From 1 January 2005 a new code governs alcohol advertising on TV. Press commentators have suggested an Ofcom climbdown, but our analysis suggests it’s got most of what it was looking for.
Topic: Alcohol advertising
Where: Ofcom House, London
When: November 2004
Ofcom published revised rules for the advertising of alcohol on TV.
Here we will cut through the general press comment suggesting a major retreat from the initial Ofcom proposals published July 2004. Instead, we will look at the differences between old and new rules. The end result suggests the press got it mostly wrong.
The first part of the "alcoholic drinks" section of the TV Advertising Code, section 11.8, is a set of notes.
These have been completely changed. Previously the notes simply indicated which types of advertising the rules would apply to and suggested reference to the ITC rules on the amount and scheduling of advertising for details of scheduling restrictions. All this has gone.
In its place are three notes. The first says that the notes in the full text are "in general, simply clarifying the scope of the rules". It goes on to state that "additional interpretative guidance" on this new part of the Code will be produced by the Broadcast Committee of Advertising Practice, subject to public consultation and Ofcom's approval.
Two sources of Code Guidance
This underlines the fact that with the coming of the new regime for processing complaints in respect of TV advertising, we are set to have two sources of guidance as to the proper interpretation of the TV advertising code.
Up until now, the principal guidance has come from the Broadcast Advertising Clearance Centre, which pre-vets all TV advertising before it is aired on UK TV. The BACC's Notes of Guidance have been a very useful touchstone as to proper code interpretation and application for many years. Now, these will sit alongside such guidance as is produced by the Broadcast Committee of Advertising Practice. This is the sister body to the Advertising Standards Authority which is now deputed by Ofcom to maintain and give guidance as to the interpretation of the TV Advertising Code.
New note 2 says "The spirit as well as the letter of the rules in this section apply whether or not a product is shown, referred to or seen being consumed".
New note 3 states that where soft drinks are promoted as mixers, all of the rules in 11.8 apply in full except where they relate to low alcohol drinks.
Rules for all advertising
In the new "Rules for all advertising" section 11.8.1 we have lost the old "advertisements must not imply that drinking is essential to social success or acceptance or that refusal is a sign of weakness. Nor may they imply that the success of a social occasion depends on alcohol." This has been changed to:
"1) must not suggest that alcohol can contribute to an individual's popularity or confidence, or that refusal is a sign of weakness. Nor may they suggest that alcohol can enhance personal qualities.
2) advertisements must not suggest that the success of a social occasion depends on the presence or consumption of alcohol".
The old rule that ads "must not link drinking with daring, toughness, bravado, aggression or antisocial behaviour" has now lost the word "bravado".
The old "ads must not suggest that alcohol can contribute to sexual success or that drinking can enhance sexual attractiveness" has become:
"Advertisements must not link alcohol with sexual activity or success or imply that alcohol can enhance attractiveness".
The old "must not suggest that regular solitary drinking is acceptable or that drinking can overcome boredom, loneliness or other problems" has become:
"Must not suggest that solitary drinking is acceptable or that drinking can overcome problems".
The old "must not suggest that alcohol has therapeutic qualities nor offer it as a stimulant, sedative or tranquilizer. There must be no suggestion that physical or other performance may be improved by alcohol" has changed to:
"Must not suggest that alcohol has therapeutic qualities nor offer it as a stimulant, sedative, mood-changer or to boost confidence. There must be no suggestion that physical or other performance may be improved by alcohol or that it might be indispensable".
The old "ads must not suggest that a drink is to be preferred because of its alcohol content nor place undue emphasis on alcoholic strength" has survived unchanged.
The old "must not show, imply or encourage immoderate drinking. This applies both to the amount of drinking and to the way drinking is portrayed. References to buying rounds of drinks are not acceptable" has survived in much the same form, except that a completely new sub-rule has appeared which reads:
"Alcoholic drinks must be handled and served responsibly".
We also have a new helpful note in respect of references to buying repeat rounds of drinks which states:
"This does not prevent, for example, someone buying a drink for each of a group of friends. It does, however, prevent any suggestion that other members of the group will buy any further rounds".
The old "must not link drinking with the use of potentially dangerous machinery, with behaviour which would be dangerous after consuming alcohol (such as swimming) or with driving" has survived intact.
Additional rules for alcohol advertisements
The old "must not appeal particularly to people under 18" and "advertisements must not include personalities, for example, who people under 18 are likely to follow or who have particular appeal to them" have become:
"must not be likely to appeal strongly to people under 18, in particular by reflecting or being associated with youth culture" and "no-one may behave in an adolescent or juvenile way".
The "youth culture" reference follows the Ofcom report in summer 2004 which gave rise to fears that all cartoon characters and animals in alcohol ads would be swept away at a stroke. There is certainly no specific reference to cartoons or animals in the new Code, but the restriction on just "personalities" who appeal to under 18s has gone and changed to this wider and more slippery "reflecting or being associated with youth culture" prohibition.
It is unclear how this will be interpreted and applied. The industry hopes the up and coming BCAP Guidance will take a less rather than more restrictive view, but whether this means a complete reprieve for cartoons and animals remains to be seen. In light of the Government's wide ranging national health improvement strategy heralded in the recent "Choosing health" White Paper, which makes great play of these new Ofcom rules, a cautious approach may be the best policy for TV alcohol advertisers for the present.
The old "anyone associated with drinking must be, and must look, at least 25 years old" has changed to:
"No-one who is, or appears to be, under 25 years old may play a significant role in advertisements for alcoholic drinks."
A completely new note deals with an exception to the rule about children not being seen or heard and under 25s not playing a significant role etc. This states:
"There is an exception for advertisements in which families are socialising responsibly. In these circumstances, children may be included but they, and anyone who is, or appears to be, under 25 must only have an incidental role. Nevertheless, it must be explicitly clear that anyone who appears to be under the age of 18 is not drinking alcohol".
The old "must not be advertised in a context of aggressive or antisocial behaviour" has been changed to:
"Must not show, imply or refer to daring, toughness, aggression or unruly, irresponsible or antisocial behaviour".
The old "must not publicise sales promotions entailing multiple purchase which appear to encourage excessive consumption" has become:
"Must not appear to encourage irresponsible consumption".
The old "must not normally show alcohol being drunk in a working environment" has survived unscathed.
Finally, there is a completely new rule as follows:
"Alcoholic drinks must not be advertised in the context of sexual activity or seduction but may include romance and flirtation subject to 11.8.2(a) (youth appeal)".
The low alcohol drinks provisions remain the same as before.
Why this matters:
It is right to say that some of the earlier proposals have fallen by the wayside, no doubt as a result of heavy lobbying on behalf of the industry.
The casualties are:
"Ads must not suggest that drinking alcohol is a sign of maturity, masculinity, femininity etc.".
"Ads may not imply that drinking is an essential part of daily routine".
"Ads may not suggest that anyone might find drinking alcohol irresistible".
"Alcoholic drinks must not be presented as other than a mature, adult pleasure and the style and content of advertisements must reflect this".
"Note: particular care is needed with sales promotions entailing multiple purchase".
And that is about it in terms of the Ofcom proposals which were not in the event adopted. Some might say, therefore, that much of the recent press comment in terms of presenting the Ofcom final code as a major retreat from its earlier proposals was quite misguided and gave a misleading indication as to the substantial changes that were eventually made.
In terms of timing, the new rules will apply from January 1, 2005, except that for advertising that is already in production there will be a period of grace until 30 September 2005. We will also await with interest the new BCAP Guidance.