On the eve of a Government consultation on whether to liberalise UK TV product placement controls, the idea has been apparently squashed by … er.. the Government. Shades of the nuclear power consultation that had to be repeated? Carla Basso reports.
Topic: Product Placement
Who: Secretary of State Andy Burnham
When: 11 June 2008
Law stated as at: 24 June 2008
Product placement has been barred from UK programming since the earliest days of commercial television. Under the current Ofcom Code, there must be a clear distinction between programmes and advertisements, and programmes must not refer to the use or appearance of any product or service. As a result, product placement is, effectively, prohibited.
However, all of this may change as a result of the Audio Visual Media Services Directive, which came into force at an EU level on 19th December 2007, and which must be implemented into UK law within two years.
Within the Directive, the Commission appeared to recognise and acknowledge that product placement was a common reality for consumers as a result of viewing films, and US import television, and they took on board that (at a time when revenues for traditional spot advertising are declining due to fragmenting television audiences) product placement could be a welcome source of new revenue for programme makers and broadcasters.
The result is a new approach to product placement set out in Article 3g of the Directive. The drafting of this section seems counter-intuitive, but essentially product placement is expressly prohibited, although it is allowed in certain programming unless a Member State decides otherwise – namely: cinematographic works, films and series made for audiovisual media services, sports programmes and light entertainment programmes. Children's programming is never allowed to contain product placement.
Programmes that do contain product placement would have to meet the following requirements:
- The content (and for television broadcasting, the scheduling) must not be influenced in such a way as to affect the editorial independence of the media services provider;
- There should be no direct calls to buy – e.g. by making special promotional references to the goods/services;
- No undue prominence should be given to the product; and
- Viewers should be clearly informed of the existence of the product placement by appropriate identification at the start of the programme, at the end, and when the programme resumes after the commercial break, in order to avoid viewer confusion.
Which all looked like a promising liberalisation of the current regime… or so everyone thought. Cue our Secretary of State Andy Burnham who recently announced in his 11th June speech at the Convergence Think Tank:
"I can see the arguments and benefits of product placement and understand why people feel it is an inevitability given the pressures they are under. But applying the same test, I can also see the cost and the very high costs that might be paid in the long term. I feel there is a risk that product placement exacerbates this decline in trust and contaminates our programmes. There is a risk that, at the very moment when television needs to do all it can to show it can be trusted, that we elide the distinction between programmes and adverts."
In case any doubts remained about where he stood on these issues, Mr. Burnham added that there are "some lines that we should not cross – one of which is that you can buy the space between the programmes on commercial channels, but not the space within them."
So does this signal the end for product placement in UK programming?
Technically, no. DCMS are about to open a consultation on the product placement issues in the new Directive and this must be a genuine consultation which considers all views. To be fair, even Andy Burnham has said that he is "ready to listen to the arguments on both sides". Indications are that the consultation will need to address specific issues such as:
- whether the UK actually does want to allow product placement in the permitted types of programming;
- whether it will allow it in all of them, or only some of them;
- what the notification requirements should be; and
- whether the same rules should apply to both television and video on demand services.
So it's certainly not game over just yet.
Why this matters:
The results of the consultation are not a foregone conclusion, but (particularly given the strength of views outlined by the Secretary of State) it is important that companies with an interest in the introduction of reasonable and controlled product placement in the UK take an active part in this consultation process, and put forward their detailed views for consideration. Don't let Andy Burnham decide this one for you.
Consultation groundhog day?
The Minister may also have been reminded that in another context, this administration has gone this way before. The consultation was on a new generation of nuclear power stations and there were again premature noises of total support for the proposal at the highest government levels, way before the consultation period had expired.
As a result, green groups used judicial review procedures to force the scrapping of the first consultation and an expensive and time consuming re-run.
In this case of course, the pronouncement has been made even before the relevant consultation has started, but this is arguably good news for the Rt Hon A Burnham. At least he has the chance to save this consultation exercise by taking an early opportunity to publicly retract his statements before the DCMS goes into full consultation mode. Over to you, Minister.