Health Committee - The Government's Alcohol StrategyWritten evidence from Ofcom (GAS 55)

Introduction

1.1 Ofcom welcomes this opportunity to submit evidence to the House of Commons Health Committee’s inquiry into the Government’s Alcohol Strategy, published in March 2012.

1.2 Ofcom is the UK regulator of the communications industries, with responsibilities across television, radio, telecommunications and wireless communications services. Ofcom was established on 29 December 2003 and replaced the Independent Television Commission (ITC), the Radio Authority, the Broadcasting Standards Commission, Oftel and the Radio Communications Agency.

1.3 This submission sets out the background to the regulation of broadcast advertising, Ofcom’s powers and duties in this area, the scheduling and content rules governing the advertising, programme sponsorship and product placement of alcohol on TV.

Powers and Duties

2.1 Ofcom has a number of duties and powers under the Communications Act 2003 that are relevant when considering alcohol advertising. Ofcom’s principal duty when carrying out its functions is to further the interests of citizens and consumers in communications matters (section 3 (1) of the Act).

2.2 Ofcom is required to secure a number of objectives when carrying out its functions which include the application in the case of all television and radio services, of standards that provide adequate protection to members of the public from the inclusion of offensive and harmful material in such services (section 3 (2) of the Act).

2.3 In performing its duties, Ofcom is required in all cases to have regard to a number of statutory considerations including:

The vulnerability of children and of others whose circumstances appear to OFCOM to put them in need of special protection (section 3 (4)): (h).

2.4 Under Section 319 of the Act, Ofcom also has a duty to set, and from time to time review and revise, standards for the content of programmes to be included in television and radio services as appear to it best calculated to secure certain standards objectives. Those objectives include:

That persons under the age of eighteen are protected (section 319 (2) (a)).

2.5 The additional statutory objectives under section 319 of the Act which are relevant to alcohol advertising are:

(2 (f)): that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of offensive and harmful material;

(2 (h)): that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;

(2 (j)): that the unsuitable sponsorship of programmes included in television and radio services is prevented;

2.6 Section 319 (4) also requires Ofcom to have regard—in particular, and to such extent as appears to them to be relevant to the securing of the standards objectives, to a number of matters including:

(a) the degree of harm or offence likely to be caused by the inclusion of any particular sort of material in programmes generally, or in programmes of a particular description;

(b) the likely size and composition of the potential audience for programmes included in television and radio services generally, or in television and radio services of a particular description;

2.7 This requirement seeks to ensure that the implementation of the duties in section 319 is proportionate, following section 3 (3) of the Act which requires Ofcom, in performing its duties, to have regard in all cases, to:

(a) the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed; and

(b) any other principles appearing to Ofcom to represent the best regulatory practice.

2.8 Accordingly, Ofcom is required to act proportionately when performing its duties. This includes the setting or revising of content standards for alcohol advertising in such a way as to secure the protection of persons under 18 and the protection of any others whose circumstances appear to Ofcom to put them in need of special protection.

In addition Ofcom’s regulatory principles also require our interventions to be evidence-based in both deliberation and outcome. Ofcom’s regulatory principles1 seek to ensure that policy decisions are evidence based, drawing on market data as well as qualitative and quantitative research.

2.9 Ofcom does have powers under the Act to prohibit advertisements and forms and methods of advertising or sponsorship (whether generally or in particular circumstances) (section 321 (1) (b)).

2.10 Finally, under section 321 (6) of the Act, the Secretary of State retains the power to direct Ofcom to prohibit descriptions of advertisements that should not be included in programme services and also, forms and methods of advertising and sponsorship. Ofcom has a duty to comply with any such direction (section 321 (6)).

Background to Broadcast Advertising Co-Regulation

3.1 In October 2003 Ofcom consulted on proposals to transfer broadcast advertising content regulation to a new system to be established under the auspices of the Advertising Standards Authority (ASA). In July 2004, the Deregulation and Contracting Out Act 1994 gave effect to such an approach.

