Examination of Witnesses (Question Numbers
520-541)
MR GUY
PARKER AND
MS KATE
STROSS
2 JULY 2009
Q520 Jim Dowd: We come to the thorny
question of age. Part of the code is that advertising must not
appeal to those under 18. What devices are in place to ensure
that an advertisement can legitimately appeal to an 18 year-old
but not a 17 year-old?
Mr Parker: There are the scheduling
placement rules we talked about and the content rules. A good
example of one of the content rules applicable in this area is
that people who feature in alcohol ads should not be under 25,
nor should they look under 25.
Q521 Jim Dowd: Who judges that?
Mr Parker: Ultimately, the ASA
council will take a decision on whether or not they think someone
looks under 25. It is easy to find out whether or not they are
under 25; the judgment about whether they look under 25 is obviously
a subjective one. But a lot of the judgments that we have a responsibility
to make in all spheres of advertising are subjective. The straightforward
question of whether or not an ad is likely to cause serious or
widespread offence is ultimately a subjective judgment, so we
have a lot of experience of doing that. I think that is a good
example of a rule set at a very high level to make sure that people
in alcohol ads who drink, participate or play a central part in
them are not individuals who some may think are under 18.
Q522 Jim Dowd: To be certain that
is the case you have to set the threshold a lot higher, would
you not? If you used pensioners with zimmer frames and things
like that it would be obvious they were not 25. To be certain
you would have to set it a good deal higher than 25 given it is
a subjective judgment.
Mr Parker: We think that the seven-year
gap is sufficient and allows us to take the right decisions. We
do not receive many complaints about the ages of people featured
in alcohol ads; when we do they are ads that depict family occasions
when there are children who do not play a central role in the
ad and obviously are not shown drinking. I do not think there
is a general concern that that rule is set at the wrong level.
Q523 Chairman: We have all been through
this. When you were 14, 15 or 16 did you not aspire to be 18,
19 or 20? In adolescence you want to be old; when you get to my
age you want to be younger. I listened to the arguments about
age and advertising throughout the debates we had on tobacco.
With all respect to you, the idea that somebody aged 16 or 17
does not aspire to be a bit older at that time is unrealistic.
Mr Parker: I am sure that is true
of a lot of the under-18s.
Q524 Chairman: What does the code
mean?
Mr Parker: The system is there
to make sure that ads comply with the rules and that advertising
is responsible and targeted appropriately. I do not think you
can draw a link between the fact a lot of under-18s may aspire
to be and behave older and the ASA CAP regime for regulating alcohol
ads. We are there to make sure that the ads comply with the rules
and CAP and BCAP are in the process of looking at whether or not
to change those rules taking into account the evidence out there.
I believe that is the right way for things to be at the moment.
Q525 Chairman: That is how the system
works. Is it the case that you cannot fix rules in this area and
it is very likely that rules that are fixed for 18 year-olds will
attract people who are younger than 18, or do you believe that
cannot be the case?
Ms Stross: The intention behind
the rules is to protect all people who are under 18. I am sure
that in interpreting whether or not an ad complies with the rules
you would probably recognise that young people are aspirational
in the way they live their lives generally, not just in relation
to advertising. Guy has talked about the current consultation
process. The ASA and BCAP within it will arrive at a proposed
set of rules for broadcast advertising at the end of the process
that they feel is right. That proposed set of rules will go to
Ofcom which will look at the proposals that the ASA makes and
at all the evidence it has received in order to arrive at those
judgments not just in relation to alcohol but the code as a whole.
The content board of Ofcom ultimately has responsibility for approving
or otherwise the proposed code that is put in front of it some
time around the end of the year. There is almost a three-stage
process for looking at the code. The ASA and BCAP themselves have
a body called the Advertising Advisory Committee which is a lay
body whose advice they must take into account and Ofcom has final
sign-off on the code.
Q526 Chairman: Are there any examples
in the papers you gave us this morning where you have rejected
it on the basis that the ad would appeal to somebody under 18?
Mr Parker: There are four or five.
Chairman: It would be nice to have comparators
showing what would and would not appeal to somebody under 18 years
of age.
Q527 Dr Taylor: A specific example
of a controversial marketing campaign is Lambrini. We are told
that last December the Committee of Advertising Practice advised
against the use of Coleen Rooney because she was obviously under
25. Do you regard that as one of your successes or is the CAP
entirely separate from you?
