With its disappearance into the black hole of OFCOM imminent, the ITC opted for only minimal adjustments to its new TV advertising code, but hey, what a great new index!
Who: The Independent Television Commission
When: September 2002
A new "Advertising Standards Code" was published by the Independent Television Commission, the body which licenses all UK-based TV broadcasters and has a statutory duty under the Broadcasting Act 1990 to draw up and enforce a code governing standards and practices in television advertising and programme sponsorship. Current ITC licensees are ITV, GMTV, Channel 4, Channel 5, satellite television services provided by broadcasters within the UK jurisdiction (whether or not their main audience is in the UK), licensable programme services, local delivery services, digital programme services and local television services provided under Restricted Service Licences.
The Code updating process involved wide consultation and it has been re-formatted for easier cross-referencing. There are no earth-shattering changes to the content, but here are some highlights, such as they are.
A general change is that each main section is introduced by a "background" note which puts the section in context and draws out one or two of the more significant rules in the forthcoming section.
The "Unacceptable Categories of Advertising" section is largely unchanged, but one particular change is that the "tobacco" category of unacceptable products is extended to "non-tobacco products or services which share a brand name with a tobacco product where these are prohibited by law from advertising in other UK media." This foreshadows up-and-coming new UK legislation reported elsewhere on marketinglaw and explanatory notes indicate that these non-tobacco products may only be advertised if the ads are clearly aimed at an adult audience, make or imply no other reference to smoking or the tobacco product whose brand name it shares, do not lead the viewer to other material promoting tobacco or smoking and do not include any elements of design, colour, imagery, logo style etc which are associated with tobacco products, apart from the brand name. In no advertising on TV must there be any reference to tobacco products or smoking which might be of particular interest to children or teenagers. Two examples given are health-related public service advertising and incidental images of smoking in clips from films made before the dangers of smoking were widely recognised.
So far as misleading advertising is concerned, the definition is shortened though not materially changed, whilst there are much fuller explanatory notes. For instance it is indicated that advertising is likely to be considered misleading if, for example, it contains a false statement, description, illustration or claim about a material fact or characteristic. Material characteristics include price, availability and performance. Any ambiguity which might give a misleading impression must be avoided. Another new note here is that even if everything stated is literally true, an advertisement may still mislead if it conceals significant facts or creates a false impression of relevant aspects of the product or service. Also new here is an indication that an advertisement may be misleading even if it does not directly lead to financial loss or a misguided purchasing decision. An advertisement may also be regarded as misleading if, for example, it causes viewers to waste their time making enquiries only to find that offers are unavailable or that there are important limitations. The notes go on to say that the ITC considers the overall impression likely to be conveyed to a reasonable viewer, not the intention of the advertiser or whether the advertising meets legal or other regulatory requirements. A definition of "misleading advertising" as contained in the Control of Misleading Advertisements Regulations 1988 (as amended) is also helpfully included.
In the "Comparative Advertising" section,out goes the free market encouraging "Advertisements containing comparisons with other advertisers, or other products or services, are permissible in the interest of vigorous competition and public information". Instead there is the rather more sober "there must be no realistic likelihood that viewers will be misled as a result of any comparison, whether about the product or service advertised or that with which it is compared." Now that we have the detailed comparative advertising requirements contained in the Control of Misleading Advertisements (Amendment) Regulations 2000, these recent regulations are also summarised in the notes to this section.
In the section on the use of the word "free", the last Code indicated that an offer was not prevented from being described as being "free" if nothing more than actual postage or carriage costs or incidental travel undertaken by the customer in collecting the offer were involved. These categories of non material costs have now been extended to include "non premium rate telephone charges", from which one can assume that having to incur a premium telephone call cost will prevent an offer from being described as "free".
New wording in the "Price Claims" section makes it clear that quoted prices must be inclusive of all non-optional taxes, duties and fees which apply to all buyers. The notes explain that areas where this is particularly relevant include flight and cruise advertising. They go on to state that if a non-optional charge is variable and therefore impossible to quantify, advertising should make clear that it is excluded from the quoted price. Furthermore, since TV advertising is regarded by the ITC as generally being a business to consumer medium, advertising quoting only VAT-exclusive prices would be appropriate only in exceptional circumstances. Another new rule in this section requires that where the headline cost of goods and services available by mail order or other distance selling means does not include delivery, the delivery charge must be clearly indicated beside the headline price.
In the "Offence" section there are much more expansive rules, perhaps indicating the greater importance now attached to this area of the Code. Also new is a non-exhaustive list of areas where society has "shared standards, evolved over time". These consist of the portrayal of death, injury, violence, or misfortune, respect for the interests and dignity of minorities, respect for spiritual beliefs, rites, sacred images etc, sex and nudity and the use of offensive language. Also new is a note indicating that particular circumstances can result in otherwise unobjectionable material causing offence. For example, a joke may cease to be acceptable if it seems to refer to a recent tragedy or if it appears close to a programme about a serious, related issue. If on the other hand material might be on the edge of acceptability for a general audience but would be perfectly acceptable to, for example, young adults, careful scheduling in "youth" programmes may be sufficient to avoid causing offence.
Also new, although demonstrating no major departure from the earlier code, there are "Violence and Cruelty" and "Personal Distress" sections. The latter replaces the "Appeals to Fear" section of the earlier Code and is drawn more widely, requiring that "advertisements must not, without good reason, contain material which is likely to cause serious distress to significant numbers of viewers."
In the "Children" section there is a new provision requiring that advertisements must not encourage or condone bullying, whilst there are far more detailed notes dealing with the principles applicable to scheduling of advertisements so as to prevent their being seen by certain age groups.
In the "Medicines, Treatments, Health Claims and Nutrition" section the new Code executes something of a minor U turn by removing the previous prohibition on any advertisement containing "any offer to diagnose, advise, prescribe or treat by correspondence, including post, telephone, fax or email." The change has been driven by the emergence of public services such as NHS Direct, offering telephone advice by qualified nurses. The new rule states that "licensees may only accept advertising for services offering remote personalised advice on medical or health matters where all staff who provide such advice are subject to regulation by a statutory recognised medical or health professional body." The new rule goes on to make it clear, however, that services that offer to prescribe or treat (as opposed to provide advice) remotely may still not be advertised.
The "Finance and Investment" section now makes reference to the Financial Services and Markets Act 2000 and its regime. The new Code also follows the scheme of the legislation here by making it clear that any advertisements for financial services which are broadcast on ITC licensed services that are aimed exclusively at audiences in EU member states other than the UK and are not therefore subject to the "Financial Promotion" rules of the FSA do not need to comply with the ITC Code. Instead they must comply with the laws and regulations of the relevant member states.
One last change is worth a mention here; this is the inclusion for the first time of a helpful index at the back.
Why this matters:
After four years it was high time the Code was updated, especially bearing in mind that we are always told that one of the attractions of regulation by Code is that these can be frequently and regularly reviewed. It is true to say that far more radical changes were foreshadowed in the previous consultation document announcing the review process. However, the ITC has clearly decided that no major changes are appropriate in the run-up to its being subsumed within OFCOM. Instead it has opted to make most changes so as to increase user friendliness, particularly by way of that new index!