The ASA has committed itself to being tougher on negative gender stereotyping in all marketing communications. Laura Kelly of the IPM’s Legal Advisory Service explores what this means for promotional marketers…

This week the ASA published a report, “Depictions, Perceptions and Harm”, following a major review of gender stereotypes in advertising.

It indicates a renewed commitment from the ASA to take a tougher stance on stereotypical gender roles or characteristics which can potentially cause harm. Some will consider this a long needed step in the right direction, but others may see it as a restriction on creative freedoms. So does the promotional marketing industry need to be worried?

It’s rare to see complaints about harm and offence relating to promotions – consumers are more often concerned with misleading headlines, missing conditions and making sure they get their prizes.  However, when they do hit the headlines they can cause a stir. For example, a newspaper promotion offering a chance to “Win a date with a Daily Star Page 3 babe”, describing the women as a “sizzling prize” was unsurprisingly ruled by the ASA to be sexist and offensive. It may seem like an archaic idea – but this ran just two years ago.

Hopefully, few brands will want to run obviously problematic competitions like the above!

But the ASA also wants to target more insidious stereotyping – well known “characters” such as the bumbling, inept father and the servile, put upon mother are likely to fall into this category. Brands with links to traditionally gendered items such household products and toys will want to be wary.

Positive spins on gender with inclusive messages are a great way to go, as we’ve seen from the enormous coverage the “This Girl Can” campaign achieved, among others. But brands should also consider whether gender even needs to be part of their targeting strategy. The IPM’s Grand Prix winner this year, Sense’s Discomfort Future campaign for The Economist, aimed to engage open-minded people who reacted positively to unusual situations, offering free coffee from apparently recycled sewage water. It focused on what made their customers unique, not their gender.

So perhaps the main takeaway here should be that the best ideas don’t need tired gender stereotypes anyway. If you’re creative, the ASA’s new approach shouldn’t need to frighten you at all.

If you’re an IPM member and have any questions about the law, the CAP Code and other regulations or best practice, you can contact Laura at laurak@theipm.org.uk

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Laura Kelly of the IPM’s Legal Advisory Service highlights some changes to the rules on putting prices in marketing communications

The Chartered Trading Standards Institute recently released the new Guidance for Traders on Pricing Practices. It replaces the 2010 BIS Pricing Practices Guide, long used by both advertisers and regulators to help establish best practice in line with consumer protection laws. But exactly how might this change impact promotional marketing?

The first point to note is that the consumer protection laws have not changed; the guidance has been updated but the principles behind it remain the same, so it’s unlikely you will need to significantly change your current practices.  Remember the guidance is not legally mandatory but will be considered by regulators where appropriate.

The guidance provides common sense advice with practical examples, and the new document is arguably more user friendly. It breaks scenarios down into practices that are less likely or more likely to comply, rather than giving definitive rules or timespans. There are two key changes that most commenters have picked up on that are relevant to our field.

One of these is that the so called “28-day rule” has been removed. The BIS PPG stated that a period of 28 consecutive days within the previous 6 months would be deemed reasonable in terms of the least amount of time a product would need to be sold at a higher price before it could be reduced and genuinely claimed to be discounted. Some have suggested this was used to artificially inflate prices; the ASA had notably already moved away from this position in recent years, focusing on overall pricing history rather than specific figures. It is therefore best to see this as a clarification of current principles rather than a change in position.

Some commentators have noted the focus on reference pricing and advised wariness when using RRPs. The new guidance contains a link to CAP guidance on the subject, which notes that even if the RRP has been given to you by the manufacturer, if you can’t demonstrate that it is actually sold at that price it’s likely to be considered misleading. Again, while some may be surprised to discover this information it has been a long-held principle.

So, if you’re already following best practice you shouldn’t need to make any changes. If any of the above is news to you however, now’s the time to brush up!

The ASA will continue using precedent to make rulings, but it’s worth keeping an eye on future cases to see whether they change direction at all. I’ll mention any significant rulings in my Legal Scoop which you can subscribe to on the IPM website, and of course they’re likely to come up as case studies in future IPM Legal Briefings.