Mr Parker: That is the CAP copy
advice team to which I alluded earlier. I have been referring
to it as the copy advice team. I understand that that team was
in discussion with Halewood International about that.
Q528 Dr Taylor: To get rid of Coleen
Rooney from these actual ads is one of your successes?
Mr Parker: She could not have
appeared legitimately in ads.
Q529 Dr Taylor: You said that the
codes did not cover sponsorship. Is that why the firm immediately
transferred her appearances and advertised the sponsoring of her
ITV television show?
Ms Stross: That comes to Ofcom
because we regulate sponsorship on television. The rules on sponsorship
are in effect the same as those that apply to advertising, so
she could not have been involved in the sponsorship of a programme
herself within a sponsorship credit because she is under 25. You
could not have seen her in what we call the sponsorship break
bumpers that sit in front of and behind a programme to show that
it is sponsored. One must then look at the nature of the programme
being sponsored by an alcohol brand. The programme Lambrini is
sponsoring is not one that in our judgment is of particular appeal
to young people. It appears post-watershed and it is a chat show.
I do not believe it is targeted at the under-18s. Whilst she may
be hosting the chat show what you cannot do within the programme
is make promotional references to the sponsor in any way. That
is absolutely against the sponsorship rules.
Q530 Dr Taylor: That is within the
programme?
Ms Stross: Yes.
Q531 Dr Taylor: But we have been
given an example of an advertisement for the programme which at
the top says "Lambrini sponsors Coleen's Real Women"
with a nice picture of her. Then it goes on, "Lambrini is
the number one wine style drink in the UK. A bottle of Lambrini
is sold every second. Stock up now!" with big pictures of
Lambrini bottles underneath. In the tiniest print at the bottom
we see, "Please drink Lambrini responsibly."
Ms Stross: I am not familiar with
that particular use but I do not think that is on television because
you would not be allowed to use a selling message like that within
television sponsorship.
Q532 Chairman: If we are told that
people under 25 should not be used for advertising alcohol what
does this mean?
Mr Parker: We looked into this
issue yesterday having had relatively short notice that we might
be questioned on it. There is a limit to the amount we have been
able to find out in the past 24 hours. We do not believe that
any Lambrini ads referring to the sponsorship of the programme,
which I believe is called Coleen's Real Women, have appeared
in the media that are subject to the codes. I cannot say for sure
but from the readout it looks and sounds like trade PR on the
website perhaps and is aimed at retailers that might be deciding
what to stock and what not to stock. If the remit of the system
is extended further to cover more online maybe this sort of thing
would fall under the rules, but it does not at the moment. Were
there to be a poster ad in pay for space or a print ad along the
lines you suggest certainly we would want to take a very careful
look at it.
Q533 Dr Taylor: We would ask you
to look into this because on the face of it if this sort of thing
is around it makes a mockery of the regulations. Clearcast told
Lambrini that its strapline "Lambrini girls just wanna have
fun" was unacceptable and had to be changed. We are told
that that strapline still appears in a variety of places: 10 to
30-second TV ads, tube posters and on Blackpool trams, bus ends
and taxi wraps and there was no mention of it being banned in
2007. We are told that that strapline still appears although it
was meant to be banned.
Ms Stross: If Clearcast who are
pre-vetting the content of television advertising have said that
a strapline is not acceptable it absolutely should not be on television—end
of story. I cannot speak for the other non-broadcast media, but
Clearcast pre-vets and if it says an ad contravenes the code no
broadcaster will schedule that ad.
Q534 Dr Taylor: Again, does it not
make a mockery of the system? If these things still appear and
advertisers are breaking this rule what punishment should be handed
down? Do you have any punishments available?
Mr Parker: We talked a little
earlier about sanctions, but it sounds from what you said that
it is more non-broadcast than broadcast. I am afraid I do not
know anything about the situation. I must look into it and get
back to you, which I would be happy to do.
Q535 Dr Taylor: Are we just touching
the tip of the iceberg? Are there lots of other controversial
marketing campaigns that do not come before you and you do not
spot?
Mr Parker: I do not think that
is the case. I can comment only on the marketing communications
that are subject to our codes because that is what we seek to
regulate and make sure it is responsible and complies with the
rules. I just refer back to the comments I made about our compliance
surveys that cover all media we regulate. Those have consistently
shown there is not a general problem with non-compliance. There
are specific concerns we pick up and address. The 2006 compliance
rate of 95% was at the lower end of what we considered acceptable
and caused us to respond. I do not believe there is a general
problem with advertisers flouting the rules.
