Crossing the line
What may seem clever to some, may be downright offensive to others – and those others are likely to cause some clients problems by complaining to the Advertising Standards Complaints Board. Wendy Duggan surveys some of the Board’s decisions
The Advertising Codes (Codes) published by the Advertising Standards Association (ASA) and upheld by the Advertising Standards Complaints Board (Board), take an ethical stance towards advertising content, rather than a purely legalistic one. The Codes are wide-ranging in nature and have broad scope for interpretation of their meaning, as the following examples illustrate.
The Code of Ethics
The Code of Ethics overlaps with the Fair Trading Act 1986 (FTA). Its Basic Principle 3 provides that “No advertisement should be misleading or deceptive or likely to mislead or deceive the consumer”. In addition, however, advertising must be ‘ethically’ acceptable, with Basic Principle 4 of the Code providing that “All advertisements should be prepared with a due sense of social responsibility to consumers and to society”.
Under the Code of Ethics, advertising must not breach, among other things, truthful presentation (Rule 2), and wording must not offend against values of decency (Rule 4), or give offence (Rule 5), exploit superstitions or play on fear (Rule 6), contain violence (Rule 7), or breach personal privacy, or purport, without permission, to be endorsed by any person (Rule 10) or, except where socially justifiable, present dangerous or illegal practices in disregard for safety (Rule 12).
Wording which is likely to offend values of decency is somewhat subjective and sometimes difficult to assess.
Truthful presentation – Rule 2
In Mercedes Benz New Zealand Limited (8 April 2008, No 08/049), a complaint was upheld about the wording of a television advertisement for a Mercedes Benz. The voiceover and tagline advised: “This summer own any Mercedes Benz for 1.5% of its drive-away price per month”. In small print at the bottom of the screen it read: “Financial terms and conditions apply – contact your authorised Mercedes Benz Dealership or visit www.mercedes-benz.co.nz for details”.
The Board held the small print “Financial terms and conditions apply” was insufficient to justify the claim, “1.5% of the drive-away price”. It also considered relevant the non-disclosure of other factors necessary to meet the drive-away price: a 25 per cent deposit, 36 months to pay, and a final payment. (The minority disagreed, stating that any viewer within the targeted market for a vehicle of this quality would be aware there would be additional financial requirements.)
Offensiveness and violence – Rules 4 and 7
A complaint was made about alleged condoning of acts of violence in the advertising by Sky Network Ltd in its SKY Sport The Magazine (29 January 2008, No 08/050). References in the advertisement included: “If you want to drive like a maniac, beat someone up, chuck spears, fire guns … shower naked with a group of men you can, just tell them it’s sport. December Sky Sport. The magazine. Out now.”
The Board was of the view that this content was “extreme hyperbole of a nature that was acceptable in the context and for the product offered and was not likely to cause serious or widespread offence”. The complaint was not upheld.
It is the context of the advertising which needs to be considered in regard to the Code of Ethics; ie the market targeted, the nature and age of likely readers or viewers, and the timing and placement of the advertising.
Decency and safety – Rules 4 and 12
In Shell New Zealand Limited (22 July 2008, No 08/371), a complaint was made about a television advertisement for Shell V Power: “the fuel we’ve developed with Ferrari”. The advertisement showed a red Formula One racing car supposedly speeding along city streets. A graphic on screen said “Filmed under controlled conditions using trained professionals”.
In the complainant’s view, the advertising of racing cars on normal city roads was against social marketing, which tries to get people to reduce speeds in urban areas, and was socially irresponsible because it demonstrated a dangerous practice.
The Board considered the advertisement was extremely hyperbolic and recognisable as such – that the advertised message was that innovations in racing cars often lead to improvements in cars in general and there was a general public awareness of this. The Board found no grounds to proceed with the complaint.
Social responsibility and offensiveness – Principal 4 and Rule 5
Several complaints have been made to the Board about offensive language, including the use of the word “bloody” in advertising, including a complaint about a Mazda radio advertisement, Mazda Motors of New Zealand Limited (12 August 2008, No 08/310), which portrayed a rural setting and a disgruntled farmer saying, “Bloody queues! Bloody parking! Bloody promo girls! Bloody Field Days”, and using the phrase “Bloody terrific” in relation to a Mazda deal.
The complainant asserted the use of the word was unacceptable and offensive to advertise a vehicle or event, particularly when the advertisement could be heard by children.
Mazda responded that development of its Mazda advertising campaign was based on two earlier favourable decisions by the Board in 2007 regarding use of the word “bloody”, noting that it had since removed its advertising from metropolitan to regional programming, where the use of the word was deemed more ‘colloquially’ acceptable.
The Board considered its earlier rulings, the first of which, Mazda Motors of New Zealand Limited, (29 January 2007, No 07/032) noted the 2005 findings of the Broadcasting Standards Authority on offensive words, in which the word “bloody” came in at 22 out of 23 words surveyed – ie it was held offensive by only 17 per cent of respondents. The second ruling, Mazda Motors of New Zealand Limited (10 July 2007, No 07/225), concerned the advertising of “Bloody Terrific Field days”. The Board found the word “bloody” was used to emphasise the word “terrific”, which was slang commonly used, and as it was used colloquially, its use was acceptable. It held that, in light of the context, medium, audience, and product, the advertisement was unlikely to cause serious offence.
