the future. While the Act is not intended to stop a free lunch the penalties for infringing one of the four offences are severe, and likely to focus the minds of any board of directors. There will be the possibility of a maximum jail term for bribery by an individual of 10 years and a company convicted of failing to prevent bribery could receive an unlimited fine.

Draft guidance published by the Ministry of Justice in September has only made matters worse. The Guide suggests that all businesses will have to keep records of the hospitality staff receive and hand out.

The Telegraph described the proposals as an 'administrative nightmare'. While intended to focus on bribes to foreign officials the Act also applies to all British businesses, small or large. There is enormous criticism of the Guidance and calls for clarifications have been made prior to the Act coming into force in April.

Reed Smith support PACT (the Producers Alliance for Cinema and Television) in its call for the MoJ to clarify when a payment may be in the public interest, for example when paying a bribe in a foreign country to gain access to areas needed to carry out investigative journalism. PACT even point out that in some circumstances lives depend on bribes to get hournalists and film makers out of difficult and frequently dangerous situations. However other times the reality is more mundane but equally valid, filming in some jurisdictions will just not happen unless the 'local wheels of business' are oiled sufficiently. Try shooting an ad in some parts of India for example.

So what does the Act cover?

The main elements of the 2010 Act are that it is an offence to:

give or receive a bribe
promise, offer, request or agree to receive a bribe. 
bribe a foreign public official

It is worth noting is that public and private sectors are covered and that is a senior officer consents or connives to (i.e turn a blind eye to) the commission of any of the above offences, then they too are guilty of the offence. The Act applies to all UK businesses.

There is also the new corporate offence referred to above for businesses that fail to implement adequate preventative procedures where an act of bribery is committed in connection with its business. There will also be other consequences associated with any conviction under the Act, including the disqualification of directors; prevention from public procurement bids and the confiscation of assets.  

Agencies, advertisers and media owners will need to put in place monitoring systems. Training senior staff will be crucial. Naturally not all businesses face the same level of risk. Media businesses need to analyse the risk and put in place proportionate procedures. Agencies should consider a limit to the value of corporate entertainment and gifts as it needs to be remembered that the recipient may have to disclose the gift if it is significant.

In the meantime the consultation on the MoJ guidance closes on the 8th November and one hopes for better clarification of issues in the next guide to be published before the Act comes into force.

A Mashup made in Social Media Heaven

Huw Morris — Sun, 21 Nov 2010 10:31:05 -0500

If you can't beat them, join them. News this week that Facebook and Myspace, two of the biggest rivals in the social media arena, are to form a rather unlikely alliance. Myspace has dubbed the move its "Mashup with Facebook". The partnership will allow Myspace users to create a "personalised stream of entertainment content" by matching their likes and interests on Facebook to relevant Myspace topic pages, profiles, videos and other content in various categories such as TV and film, music and celebrities. It also allows users to engage with other fans who share the same interests, further promoting the concept of sharing, which is at the heart of social media. And this is about to be made even easier, since Myspace will reportedly soon incorporate the Facebook "Like" button onto its site. The collaboration appears to be engineered by both companies to combat the potential threat created by the launch of Apple's music-orientated social network, Ping, in September this year. Ping allows the estimated 160 million iTunes users to follow their favourite artists and friends to find out what music people are talking about, listening to and downloading. They can find out about tour dates, and share views on new material. According to Apple, the number of users on its new social media service rocketed to 1 million within 48 hours of its launch, so the threat to other social networks is apparently very real, although as Josh Halliday points out in The Guardian, this threat may ultimately be limited, since Apple's social network is restricted to users of iTunes.

The benefits for advertisers with the Myspace-Facebook alliance remain to be seen, but it goes without saying that with a potential combined audience of upwards of 600 million users worldwide, and growing, brand engagement opportunities seem endless. Lady Gaga currently has 32.6 million people "liking" her on Facebook, and 1.4 million friends on Myspace, not to mention her 7 million followers on Twitter. The major international brand Starbucks, has over one million followers on Twitter, and over 18 million "likes" on Facebook. In a week which saw the announcement of a new royal engagement, it is pertinent to note that even the Queen of England now maintains a vast presence on social media sites, running an official profile on Facebook, tweeting on her official Twitter page, and operating an official YouTube channel. It is essential these days for any and all brands to actively participate in the social media environment. But social media marketing is littered with legal and reputational pit-falls and advertisers need to tread carefully. Please see our AdGuide for further information on how to navigate this minefield and protect your brand online.

Prince William and Kate Middleton's Marriage - An Ad Man's Dream

LexBlog — Thu, 18 Nov 2010 11:59:15 -0500

The news that Prince William is to marry Kate Middleton has caused huge media excitement in the UK and across the world. Like all celebrities, Will and Kate attract huge interest and brands want to benefit from association with a major event, a royal wedding between the future King of England and a commoner being possibly the most important national celebrations in many years.

