Topic: Comparative
Who: Clearcast, Sodastream
Where: UK
When: November 2012
Law stated as at: 8 January 2013
What happened:
Our December update missed out on reporting two separate November 2012 developments relating to Clearcast, the UK pre-vetting body for TV ads.
First, after over two years’ absence, Clearcast’s “Notes of Guidance” were finally re-published in a new, amended form.
Secondly, Clearcast decided to ban a Sodastream ad for denigrating the bottled drinks market, a decision that drew significant criticism in the trade and national press. The ad, which had run successfully in dozens of other territories worldwide – including during the Superbowl in the USA – shows various individuals using a Sodastream machine to make their own fizzy drinks. Every time the machine’s button is pressed in the ad, rows of plastic bottles vanish – with their liquid contents pouring onto the ground. Clearcast refused to clear the ad for broadcast on the basis that it amounted to “denigration of the bottled drinks market”.
Why this matters:
Clearcast withdrew its previous Notes of Guidance on 1 September 2010 when the current BCAP Code first came into force, but much of the previous guidance has been carried forward into the new document. The new version reproduces the BCAP Code (the UK Code of Broadcast Advertising), with Clearcast’s guidance notes included in-line after the Code sections to which they relate.
While the Notes are described as Clearcast’s “interpretation” of the BCAP Code, there are some areas where that “interpretation” could be seen as materially adding to or changing the substance of the Code provision. And of course, while the Notes of Guidance are not endorsed by the ASA, any advertiser who wants to get their ad aired on TV in the UK may struggle to do so if the ad does not comply with Clearcast’s interpretation.
The Sodastream ad is a case in point. The BCAP Code states:
3.42 Advertisements must not discredit or denigrate another product, advertiser or ad or a trade mark, trade name or other distinguishing mark.
However Clearcast guidance goes further, stating:
As a general rule the principal purpose of an ad should be to promote the advertiser’s goods or services, not to damage the reputation of other advertisers… …Advertisements whose function or effect is to denigrate competitors are not acceptable even if the comparative claims are true. Clearcast is likely to reject advertisements of this nature.
The BCAP rules clearly relate to denigration of specific competitors or their products/marks, but Clearcast interprets its own guidance as prohibiting denigration of whole product categories.
Advertisers and agencies need to be alive to Clearcast’s particular requirements, and to bear in mind that these can be more stringent than the position purely under the BCAP Code.
The new Clearcast Notes of Guidance can be found here. See the Sodastream ad here.