Q536 Dr Taylor: We could ask you
to look into those two particular aspects and get back to us.
Ms Stross: Yes.
Chairman: I understand that one of the
straplines to which we have referred is not being broadcast but
is streamed on the website.
Jim Dowd: It is a narrowcast.
Q537 Dr Taylor: Is there any control
over what can be streamed on the website?
Mr Parker: That is precisely what
the industry is looking into at the moment in terms of extending
the remit. It is because of concerns that there is a remit gap
that that is being done amongst others. We also receive a lot
of complaints from members of the public about the content of
companies' own websites. A lot of them do not understand when
we write back why it is not subject to the codes because as far
as they are concerned it is advertising. We are hopeful that soon
there will be good news on this front and the rules will be applied
further in the digital area and will capture this sort of thing.
Q538 Dr Taylor: At the moment there
is no control over what goes on a website and you think there
could be in future?
Mr Parker: There is not an absence
of any control because paid for space online like banner ads,
popups, skyscrapers and such formats are subject to the rules
and have been since the internet became popular, but the actual
content of companies' own websites has not been subject to the
rules and it is to the marketing communications in that space
that the industry is currently considering extending the rules.
Q539 Jim Dowd: You say that you can
institute controls but these are only by consent. Technically,
you cannot institute physical controls. What happens if one advertiser
says it will not do it? What sanction is there against the advertiser
pulling out of the ASA regime altogether?
Mr Parker: You cannot opt in or
out of the regime; it is not voluntary. The industry funds it
and if it thought there was no point to it presumably it would
pull the plug and the ASA would cease to exist and something else
would have to take its place. Compliance with the rules is not
voluntary. There are various sanctions to which I have alluded
that we could and would seek to bring to bear. One matter that
the industry group is looking at in the context of extending the
remit is exactly the point to which you allude. What sort of enforcement
action can be brought to bear? In the vast majority of cases there
are pretty powerful sanctions that could be brought to bear. In
the area of truthfulness, misleading content and comparisons,
which covers a huge number of the issues that we deal with on
a daily basis, the OFT acts ostensibly as a backstop. If we run
into trouble with a company because it is persistently or flagrantly
breaching the rules we will refer it to the OFT and it can take
action under the Consumer Protection Regulations. On the broadcast
side we have talked about Ofcom having backstop powers. There
are other sanctions we can bring to bear in different areas. One
thing we will have to grapple with is whether we would always
be able to enforce our decisions if the remit was extended. My
view is that the benefit of extending the system significantly
further in the digital area far outweighs the risk that from time
to time there will be small companies that do not care about their
reputations and will want to flout the rules and against whom
we will find it difficult to enforce the rules. The balance has
changed greatly in the past few years in that respect and it is
now worth our doing it.
Q540 Mr Scott: I refer to two types
of campaign that are running on TV to the best of my knowledge.
One is built on the theme of socialising and presenting a particular
brand of beer as one of the lads that can engage with other blokes
in a group. Would that contravene the code? There is also an ad
for a vodka brand which says that it "releases the Super
Me. . .because when I drink it I feel I am in the know and part
of an elite group." I have never heard of the brand but that
is neither here nor there. Would those two ads contravene the
rules?
Mr Parker: I have never heard
of the last one you mention. You will understand that I cannot
give you a definitive judgment now on whether or not it is in
breach, but I can talk a little about the issues you raise. The
first example you gave involving the beer brand is an interesting
one. We considered it very carefully. The judgment we came to
in the end was that it was on the right side of the line, but
it was not an easy judgment to come to. We thought that the general
message of the campaign was about conviviality, taking part in
social occasions and rejoicing in that. We did not think the implication
of it was that if you drank the product you would go from being
a loner to someone with lots of friends. There was a good deal
of consideration and discussion about it in several ASA council
meetings because we looked at several ads. I shall be honest and
say they were not easy decisions to come to.
Q541 Chairman: Ms Stross, has the
current economic climate been tough on advertising in terms of
bringing in revenue for different organisations?
Ms Stross: Absolutely. Advertising
revenues on TV have fallen significantly. I believe that last
year they fell by about 5%. We expect TV advertising revenue to
fall by at least 15% this year and maybe a few more per cent next
year. There has been a real reduction in spending.
Chairman: I thank both of you very much.
We have had an interesting and informative session.
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