If you’re an IPM member and have any questions you can contact Laura at laurak@theipm.org.uk

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Laura Kelly, Legal & Regulatory Advisor at the IPM, explains why changes to the CAP Code, the rules governing advertising and marketing in the UK, had to happen and the opportunities they offer to the promotions industry

The advertising and marketing industry is famed for many things; bringing to life brands, creating a huge economic impact, making us laugh or cry, making brands memorable. Marketing communications work – what we do has the power to influence people.

With great power, as always, comes great responsibility, a fact which the UK’s marketers have long realised. That’s why we have the CAP Code and the ASA to uphold it at the heart of a self-regulatory system which is recognised internationally as world class.

Our industry is constantly changing – take the way, over the past 20 years, that digital technology has completely revolutionised the way brands talk to consumers and made marketing, in some ways, far more powerful. Society changes as well – few of us do as much hard manual work as our grandparents did or get as much exercise.

As a result, our waistlines are expanding – and the particular worry is how our children are being affected. Obesity levels amongst the young are increasing.

Increased concern about obesity has led to a focus on advertising and marketing of calorie-rich food and drink, and there has been a keen interest in how we promote certain HFSS (High, Fat, Salt and Sugar) brands to children and families. We have seen accusations levelled at the marketing industry that what we do is making us fat and damaging our health.

Late in 2015, the Government launched its soft drinks taxation promise to help address the growing concern about obesity, centered on the high sugar intake of children. The Government promised the UK public that it would tackle the brands responsible.

Several months and many consultations later, the efforts of CAP, the Advertising Association and many other interested parties (including the IPM) have managed to prove that advertising does not in fact contribute in any significant way to the increase in obesity levels in children – other factors such as parental influence and the switch from physical activity to playing computer games bear far more responsibility.

However, the advertising and marketing industry recognises that there is much more it can do to help. To begin with, the industry decided to tackle at source the rules that govern the work we do.

The IPM, as part of the self-regulatory framework that governs UK broadcast and non-broadcast rules, was a key member of the consultation groups to examine the areas of critical understanding in children when looking at the effects of advertising and marketing messaging.

The outcome of this work has seen a CAP Code change that signals a huge change in the way brands can promote to under 16s and under 12s.

As a reminder:

• Ads that directly or indirectly promote an HFSS product cannot appear in children’s media;
• Ads for HFSS products cannot appear in other media where children make up over 25% of the audience;
• Ads for HFSS products will not be allowed to use promotions, licensed characters and celebrities popular with children. Advertisers may, however, now use those techniques to better promote healthier options;
• The Department of Health nutrient profiling model will be used to classify which products are HFSS.

Creating a future for responsible promotion

At the IPM, over the past two years we have seen a shift towards more responsible promotion across the board, particularly FMCG brands. Being involved in this consultation has shown that the entire industry embraces this forward thinking approach and we are delighted to support the changes at the IPM.

These changes also bring opportunity. Restrictions on using promotions, licenced characters and celebrities in food ads directed at children have been loosened. They will now be permitted in ads for all non HFSS foods, giving marketers powerful new techniques to better promote healthier options.

With such a positive change happening across the industry, we can truly say we are part of the solution and not the problem. For a time, we were at real risk of losing our right to self-regulate and the IPM supports the new rules every step of the way.

The IPM will actively promote the rule changes from now on, so that brand owners are ready and able to implement media and promotional changes in advance of the new rules coming into effect.

Laura Kelly is Legal & Regulatory Advisor at the Institute of Promotional Marketing (IPM), advising marketers at client companies, agencies and suppliers on how to ensure that their promotional marketing activities are legal and that they conform to the CAP Code, the rules which marketing and advertising in the UK must follow under the country’s self regulatory system.

The IPM is holding a special webinar on Wednedsay 15th December in partnership with the Committee of Advertising Practice (CAP) to explain the changes to the CAP Code on HFSS food and drink marketing. Places are free and you can book your place here.

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