3.2 The Communications Act 2003 encourages Ofcom to consider effective forms of self-regulation for its various functions where appropriate. In 2004 Ofcom decided that the most efficient means of regulating broadcast advertising was through a co-regulatory relationship with the ASA and the Broadcast Committee for Advertising Practice, as this would:

provide a one-stop shop for advertising complaints, making it easier for the public to complain about advertising (indeed, even before the change, more people mistakenly complained to the ASA about TV advertising than to Ofcom’s predecessor, the ITC);

allow all broadcast and non-broadcast advertising (including on the internet and on phone services) to be subject to a common self-regulatory approach, under a single established body, thus providing greater clarity for consumers and scope for a more consistent policy across different forms of advertising;

encourage the advertising industry to take responsibility for its own behaviour; and

minimise duplication of resources within Ofcom and the ASA, and further the statutory objective in the Communications Act of promoting self and co-regulation where appropriate.

3.3 From November 2004, Ofcom delegated day-to-day responsibility for applying the broadcast advertising codes to the ASA. At the same time, responsibility for the TV and Radio Advertising Standards Codes was delegated to the Broadcast Committee of Advertising Practice (BCAP), the industry rule-making body, comprising advertisers, agencies and broadcast media.

3.4 Ofcom stands behind the co-regulator, and retains its statutory responsibility for the regulation of broadcast advertising under the Communications Act. BCAP can only make changes to the Codes with Ofcom’s agreement and following public consultation, having also consulted the independent Advertising Advisory Committee (AAC). Ofcom also retains responsibility for taking licence compliance action against broadcasters if advertisers fail to respond to adjudications by the ASA.

Regulation of Alcohol Advertising

Overview

4.1 One long-standing public policy objective for the regulation of TV advertising is to reduce any negative impact of alcohol advertising on children and young teenagers.

4.2 Ofcom conducts its own periodic research into the exposure of children and young people to alcohol advertising. As the Alcohol Strategy states the Government’s desire to ensure that adverts promoting alcohol are not shown during programmes of “high appeal” to young people, Ofcom has commissioned new research to assess the level of children’s exposure to alcohol advertising during programmes where large numbers of children may constitute a small proportion of viewers and are therefore not caught by the existing scheduling rules (see below). We shall share this research with Government and publish our findings in due course. In addition, we are aware of, and have in the past considered academic research presented to us on the relationship between alcohol advertising and consumption, Ofcom remains open to any new evidence that may emerge.

4.3 There are two forms of regulation for TV alcohol advertising (which also apply to programme sponsorship):

scheduling rules: where and when adverts appear on television; and

content rules: the imagery, wording and tone of the adverts.

Rules on the scheduling of alcohol advertising

4.4 Scheduling rules already limit where alcohol advertisements may appear in the schedules. Alcohol may not be advertised in or adjacent to children’s programmes or programmes commissioned for, principally directed at or likely to appeal particularly to audiences below the age of 18.

4.5 Since 1999 a system of “indexing” has helped to prevent adverts being directed at children. A programme of “particular appeal” to children is deemed to be one that attracts an audience index of 120 for this age group. If a programme attracts an under-16 audience in a proportion similar to that group’s presence in the viewing audience as a whole, it is said to index at 100. So an index of 120 is an over-representation of that group by 20%. For example, the proportion of 10–15 year olds in the viewing population is 8.24%, so any programme where more than 9.84% (8.24 x 1.2) of the audience is made up of 10–15 year olds would not be allowed to carry alcohol advertising in or around it.

4.6 In other words, if the audience for a programme is expected to contain a disproportionately large number of young people, the broadcaster cannot place alcohol adverts in or around it. This is a more targeted approach than a pre-watershed ban as it hones in on specific programmes appealing to young people regardless of what time they appear in the schedule. For example Glee is broadcast after 9pm on Sky One, but alcohol advertisements cannot be placed in or around it because of the disproportionately high number of young people watching the show.

4.7 Indexing is the standard approach used to limit children’s exposure to a variety of advertising categories. These include HFSS food and beverages, sanitary protection, gambling, condoms, certain religious matter, slimming products, medicines, vitamins and dietary supplements, matches, trailers for 18/15 certificate films, advertising for all of which is excluded in and around programmes whose audiences contain a disproportionate number of children or young people.