Many people will have no interest in the nuptials at all. Equally an overly extravagant ceremony and festivities, in what will be an inevitably difficult financial year for many in UK , may be unpopular. For the Royal family there will be a fine line between staging a show to boost morale amongst many Royal supporters, while not being seen to be spending too much money in a year when even the Queen has been forced to make financial cuts to her budget. Nevertheless, thousands are expected to want to join the celebrations of this fairytale romance and there is undeniable benefit to advertisers associating themselves with the story. The media frenzy will continue in the lead up the wedding and focus not only on the wedding day itself, but on all elements surrounding future Princess Catherine's life, what she wears, where she goes, what she likes to buy.

Advertisers and ad agencies beware however, there are a few important legal issues that restrict the use of Royalty and royal emblems and insignia, uniforms and private buildings in advertising.

First, of course, licences/consents are needed for the use of any photographs of the couple. More importantly however advertising may not claim or imply that a particular product is endorsed by the Royal Family or connected in any way to royal events when it is not. In particular, members of the Royal Family ought not normally be shown or mentioned in a marketing communication without consent (CAP Code Rule 6.2) and the Royal Arms or any royal emblems must not be used without prior permission from the Lord Chamberlain’s office. In addition use of a Royal Warrant can only be made by the warrant holder in line with the rules of such use. The Royal Warrant Holders’ Association (rule 3.52).

The only significant exception to the general rule about not using royalty in advertising is if there is a truly incidental reference which is not connected to the advertised product or services or the use is with reference to publications featuring the royal family such as a book, film or programme.

The use of uniforms may also be protected. The Uniforms Act 1896, which is still in force today, prohibits the wearing of a military uniform by those not serving in the Forces. It may be that for legitimate advertising purposes, an exemption to the rule may apply, and a similar exemption may also apply under the Police Act 1996, which makes it an offence to impersonate a policeman. However under the Chartered Associations (Protection of Names and Uniforms) Act 1926, any association incorporated under Royal Charter can apply for an Order in Council to protect the name, insignia and uniform of that association. It is always worth checking before using any such badges, emblems or insignia.

Clearly the Royal Family wish for the country to enjoy and celebrate this happy occasion and for businesses to benefit from any commercial boost to the country's fortunes that the wedding will generate. Humorous advertisements connected with Royalty have been overlooked by the ASA in the past, provided they are not likely to cause offence. One cannot help but query whether the use in a Eurostar advertisement of a lookalike Prince Charles was entirely successful though? So while care must certainly be taken, that is not to say that all references to the Kate and Will, the wedding, the Royal Family are impossible.

An Internet Bill of Rights?

LexBlog — Mon, 08 Nov 2010 13:31:54 -0500

Governments across the world are increasingly under pressure from privacy advocates and some consumers to better regulate the use of personal data on line. Under Ed Vaizey's proposed plan announced last week, Google and Facebook and other social media networks and search engines would be required to sign up to a new code under which consumers would be able to get redress if they feel their privacy has been invaded.

The UK government is in discussions with the ICO, Information Commissioners Office, about how to develop such a code. What this will mean for advertisers using social media is as yet unclear though Ed Vaizey likened this idea to the mediation service offered by the Press Complaints Commission, which is both worrying and perhaps reassuring since the PCC is not renowned as particularly effective means of redress for consumers but is totally self regulated by the newspaper industry. Thus we might be led to assume that the search engines are being asked to run their own such self regulatory body. Given the lack of funds in the public purse one can assume this to be the case. No doubt Google will argue that it already has means for consumers to complain and seek redress. The cost of establishing and maintaining an independent body offering a complaints and mediation service would be colossal and without funding it seems unlikely this idea will take off in the immediate future.

What would it mean though for website owners and major brands?

The government wants major websites to sign up to a code which is advertised on the home page of that site with a direct link through to the Code and a 'simple' explanation of how to complain. This proposal is similar in many ways to the IAB UK's Best Practice Principles for on line advertising community and their call for an icon to be placed along side any advertising served to a user by means of behavioural targeting. However the industry should resist too many such icons and links. There is a danger of a ludicrous proliferation of information, which we already know tends to confuse consumers rather than help. there is also already an inevitable need to have links to complicated privacy policies, marketing codes, promotional terms and conditions.

There is little doubt that transparency is already key to ensuring compliance with data protection legislation but it will be interesting to see if any industry body or indeed the ICO, will get any additional powers to enforce punishment on those that breach the new code. As it is the ICO had limited powers to fine for serious breaches of the Data Protection Act, though those powers were extended in April 2010. The ICO can now impose a fine of up to £500,000. It is unlikely that an industry led body will have sanctions involving the power to fine.

