Contrary to the suggestion in the latest consultation document, this is the third time in four years UK branded placement stakeholders are being consulted on new TV product placement rules. Stephen Groom charts how we have got here and looks at the still unresolved issues.
Topic: Product placement
Who: Department for Culture, Media and Sport
Where: London
When: November 2009-8 January 2010
Law stated as at: 2 December 2009
What happened:
Not for the first time, HM Government launched a second consultation on whether to free up product placement rules on UK commercial TV.
Key milestones to date in an over-long saga are as follows:
December 2005
Ofcom launches a consultation on whether to liberalise the UK's laws governing paid-for product placement on commercial TV ("PP"). The move is to say the least interesting because at that time, PP was in any event effectively forbidden under the EU "TV Without Frontiers Directive" ("TWFD") (89/552/EEC).
October 2006
Ofcom publishes consultation responses and indicates unsurprisingly that no change to PP rules are likely.
November 2007
The TWFD is superseded by the less imaginatively monickered "Audio Visual Media Services Directive" (2007/65/EC).
Implementation by all member states of the "AVMSD" is due by 19 December 2009. The most headline-friendly innovation in the Directive is a provision giving member states the opportunity, if they want, to allow PP within certain constraints.
June 2008
On the eve of the launch of a UK Govt consultation on implementation of the AVMSD, then Culture Secretary Andy Burnham indicates that any change to UK PP laws is very unlikely, despite the impending AVMSD implementation.
June 2008
The UK Govt consults on AVMSD and still appears to be asking for views on new PP freedom, despite Burnham's premature remarks.
August 2008
Tories hint that they will allow PP.
March 2009
HM Govt makes a Parliamentary statement that the "balance of argument" is against freeing up PP.
September 2009
New Culture Secretary Ben Bradshaw indicates that he is inclined to allow PP after all.
November 2009
DCMS launches consultation on liberalising PP with quick closing date of 8 January 2010. This will not apply to BBC programming as the BBC Charter still prohibits PP.
Basic PP groundrules clear?
All member states who decide to permit PP are required by the AVMSD to observe the following seven groundrules:
1. always excluding "children's programmes", PP will be possible in "cinematograph works, films and series made for audiovisual media services, sports programmes and light entertainment programmes";
2. the content and scheduling of programmes featuring PP ("PPPs") must not be influenced in such a way as to affect the responsibility and editorial independence of the media service provider;
3. the PPP must not directly encourage the purchase or rental of goods or services, in particular by making promotional references;
4. undue prominence must not be given to the placed product;
5. viewers must be clearly informed as to the existence of PP. PPPs must be appropriately identified at the start and end of the programme and when the programme resumes after an advertising break BUT all these disclosure requirements can be waived if the PPP has neither been produced nor commissioned by the media service provider itself or an affiliated company;
6. in any event programmes must not contain PP from (i) tobacco products or cigarettes or PP from undertakings whose principal activity is the manufacture and sale of cigarettes and other tobacco products or (ii) specific medicinal products or medical treatments available only on prescription in the Member State within whose jurisdiction the media service provider falls; and
7. PP must always respect basic requirements for all programme content covered by the AVMSD such as not encouraging behaviour prejudicial to health or safety or causing physical or moral detriment to under 18s.
Knotty issues still to be decided
So that's all clear, then, but not necessarily as the DCMS consultation underlines that this still leaves a number of knotty issues to be grappled with including:
- should PP be allowed in "reality" strands such as Big Brother or serious documentary strands such as Channel 4's Dispatches?
- there is no express prohibition in the Directive on PP in news and current affairs programmes, but should PP be allowed in religious, news, current affairs or consumer programmes?
- should PP be allowed in programming that does not necessarily fall within "children's programmes", but has a disproportionately high child audience?
- if PP is allowed in such programmes, should there in any event be bans on PP for certain types of product such as foods that are high in fat, salt or sugar or alcohol?
- How can "undue prominence" be avoided, given the commercial imperative to recognisably show the product so as to make the PP worthwhile?
- Should PP for gambling products, alcoholic drinks be banned outright?
- The AVMSD requires that PP is flagged up to viewers at the start and finish of programmes and either side of commercial breaks, but without more detailed controls, such frequent mentions could themselves end up being yet more (and free) promotion of the products in question. So for example should the PP disclosures actually name the placed product and should there be even more frequent disclosures such as whenever the product appears on screen?
- And what about negative PP arranged by a competitor of the placed product, depicting the placed product in a bad light. Should specific controls be introduced in respect of such practices?
Why this matters:
So finally, subject to ironing out a few wrinkles, it looks like product placement will be coming to a screen near you.
And this looks likely to happen quite soon, given that the UK regulations implementing the AVMSD as a whole, the Audiovisual Media Services Regulations 2009 ("AVMSRs"), come into force on 19 December 2009.
But how come the Government will still be consulting on some of the details of the new PP rules when the AVSMRs, which appear to pre-judge some of the issues being consulted on, come into force?
The answer is that from 19 December 2009, it will only be PP in on-demand TV services that is allowed. Any widening of this to scheduled programmes will need an amendment to the AVSMRs following the outcome of the current consultation.
Vacillation leads to delay
The Government's vacillation on the issue has regrettably led to this untidy coda to AVMSD implementation in the UK, but the broad consensus appears to be that albeit late in the day, the right decision has been made.
As ever, however, the devil will be in the detail and we await the outcome of the consultation with interest, particularly as given the tight response time, the current administration appears determined to get this reform onto the statute books before its likely demise.
