Who: Protein World and the Advertising Standards Authority
When: April 2015
Law stated as at: 6 May 2015
The storm in a protein shaker
Five words and one picture was all it took to launch what has arguably been the most controversial and the most talked about ad of the year. For anyone who hasn’t yet heard about the Protein World ad, the ad was launched at the beginning of April and featured a model in a bikini accompanied by the slogan “Are you beach body ready?” Members of the public were quick to react, with many expressing outrage at what has been described as the “body shaming” attitude of the ad.
Not only did the ad spawn demonstrations and multiple anti-campaigns by offended consumers and even acts of vandalism on the existing ad posters, but it has also spawned parody campaigns by other advertisers (see more on this below).
The ad is now reportedly being investigated by the ASA due to the number of complaints that have been made (could this perhaps challenge Paddy Power as the most complained about ad of the year?) and the ad has been removed, although this only appears to be because the ad’s media run had come to an end, as opposed to the ad being banned by the ASA (as reported in some articles).
The (first?) ASA ruling
Protein World first crossed the path of the ASA even before their controversial poster campaign had launched. A total of nine separate claims were made against Protein World and each one was upheld following investigation by the ASA. Six of these related to the claims of health advantages and the efficacy of different products on Protein World’s website, one related to the inclusion of a ‘novel food’ in one of the products and the remaining two related to a modelling competition being run by the advertiser.
Health and efficacy
One of the most interesting considerations to have arisen from this investigation was the ASA’s finding that three of the products’ brand names were, in fact, health claims in and of themselves, namely; Slender Blend, Fat Melter and Lean Muscle. The claims made in relation to each of the products were not authorised on the EU Register of Nutrition and Health Claims made on Foods and were, therefore, found to be in breach of the Code.
Entrants of the competition had posted ‘before and after’ pictures and pictures of only their body or face. ‘Before and after’ pictures are prohibited under guidance issued by the Department of Health and the ASA held that such photos constituted health claims which implied a rate or amount of weight loss and, therefore, concluded that the sales promotion was in breach of the Code. Both types of entry were, in fact, contrary to the Terms and conditions of the competition, however, Protein World failed to administer the competition fairly by removing such photos. For this reason the promotion was again deemed contrary to the Code.
Why this matters:
There are quite a few takeaway points that have arisen as a result of the Protein World debacle:
This ad has sparked a number of parody campaigns, for example, Carlsberg’s ‘Are you beer body ready?’ campaign and even a parody of a parody in the fake Dove campaign ‘Yes. We are beach body ready’ that was created by an imaginative satirist. This is one of the most substantial uses of parody ads since the Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 (the “Regulation”) came into force on 1 October 2014. The Regulation allows ‘fair dealing’ with a copyright protected work for the purposes of parody (for a more detailed discussion of the Regulation, see the MarketingLaw.co.uk article on this topic here). It is difficult to say if the original ad contains any genuinely copyright protected work, but any arguments of possible infringement by the parody campaigns are unlikely to be viable given the permitted act of parodying under the recent Regulation.
Companies need to think pro-actively when choosing their product names. As the ASA adjudication confirms, the product name can exist as a standalone claim. Companies will need to consider this during the product development stage in order to avoid spending large amounts of time and money developing a product name, only to realise that the name is an advertising or health claim that cannot be substantiated.
The ASA adjudication should also serve as a reminder to promoters that simply prohibiting certain acts in the promotion terms and conditions will not always be sufficient to show that you have run the promotion fairly and in accordance with the Code. Anytime a promotion is being run, particular consideration should be given to section 8 of the Code, which deals with Sales Promotions.
In the Protein World decision, the ASA penalised Protein World for acting contrary to rule 8.2 which requires promoters to conduct promotions equitably, promptly and efficiently. It was the view of the ASA that simply prohibiting ‘before and after’ photos and ‘body or face only’ photos in the terms and conditions was not sufficient compliance with the Code and that further steps should have been taken to ensure fair administration of the promotion in accordance with the Code.
All in all this has already been a fairly landmark piece of advertising and it is safe to assume that there will be a second ASA adjudication in the near future, with more food for thought.