In 2004 Ofcom published revised rules for broadcast ads for alcoholic drinks. They were less restrictive than threatened and in return the industry promised Guidance Notes on the new rules. BCAP has now published these in draft.
The Broadcast Committee of Advertising Practice
The Broadcast Committee of Advertising Practice ("BCAP") has published a draft set of guidance notes to help interpret and apply the new rules for alcohol advertising on radio and TV introduced by Ofcom with effect from 1 January 2005.
Since that date, the new rules have been applied by the Broadcast Advertising Clearance Centre ("BACC") (the body that pre-vets all commercial advertising on UK TV on behalf of the networks) to all new advertising, but advertisers have a grace period until the end of September 2005 for advertising that was approved under the old rules but is not compliant with the new.
BCAP is the body to which Ofcom has delegated its responsibility for the broadcast advertising codes. It is an industry organisation that works hand in hand with the Advertising Standards Authority, which now adjudicates upon complaints in respect of both broadcast and non-broadcast advertising.
First Ofcom proposals
When Ofcom first published its proposed amended rules for advertising alcohol on TV and radio, they were accompanied by quite extensive guidance notes. There was considerable industry outcry however, as to the potentially very strict regime, which the guidance notes, but not necessarily the rules themselves, suggested.
At the end of the consultation period, therefore, Ofcom removed most of the guidance notes, published amendments to the code which were arguably less restrictive than the initial draft suggested and asked BCAP to draft a replacement set of guidance notes subject to consultation and Ofcom's final approval.
Purpose of the Guidance
The idea of the proposed guidance is to ensure an understanding of the objectives and interpretation of the new rules is shared by Ofcom, BCAP, ASA (B), BACC and the alcohol and advertising industries.
The consultation period is not long. It ends on Monday 11 April 2005, with a view to the notes being published in final form by June of 2005. The consultation document also deals with health and dietary claims in the context of alcohol advertising. The consultation period here ends on Monday 6 June 2005 and since the idea here is that there will be amendments to the code itself, the amended code is slated for publication by August 2005.
On marketinglaw.co.uk we will publish a separate piece in relation to the health and dietary claims proposals. Here we will focus on some of the highlights of the proposed guidance notes ("Notes").
Under rule 11.8.1 (a) advertisements must not suggest that alcohol can contribute to an individual's popularity or confidence or that refusal is a sign of weakness. Nor may they suggest that alcohol can enhance personal qualities.
The proposed guidance on this is that no advertisement should suggest that an individual is to be more admired for choosing to drink alcohol or that a person who chooses not to drink it might be less popular.
In respect of the rule that ads must not suggest that the success of a social occasion depends on the presence or consumption of alcohol, the Notes comment that the rule is not intended to prevent the depiction of alcohol as a "social lubricant". Lively, but responsible social interaction with alcohol present is allowed, but that liveliness must not depend on the presence of alcohol, although how one depicts non-dependence as opposed to dependence in these circumstances is unclear. Also the Notes indicate that "no behaviour may be juvenile."
On the rule that advertisements must not link alcohol with daring, toughness, aggression or antisocial behaviour, the Notes indicate that alcohol must not be associated with feats that would be considered unsuitable or out of the ordinary and likely to encourage irresponsible or antisocial behaviour. Examples of the latter would include "non-playful rudeness", excessive boisterousness and acts not normally associated with sobriety.
The Notes go on to say that this applies equally to the behaviour of men and women. Care should be taken to avoid immature, adolescent or childish behaviour, although the rule is not intended, the Notes go on, to prevent harmless irreverence or humour. Again, the dividing line between the two is, we suspect, going to be difficult to draw in many cases.
In respect of the rule that ads must not suggest regular solitary drinking is acceptable and that drinking can overcome problems, the Notes say this does not prevent showing a person having a drink alone. Ads must not suggest, however, that regular solitary drinking is acceptable or that alcohol is an essential or indispensable part of daily routine.
Turning to the rule that ads must not suggest that a drink is to be preferred because of its alcohol content, nor place undue emphasis on alcoholic strength, the Notes make it clear that factual, incidental references to an alcoholic product's strength are acceptable, but ads must not place undue emphasis on the alcohol content or strength of a product. The Notes go on to indicate that "incidental" factual strength comparisons between an advertiser's own products (for example re-formulations and brand extensions) may be presented as information, but ads must not suggest that those products are to be preferred or can be consumed in greater quantities because of their altered alcohol content. Competitor strength comparisons are, in all cases, disallowed.
On the rule that alcoholic drinks must be handled and served responsibly, the Notes state that there must be no suggestion of reckless abandon in the way that alcohol is handled and dispensed. Traditional popping of champagne corks accompanied by some overflow of wine should be acceptable, but scenes, for example, of party-goers being soaked in champagne are not, nor should alcohol be thrown or poured over people and no-one should be shown pouring a drink into the mouth of another person.
No appeal to under 18's
Some of the more extensive notes relate to the rule that drinks ads must not be likely to appeal strongly to people under 18. The Notes indicate that ads must avoid using pop stars, sportsmen and sportswomen who command particular admiration of the young, television personalities, youth-orientated performers and any person who is likely to have strong influence on the behaviour of the young. Music or dance should also be avoided as it is likely to appeal strongly to under 18s and generally caution is needed in the use of any sports, particularly sports having a strong appeal to the young, for example skateboarding or "extreme sports", which should be avoided.
Sex out, flirtation in
On the rule that alcoholic drinks must not be advertised in the context of sexual activity or seduction, but may include romance and flirtation, (subject to the rule about youth appeal), the Notes say that romance or mild flirtation may be shown provided it is gentle, understated and does not imply that the attraction is anything to do with drinking or choosing alcohol.
The above are just some edited highlights from the proposed guidance and all those involved in this sector should consider the Notes with care and naturally make representations to BCAP by 11 April 2005 if they have strong opinions about any of the provisions.
Why this matters:
Two points come out loud and clear from this development.
Firstly, the BCAP's proposals are for some much harsher and restrictive than expected. Marketinglaw believes otherwise, however, having previously reported, against the trend, that the code changes themselves were more restrictive than other reports suggested.
Secondly, this is the first time that BCAP has published draft proposals as to guidance on the interpretation of the Broadcast Advertising Codes. It brings it into rather uncomfortable juxtaposition with the Broadcast Advertising Clearance Centre, who has historically published its own guidance as to the Codes' interpretation.
Currently, the BACC is in the process of producing its own upgraded "Notes of Guidance," although there has been considerable delay in these appearing. The more this delay continues, the more it might be said that it may not be the best of ideas to have two sets of guidance notes relating to the same code, one from BCAP and one from BACC.