Rules on the content of alcohol advertising

4.8 The current rules reflect a review carried out in July 2004, when Ofcom consulted on proposals to revise Section 11.8 of the Advertising Standards Code for television advertising relating to alcoholic drinks. The decision to review the content rules was prompted by findings from research commissioned by the ITC, the ASA and the British Board of Film Classification (BBFC) into young people and alcohol. This indicated that alcohol advertising had some influence on young viewer’s attitudes towards alcohol, albeit at a relatively low level compared to other factors. The review took place against a backdrop of widespread concern (including Government concerns expressed in its Alcohol Harm Reduction Strategy) about the drinking behaviour amongst teenagers and young adults, including excessive or binge drinking or anti-social behaviour associated with drinking.

4.9 Following the consultation, new rules for television advertising came into force on 1 January 2005 with a “grace period” until 30 September 2005 for advertisers who might have already committed themselves to campaigns which might not comply with the revised rules. In tandem with this process, the Committee of Advertising Practice (CAP) amended the alcohol rules in the non-broadcast advertising Code.

4.10 In particular, the changes to the Codes sought to prevent alcohol advertising having a strong appeal to “under 18s” and, in particular, being associated with youth culture. For example a new rule in the TV Code requires that alcohol advertising “must not be likely to appeal strongly to people under 18, in particular by reflecting or being associated with youth culture”. The rules are also designed to protect vulnerable groups by preventing suggestions that alcohol can increase popularity or confidence etc. As a result of the rule changes, at least one alcohol advertising campaign that ran in Europe and the United States was banned in the UK. Details of the 2004 rules changes are given in Annex 1;2 a clean version of the current rules is shown in Annex 2.3

4.11 Ofcom did not propose to add a time based ban to the scheduling rules at the time, for two reasons. Firstly, research indicated that advertising could have a relatively small influence on young people’s attitudes to alcohol compared to other social, family and market factors and secondly because teenagers and most older children watched (and watch) a significant amount of post-watershed TV and would continue to see alcohol advertisements at these times. The existing rules, last assessed during the 2009 BCAP Advertising Code Review, seek to target those programmes of particular appeal to child audiences both before and after the watershed. This is clearly something that can and should be revisited periodically.

Assessing the impact of the updated rules

4.12 In 2007 Ofcom/ASA conducted research into the impact of the rule changes.4 The research was designed to provide general information on young people’s drinking habits and the alcohol advertising market and to assess the effect of the changes to the content rules. The report found that although TV’s share of total alcohol media expenditure fell from 61% in 2002 to 49.1% in 2006 (as outdoor, press and radio spend grew), the number of alcohol advertising spots on TV rose over the same period. This was due in part to the growth in channel numbers. However despite the increase in the number of advertisements shown on TV, the amount of advertising seen by 10–15 year olds and 24 year olds between 2002 and 2006 fell by 31.1% and 39.0% respectively.

4.13 The research also set out to measure the extent to which the 2005 changes to the alcohol advertising rules may have impacted on the appeal of alcohol for people under 18. The considerable market and cultural changes during that period (including changes in licensing laws and changes in the types of drinks consumed) meant that it was difficult to separate from other factors the impact of the advertising rule changes on young people’s attitudes and behaviour towards both alcohol and alcohol advertising. As a result the finding should be viewed with a degree of caution.

4.14 Against that background, there were some positive indications of changes in behaviour. The research found that 11–13 year olds were less likely to have drunk alcohol at all, but there was very little change in the proportion of 11–17 year olds saying they regularly drink to get drunk between the two waves of research. There was a significant fall in the proportion of 18–19 year olds regularly drinking to get drunk. The age at which it was most common for young people to report regularly drinking to get drunk was 20 to 21 years old.

4.15 In terms of perceptions, young people’s ability to recall alcohol advertising had declined (potentially linked to the reduction in their exposure to TV advertising) since the introduction of the new rules. There was no change in how much young people said they liked the adverts and there was an increase in those saying that advertisements made the drink look appealing and would encourage people to drink it. However the proportion of young people saying they felt the alcohol commercials were aimed at them had declined.

Product Placement5

4.16 In 2010, the UK Government took advantage of European legislation,6 which provides EU Member States with scope to allow product placement in specific programme genres subject to certain restrictions. However, the Government decided not to allow the product placement of alcohol, which along with a number of other product categories, remains prohibited in programmes made under UK jurisdiction.

May 2012