“Style, attract, play” by “Shocka featuring Honeyshot” was getting good airplay from DJs until it turned out that the band and track were created by Saatchi & Saatchi for Procter & Gamble to promote its Shockwaves hair gel. But did this break any rules? Veena Srinivasan reports.
Who: Procter & Gamble/Saatchi & Saatchi
When: May 2007
Law stated as at: 30 May 2007
Earlier this month, a spokesperson for Radio 1 delivered this statement regarding the track called Style, Attract, Play by Shocka featuring Honeyshot:
"The track was presented to Radio 1 in the usual way, via a legitimate promotions company and we were not aware that it was a promotional tool for a hair product."
"As this is created by an advertising agency with the sole purpose of selling this product, and we do not play adverts, it is not something we would play again."
So, what is this all about? It turned out that Style, Attract, Play, which featured on programmes presented by Judge Jules, and was played by other radio stations such as Kiss and XFM, is the slogan for Procter & Gamble's hair products brand, Shockwaves.
Track name is a pending Community Trade Mark
Style.Attract.Play Group company Wella AG has also applied to register a logo incorporating "Style.Attract.Play" as a Community Trade Mark.
The Popjustice website, which first exposed this matter, explains that the band, Honeyshot, was put together by Gum, Saatchi & Saatchi's content creation division. Even more cheekily, or innovatively, depending on which side of the fence you sit on, this band can be bought by brand owners, on an "off the shelf" basis, to be used in promotional activity such as this.
Why this matters:
Andrew Wilke, the managing director of Gum, had made the following comment regarding how Honeyshot could be used by brand owners, to promote their brand and products:
"It could be as simple as sponsorship of a tour through to clothing that could be worn, drinks, cosmetics – all that stuff is possible."
Others were less impressed by Saatchi & Saatchi's tactic. Julian Henry, who runs the agency Henry's House Agency, said:
"I think it's a crass [..] attempt to hoodwink the public and the press."
Any rules broken?
Even amongst those in the industry, opinion seems to be divided, but whether you see this marriage of music and promotion as a masterstroke in reaching the Shockwaves brand's target market, or whether you see it as pulling the wool over the eyes of the music buying public, does this practice break any rules?
You may have seen our article regarding talkSPORT's stint in the naughty corner.
The ASA upheld a complaint in respect of a weblog, which could be found on a number of football club related websites, on the basis that it was not clear that it had been placed by talkSPORT and was, thus, misleading under 7.1 of the CAP Code. In addition, the ASA found that this activity had breached 22.1 of the CAP Code, which states that:
"Marketers, publishers and owners of other media should ensure that marketing communications are designed and presented in such a way that it is clear that they are marketing communications."
The Radio Standards Advertising Code contains similar rules regarding the transparency and clear seperation of advertising:
"Advertising must be clearly distinguishable from programming.
Licensees must ensure that the distinction between advertising and
programming is not blurred and that listeners are not confused between the two."
However all these rules apply to the standards expected in paid for advertising, so it seems unlikely they apply to what is after all editorial/programe content.
Ofcom Broadcasting Code
The rules in the Radio Code are subject to, and supplemented by, any Ofcom rules or guidance on cross-promotion. Of particular relevance to this issue are the following rules:
10.1 Broadcasters must maintain the independence of editorial control over programme content.
10.2 Broadcasters must ensure that the advertising and programme elements of a service are kept separate.
10.3 Products and services must not be promoted in programmes. This rule does not apply to programme related material.
10.4 No undue prominence may be given in any programme to a product or service.
"Undue prominence" may result from:
– the presence of, or reference to, a product or service (including company names, brand names, logos) in a programme where there is no editorial justification; or
– the manner in which a product or service (including company names, brand names, logos) appears or is referred to in a programme.
Here we have a track promoting a hair product forming part of a radio programme. Not only that, the name of the track is the slogan associated with a product, which also happens to be the subject of a European trade mark application. A case for Ofcom and aggravation for the networks that carried the track and who are obliged to follow the Code?
The Unfair Commercial Practices Directive (2005/29/EC) ("the Directive")
The Directive is not law as yet but will soon harmonise unfair trading laws in all member states of the EU. It introduces a general obligation on all businesses not to treat consumers unfairly and, in particular, not to mislead consumers through acts or omissions or subject them to aggressive sales techniques.
The Directive was adopted on 11 May 2005, must be transposed into UK law by 12 June 2007 and must come into force on 12 December 2007.
The key test, in most cases, is whether the practice would distort the economic behaviour of the average consumer, in other words, practices that impact on the consumer's decision at to whether or not to purchase a good or service and from whom.
It is at least possible that were P&G to redeploy this tactic after the Directive was implemented in the UK, it would be considered a unfair commercial practice by virtue of the definition of "misleading omissions", under the Directive. Article 7, paragraph 2 of the Directive, provides that:
"It shall also be regarded as a misleading omission […] a trader [..] fails to identify the commercial intent of the comemrcial practice, if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise".
In conclusion it is difficult to assess exactly how English regulators would view such techniques but under existing rules there are clear possibilities that codes have been broken and with the increased attraction of combining music and advertising, this is going to be an area that is likely to get more than its fair share of the limelight.