At last, after multiple hitches and U turns, UK Plc has finally bitten the bullet and signed off the Audiovisual Media Services (Product Placement) Regulations, legalising product placement on TV. Do the final, final rules reveal any last surprises and are they final, final? Anna Williams reviews.
Topic: Product placement
Who: Department for Culture, Media and Sport
When: 16 March 2010
Where: United Kingdom
Law stated as at: 26 March 2010
What happened:
Last month, we reported as to how the UK government recently announced its intention to create regulations under section 2 of the European Communities Act 1972 to give legal effect to the provisions of the EU Audiovisual Media Services Directive (2007/65/EC) (the "Directive") relating to product placement (see http://www.marketinglaw.co.uk/articles/2010/12708.asp).
We reported how the government intended to add a few of its own safeguards to these regulations in addition to those restrictions it is required to implement in the UK in accordance with the provisions of the Directive. The government indicated that restrictions it would place on product placement in this country would include general prohibitions against product placement in the BBC's licence-fee funded services or in current affairs, consumer and religious programming. We also reported how the government wanted to prohibit any product placement of alcoholic drinks; foods and drinks high in fat, salt or sugar; gambling; smoking accessories (such as lighters and papers); over-the-counter medicines, and infant formula and follow-on formula.
Well, the wait is over already as hot of the back of the government's announcements in February, we now have the new regulations. Earlier this month the Government enacted the Audiovisual Media Services (Product Placement) Regulations (2010/831) (the "Regulations") to amend the provisions of the Communications Act 2003. An accompanying Explanatory Memorandum was also published.
Some clarifications provided in the Regulations
There are no great surprises really – the Regulations insert amendments into the Communications Act 2003 to permit and regulate the practice of product placement in those television programmes where product placement is permitted under the Directive. To see the full text of the Regulations see http://www.opsi.gov.uk/si/si2010/pdf/uksi_20100831_en.pdf.
To provide a commentary on the Regulations above and beyond what was reported in last month's marketinglaw, some aspects of the Regulations and the Explanatory Memorandum provided by the Government worthy of reference are as follows:
1. the Regulations will come into force on 16 April 2010, but it will not be possible to take advantage of the new rules until Ofcom changes the Broadcasting Code as this currently prohibits product placement-see below;
2. product placement is only allowed in UK-made television programmes where the production start-date is after 19 December 2009;
3. the BBC will not be allowed to include product placement in its own programmes when they are made to be shown on its public service channels, but it may show cinema films and programmes acquired from other broadcasters, including the BBC's commercial enterprises such as BBC Worldwide, which include product placement;
4. it has been confirmed that for the purposes of product placement, a "children's programme" shall be considered a programme made for a television programme service or for an on-demand programme service and for viewing primarily by persons under the age of sixteen;
5. As we expected, the product placement of alcoholic drinks is prohibited but only if the placement is aimed specifically at those under the age of eighteen or the placement encourages "immoderate consumption" of alcoholic drinks;
6. as a sweep-up of all other placements that may sit uncomfortably with the Government, the Regulations also state that product placement is prohibited of it is contained within a programme that falls within the prohibitions and the product placement is "otherwise unsuitable"; and
7. the Government will review the implementation of the Directive in 2012
No further formal or statutory guidance is being issued by the government where the Regulations are concerned. It is now for Ofcom to hold a further consultation process before revising the Broadcasting Code accordingly (including key details such as the 'signal' that needs to be incorporated around programmes containing product placement to make this clear to viewers) and for Ofcom to provide any further advice and guidance that may be necessary for broadcasters. It's then full steam ahead for product placement on our TV screens.
Why this matters:
As we advised last month on marketinglaw, UK television companies and advertisers still need to apply the brakes before planning programmes containing product placement. The full details of what will be allowed and how will not be 100% clear until Ofcom has concluded its consultation exercise on the Broadcasting Code updates. The process should be complete by the end of 2010 we estimate so a little more waiting first…..
Anna Williams (née Montes)
Senior Associate
Osborne Clarke, London
anna.williams@osborneclarke.com