In the recent decision, however, the Board noted the word “bloody” had been repeated six times in a 30-second radio advertisement, and only twice in combination with the word “terrific”. It held the advertisement “exploited” the leeway given in previous decisions and contained unwarranted repetition of the word, thereby crossing the threshold to cause serious and widespread offence. The complaint was upheld.
Code for Advertising Liquor
The Code for Advertising Liquor contains Guidelines and Principles which require social responsibility in advertising liquor, including not depicting liquor consumption in hazardous situations, nor offering vehicles or boats as prizes, directing advertising at adults not minors, and not using identifiable heroes or heroines of the young.
The Guidelines include indications that wording in liquor advertising shall not:
• emphasise a product’s alcoholic strength – unless it is light;
• glamorise liquor or encourage immoderate consumption;
• have special appeal to minors (eg by way of designs, motifs, cartoon characters);
• lead to confusion with confectionary or soft drinks, or draw any association with drugs;
• depict or imply aggressive or offensive behaviour, or that liquor will create a desirable change in mood or social environment; or
• be sexually provocative or suggestive.
Prohibition against offering vehicle and boat prizes – Principle 3.2
In Panache Imports – VNC Cocktails (4 March 2008, No 08/002), a complaint was made about the online advertising of Panache Imports promoting cocktails which included an offer to “Register to Win a 2008 Porsche Boxter for a year”. The Advertiser asserted the promotion only had six weeks to run and was only accessible by website.
The Board noted that its jurisdiction covered website advertising, and held that the advertising was in breach of the prohibition against advertising vehicles.
Requirement for social responsibility – Principle 2
In Delegate’s Wine Estate (4 March 2008, No 08/041), a complaint was made about the print advertising of Oyster Bay wine. The wording complained about was: “Sometimes you can have a hell of a day and still have a hell of a night”; the complainant asserting the words “a hell of a night” suggested an intensively pleasantly memorable night – and was accordingly against the guideline prohibiting advertising of liquor in a way to suggest it will create a desirable change in mood or social environment (Principle 2(c)).
The advertiser submitted the words “hell of a day” and “hell of a night” stood outside the consumption of wine in the advertisement, and were simply statements of fact – that anyone could have a bad day at work, but still enjoy his or her evening, independent of any consumption of alcohol.
The Board considered that the wording “hell of a night” used with the imagery (a woman smiling while having a bad day and a woman laughing having “a hell of a night”) crossed the line to suggest liquor created a desirable change in mood and the complaint was upheld.
Code for Advertising Therapeutic Products
The Code for Therapeutic Products is under reform. The current Code contains ‘Principles’ and ‘Requirements’. The Principles include that advertising claims must comply with the laws of New Zealand, be truthful, balanced, not misleading, must have been substantiated, and must observe a high standard of social responsibility.
It is wise therefore to ensure that any therapeutic use claims for products in advertising have been substantiated. The Requirements (taken from the Researched Medicines Industry Association of New Zealand Code of Practice are very specific.
The definition of “therapeutic use” in the Code includes use in, or in connection with, “preventing, diagnosing, curing or alleviating a disease, ailment, defect or injury in humans; influencing, inhibiting or modifying a physiological process in humans”. Many ‘natural health’ products claim in advertising to be capable of “curing or alleviating” a “defect or injury in humans”.
The definition of “therapeutic purpose” under the Medicines Act 1981 includes, among other things, “treating or preventing disease” and “altering the shape, structure, size or weight of the human body”. Many natural health weight management products claim to alter the shape, structure, size, or weight of the body, and are likely to come under this Code.
If advertising for a product includes any therapeutic use claim, the wording will need to take account of this Code, and the advertising provisions of the Medicines Act 1981 and the Medicines Regulations 1984 (which apply to such advertising until their proposed repeal). The Therapeutic Products Code provides that testimonials about products covered by the Medicines Act are effectively prohibited by that Act, so extreme care must be taken with the use of testimonials in advertising such products.
Advertisements to be truthful balanced and not misleading; claims to be valid and substantiated – Principle 2
On 4 March 2008, a complaint was made under the Code against the television advertising by Brand Developers Ltd of a product called Velform cream (Brand Developers Ltd, 4 March 2008, No 08/020). The advertisement contained a large number of claims about skin rejuvenation, including the wording:
• “cure defects”;
• “even scars and burn marks may fade”;
• “dreaded sunspots disappear”;
• “wrinkle free skin may now be possible”; and
• that the cream would “influence, inhibit and modify” the formation of wrinkles and the appearance of scars and sun spots.
It also included visual claims showing “before and after” images of product users.
The complainant asserted unless these claims could be substantiated, the advertising should be “pulled off air”.
The Board held that, through the use of visual images and repetitive claims, the advertisement presented the product as having a therapeutic property, and therefore came under the Therapeutics Products Code. It acknowledged that cosmetic products advertising often contains puffery, but considered the Velform cream advertisement went further in claiming to “cure defects” and “influence, inhibit and modify’ the formation of wrinkles and the appearance of scars and sun spots, all of which were “physiological human processes”. It held that as the advertiser had not provided substantiation of its claims, the advertising was in breach of Principle 2 of the Code.
Wendy Duggan is a senior associate at Bell Gully. She can be contacted on 09 916 8989 or wendy.duggan@bellgully.com. This article is extracted from a paper presented at the 2008 LexisNexis Fair Trading Act, Advertising and Marketing Law conference.
NZLawyer, issue 105, 5 February 2009