When: June 2014
Law stated as at: 15 July 2014
Ofcom, the UK’s broadcasting and communications regulator, has issued new guidance on compliance issues relating to product placement.
Paid-for product placement in TV programmes has been permitted in the UK since February 2011. However it is subject to relatively tight restrictions under the rules in Section Nine of Ofcom’s Broadcasting Code, reflecting principles of editorial independence, distinction between advertising and editorial content, transparency of commercial arrangements and consumer protection.
The new guidance appears to reflect a desire on Ofcom’s part to clamp down on some particular emerging practices that it regards as problematic. It focuses on three key areas:
– Programmes about a product/service: A programme about say a particular holiday destination or high-street retailer is likely, says Ofcom, to test the distinction between advertising and editorial if it is funded (wholly or partly) by the organisation whose specific interests are featured.
– Success depending on use of placed products: Programmes about the creation or transformation of people, places or things (eg makeover and cookery programmes) need to “avoid the impression that success is dependent on the use of a placed product”.
– Identifying generic/unbranded placement: Placed products that do not carry discernible branding – such as clothing or furniture – should only be identified during editorial if “identification is integrated into the programme’s narrative”.
Why this matters:
Perhaps because the UK regime is so restrictive in this area, the market for product placement has not taken off in a big way – to the extent that Ofcom describes it even now as “still nascent”. The new guidance does not change the position under the Broadcasting Code, but rather applies the Code’s rules to some particular situations. It therefore brings some clarity to a few areas where there was arguably some potential ambiguity, but it is unlikely to stimulate growth in the product placement market.
Certainly, anyone hoping for guidance that would help to open up the market for so-called “branded content” on TV would be disappointed by Ofcom’s stance here. Advertiser-funded programming (AFP) on TV remains technically possible in the UK, but the scope of what is permissible from a regulatory perspective has always been somewhat limited. This new guidance if anything seeks to limit that scope further, and it does not offer any suggestion that Ofcom is interested in encouraging commercial funding of this nature.
The Ofcom guidance can be found at pages 8 to 12 of Broadcast Bulletin, Issue 255.