To date regulators in the UK have taken a fairly pragmatic and sensible approach to privacy on the Internet. However Europe is taking a firmer view and we shall have to await further decisions on Google's harvesting of data during its Street view mapping and in relation to on line behavioural advertising. The advice to advertisers in the on line environment is to take care and be transparent. For a summary of issues and best practice guides see our Social Media Marketing Guidance Note.

Waitrose caught telling porkies?

Simeon Newman — Wed, 03 Nov 2010 10:55:06 -0500

Completely free-range pork? Pigs might fly, according to the ASA. Waitrose is the only major supermarket never to have its advertising fall foul of the Advertising Codes until its recent high-profile celebrity-endorsed advertising campaign which has been dealt a rather embarrassing blow. The £10m campaign fronted by Delia Smith and Heston Blumenthal, aims to reinforce Waitrose’s brand image as a supermarket priding itself on the provenance and traceability of its produce. These ads have also been accompanied by recipes and a new range of products. However, a recent ASA adjudication held that two TV ads and one press ad concerning Waitrose's pork products were misleading and in breach of rule 5.11 of the BCAP Code and rule 7.1 of the CAP Code. The first TV ad showed Heston outdoors with some pigs saying "in my opinion, some of the best tasting pork comes from British pigs that have been outdoor bred, just like these pigs". The ad then features a conversation between Heston and a pig farmer concerning the effect "plenty of fresh air, cereal-based diet and of course a comfortable bed" has on the meat’s flavour. The second TV ad stated "Waitrose essential pork comes from pigs that are outdoor bred." The print ad stated "All essential Waitrose pork and bacon comes from British outdoor bred pigs…". However, it emerged that these pigs, whilst technically bred in fields, were reared indoors after only a few weeks. Waitrose argued that there was a clear difference between an animal being "outdoor bred" and "outdoor reared". The ASA said this was confusing to consumers, and the ads have been banned from appearing again in their current form.

Other supermarkets have received complaints in a similar vein, but have managed to save their bacon. A Sainsbury’s TV ad earlier this year featuring Jamie Oliver was challenged for claims that Sainsbury’s pork sausages were made from 100% British pork, a possible interpretation being that there were no other ingredients. The ASA held, however, that the majority of viewers would appreciate that sausages are made from ingredients other than meat and would view the statement as a reference to the origin of the meat only. Likewise, Tesco recently received

a complaint for a print ad which stated that their Finest range beef was sourced from "long established, family-run British farms". Competitor Morrison's challenged the ad on the grounds that it implied that Tesco employed their own butchers as they “are fussy when it comes to Finest beef” and that Tesco cut meat for their customers in-store. The ASA decided, on a factual assessment of the relationship between Tesco, its butchers and the famers in question, that had been no breach of the CAP Code.

Advertisers and agencies are advised to check all claims made in their advertisements. Under the advertising codes, all claims must be capable of substantiation with factual evidence. If in doubt, seek professional advice. See our AdGuide on the updated advertising codes for more information on making claims in advertising.

Virgin in Champagne Bath Scandal

Charlotte Davies — Mon, 04 Oct 2010 08:26:09 -0500

A Virgin Holidays poster advertising their "Travel Guru Services" was recently found by the ASA to be in breach of the CAP Code in relation to alcohol used in advertising. The ad depicts four rockstars in a jacuzzi full of champagne, with various bottles and glasses surrounding them and a female Virgin Holidays employee pouring champagne into the jacuzzi. The ASA (after one complaint was made), found that alcohol was prominently featured and that the ad and "indicated a casual attitude towards the handling and consumption of alcohol", even though the ad was not specificaly for an alcohol brand. It was also decided that the inclusion of rockstars in such a scenario could appeal to people under 18 and encourage them to drink.

Advertising agencies and their clients should take note that the CAP Code rules on the use of alcohol in advertising are indivisible. Using the example given in the ad discussed above for alcoholic drinks, even if an alcoholic drink is not being marketed directly (the ad is question was for Virgin's travel services) inclusion within the ad means that the CAP Code rules in relation to alcoholic drinks will apply. When alcohol is featured in advertising, it must be shown in a socially responsible fashion and excessive consumption must not be encouraged, whether the ad is for the alcohol brand or not. When promoting a particular brand of alcohol, advertisers are advised consult, in addition to the CAP/BCAP Code, the Portman Group's Code of Practice, and to consider using the DrinkAware logo in their ads.

