As the ASA’s interpretation of the “Motoring” section of the British Code of Advertising becomes ever more restrictive, whatever happened to free commercial speech?
Who: Honda UK Li Who: Honda UK Limited
When: February 2002
Where: The Advertising Standards Authority London
After a long run of "complaint upheld" findings by the Advertising Standards Authority in respect of car ads allegedly encouraging irresponsible driving, when it was Honda's turn to defend their advertising they bucked the trend and won a "complaint not upheld" verdict.
The theme of the advertisement was the superiority of the advertised Honda model over all cars in the "GTi" car category. The headline was "Bye Bye GTi". The visual was a shot of the Honda in stationary mode. At the bottom of the advert appeared certain specification information viz "race-tuned suspension, 200PS, 0-62 in 6.8 seconds, 6 speed gear box….". As with the numerous previous cases in this category, the complaint was that the advertisement placed undue emphasis on speed.
Honda put forward an eloquent case for the defence. They submitted that the specification claims merely "supported the capabilities" of the car rather than dramatised its speed. They emphasised the fact that the car was shown in stationary mode, with no special effects used to indicate speed, and they propounded that rather than suggesting a fast, irresponsible passing-out movement, the headline was innocuously suggesting that the Honda would dominate the GTi category. Finally, in what was perhaps their most telling gambit, Honda insisted that they were a socially responsible company. They said they offered free professional driving instructions with every vehicle bought, to help new owners drive their cars intelligently and expertly. The ASA were taken with these arguments and rejected the complaint. They were particularly persuaded by the stationary image of the car and the location of the performance specifications at the bottom of the advertisement, instead of in a prominent position. Presenting the data in this way, it appeared, persuaded the ASA that the advert was merely "providing general information about the capabilities of the car" as opposed to over-stressing the car's speed.
Why this matters:
How have we got to a position where a product whose whole raison d'etre is to move from A to B, can only safely be shown in print advertising in a stationary position? And if data regarding the speed of the vehicle, its top speed or its rate of acceleration, is only permitted if it is provided as "general information about the capabilities of the car" is the only compliant way to achieve this to relegate this information to small print at the bottom of the ad?
The story started in 1996. Under pressure from the vociferous green lobby, the European Car Manufacturers' Association agreed a "resolution". This committed members to promote energy efficiency in their marketing. It also ominously stated: "conversely the concepts of power, acceleration and maximum speed will not be used as a major sales argument." At the time the European Association of Advertising Agencies warned that this might unnecessarily and unfairly restrict creative treatments, but nobody was listening. By 1998 only strong industry lobbying warded off a UK Government threat to use its six month EU council presidency to force through an EU wide car ad code. If it had been adopted, this would have seen to it that car manufacturers ran and financed EU governments' road safety campaigns for them by making ads that encouraged responsible driving at every opportunity.
This was not the end of the story, however. In 1999, there were calls in Germany for a total ban on all European car ads on the basis that all car transport was dangerous. In the same year, the UK's own British Code of Advertising underwent a revamp. The 1999 edition featured a new section devoted to "Motoring". These are the rules under which motor manufacturers labour today. Under the code, neither speed nor acceleration can be the predominant message and speed is not to be mentioned in any way which "encourages irresponsible driving". Data about a vehicle's performance, such as acceleration and "mid-range statistics", braking power, roadholding and top speed is acceptable, but only if it is presented as "general information".
Slowly but surely these provisions have been applied increasingly restrictively, so that today, it appears that the only safe way to portray a car in a print advertisement is to show it parked. Any data which might possibly indicate the speed or acceleration of which a car is capable has to be whispered in small print at the bottom of the ad.
If ever there were a case for the application of the free commercial speech provisions of the Human Rights Act surely this is it. Who will be the first car manufacturer to start the fight back?