Luxury Brand Protection? Stella McCartney v. the Sanitary Towel

Charlotte Davies — Sat, 25 Sep 2010 12:13:31 -0500

Advertisers have been given the green light to continue to use the name of products they give away as prizes in promotions, without needing the permission of the brand/product owner, following a recent controversial adjudication by the ASA

The ASA disagreed and found in favour of Bodyform in all respects. Clauses 7.1 (Truthfulness),14.7 (Testimonials and Endorsements) and 20.1-20.2 (Denigration) of the CAP Code were considered, but the ASA ruled there had been no breach. It was decided that the adverts were not likely to discredit the underwear brand or company and that "readers would understand…that [Stella McCartney] underwear was a product of value and a desirable prize." The ASA also commented that the CAP Code does not require an advertiser to get permission from a brand before referring to a brand. Is it time this requirement was added? Or should luxury brands be grateful with the free advertising in any context? What’s next? Toilet cleaning products offering luxury branded jewellery as prizes? Could coupling a particular product with a luxury brand in an ad ever be deemed denigratory to the luxury brand? Watch this space!

Some believe this decision is contrary to the ECJ ruling in Copad SA v Dior (Case C-59/08, 23 April 2009), where a "trademark's prestige" and "the aura of luxury" were found to be "essential" to brand protection. Stella McCartney Limited challenged the adverts for a competition being run by the makers of female sanitary products, Bodyform (SCA Hygiene Products UK). The ads (running in magazines, on packaging and on line) gave the reader the chance to win £100 worth of Stella McCartney underwear. Stella McCartney Ltd argued that the ads were denigratory, misleading by suggesting an endorsement of the product by the underwear brand, took unfair advantage of the brand, and did not make it clear that the brand had no association with Bodyform.

Lego fails to build a convincing case at the ECJ

Simeon Newman — Wed, 22 Sep 2010 12:39:46 -0500

On September 14, the European Court of Justice rejected an appeal by Danish toy company Lego against a ruling by the Court of First Instance in 2008. Lego had previously sought to register its iconic 3-D studded brick as a trade mark. The 3-D studded brick featured prominently in Santander’s UK rebranding television campaign which began earlier this year. Registration had been granted to Lego by the European trade mark office in 1999 but it was subsequently overturned in 2004 following an appeal by Canadian rival Mega Brands. The ECJ ruled that the iconic 3-D studded brick cannot be registered as a trade mark as the "shape merely incorporates a technical solution developed by the manufacturer of the product". This would in effect grant an exclusive right to a technical solution which cannot be "freely used by all economic operators". The ECJ has restricted the prohibition to "signs which consist exclusively of the shape of goods which is necessary to obtain a technical result". The ECJ has stated that Lego may be able to protect the iconic 2x4 studded brick by using unfair competition laws to object to copies. Advertisers should also be warned that as with most iconic toy manufacturers, Lego fiercely protects its copyright in the design of its product and therefore clearance for use in advertising is advised.

Saucy Ice Cream Ads Once Again Frozen by the ASA

Huw Morris — Mon, 20 Sep 2010 13:52:47 -0500

In the same week that the Pope visited the UK, the ASA banned an ad it deemed could be offensive to some Roman Catholics. The ad, for Antonio Federici ice-cream, which ran in Grazia and The Lady magazines earlier this year, featured an obviously pregnant nun eating Antonio Federici ice-cream alongside the words "Immaculately conceived". The strap line for the campaign was "Ice-cream is our religion". The ASA received ten complaints from readers of the magazines claiming that the ad was offensive to Christians and in particular to Catholics. In its adjudication, the ASA said that the ad breached old CAP Code s.5.1 (Decency), which states that ads "should contain nothing that is likely to cause serious or widespread offence. Particular care should be taken to avoid causing offence on the grounds of race, religion, sex, sexual orientation or disability. Compliance with the Code will be judged on the context, medium, audience, product and prevailing standards of decency".

Thus the ASA concluded that the use of such an image as the pregnant nun to advertise ice-cream, was likely to cause serious offence to readers, particularly practising Catholics. It did not matter that the ad was only placed in a small number of publications, and only a relatively small number of complaints were received, the ASA ruled that the potential for causing serious offence in breach of the Code was significant and that the ads should not run again in their current form.

In 2009, the ASA banned a similar series of ads from Antonio Federici which featured a cavorting priest and nun with the lines "Submit to temptation" and "Kiss temptation". The ice-cream company appears determined to create controversial ads, regardless of the previous adverse ASA decisions, so one wonders what their next campaign will be like. However most advertisers do not revel in the publicity of adverse adjudications and there is a danger for repeat offenders that they will be required to pre-clear all their ads for a prescribed period in the future.

When using any religious references, images or innueundo, it is always wise to seek advice and to tread carefully. An ad need not actually cause serious and widespread offence to be problematic, the potential to do so may suffice for a negative adjudication. The latest adjudication was investigated under the old CAP Code. As of 1 September 2010, the new CAP Code is in force. Please see our Ad Guide for further information about the changes to the regime.