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Marketers Beware

PatrickAmbrose
Patrick Ambrose

The latest edition of the Code of Standards for Advertising and Marketing Communications in Ireland introduced a number of new standards covering a number of areas that are of relevance to marketers. Patrick Ambrose, author of The Law of Advertising in Ireland, looks at the new additions and what they mean for advertisers and marketers.

In September, the Advertising Standards Authority for Ireland (ASAI) published the 7th edition of the Code of Standards for Advertising and Marketing Communications in Ireland. The preceding, 6th, edition of the Code had been in effect since January 2007, although the scope was amended in January 2013 with the insertion of a new Annex relating to online behavioural advertising. The changes introduced in the 7th edition reflect EU and domestic legislative updates since 2007 and emerging industry and market practices, along with important clarifications on the scope and application of the Code, and the role of the ASAI itself. The 7th edition of the Code will take effect from March 2016.

In the 7th edition, the application of the Code is expanded to specifically include marketing communications in free distribution newspapers, on digital screens or on any digital and electronic storage material, or broadcast with video, DVD and Blu-ray. It is also clarified that the Code applies to marketing communications in non-paid for space online, under the control of the advertiser or their agent, including but not limited to advertisers’ own websites, that are directly connected with the supply or transfer of goods, services, facilities, opportunities, prizes and gifts or which consist of direct solicitations for donations.

Additional clarification is also provided as to what the Code does not apply to. Out of scope are marketing communications for ideas and causes except where they appear in paid for space, including donated space, or where there is a direct solicitation for money within the marketing communication, nor does the Code apply to claims by a religious organisation that are not objectively verifiable, however, subject to these exclusions, the Code will apply to marketing communications for ideas or causes in paid-for space, including donated space, or where there is a direct solicitation for money within the marketing communication.

Similarly, while the Code does not apply to political party marketing communications or to those whose principal function is to influence voters in a local, regional, national or international election or referendum, the Code will apply to all other marketing communications by central or local government.

So what are the new standards that were introduced and what do they mean for advertisers?

Legality, honesty, decency and propriety

The first principle of the Code remains that marketing communications should be ‘legal, decent, honest and truthful.’ Advertisers should not state or imply that a product can legally be sold if it cannot, and whether the presentation of information is insufficient or likely to mislead will depend on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the advertiser takes to make that information available to the consumer by other reasonably accessible means.

The Code acknowledges that humour and satire are natural and accepted features of the relationship between individuals and groups within the community, however, humorous and satirical treatment of people and groups of people should take into account generally prevailing community standards, the portrayal is not likely to cause grave or widespread offence, hostility, contempt, abuse or ridicule. It is also noted, however, that whether a product can or cannot be legally sold in Ireland is not a matter for the ASAI to determine, nor has the ASAI any mandate to act as a censor or an arbiter of public morals.

Promotions, prizes and gifts

Significant changes have been made to the Code in relation to prizes and gifts. Promoters should specify the number and nature of prizes or gifts, if applicable, and if the exact number cannot be predetermined, a reasonable estimate of the number and a statement of their nature should be made.

Promoters should not exaggerate consumers’ chances of winning prizes, nor claim or imply that consumers are luckier than they are. In particular, they should not use terms such as “finalist” or “final stage” in a way that implies that consumers have progressed, by chance or skill, to an advanced stage of a promotion if they have not.

In addition, marketing communications that include a promotion and are significantly limited by time or space should include as much information about significant terms and conditions as practicable and should direct consumers clearly to an easily accessible alternative source where all terms and conditions of the promotion are prominently stated, and participants should be able to retain these or easily access them throughout the promotion.

Gambling

Another significant change to the Code is the introduction of a new section on ‘gambling’, defined in the Code as gaming, betting, lotteries, bingos or amusement arcade games. This section of the Code applies to any marketing communication which promotes any gambling service or product or promotes the name, familiarity or reputation of gambling companies whether or not a gambling product is shown or referred to, however, any marketing communication that depicts or refers to gambling may be considered under this section whether or not gambling is the main product or service being marketed. Unless they portray or refer to gambling, this section of the Code does not apply to marketing communications for non-gambling leisure events or facilities (e.g. hotels, cinemas, bowling alleys or ice rinks) that are in the same complex as, but separate from, gambling events or facilities.

Among the rules introduced, all advertisements for gambling services or products must contain a message to encourage responsible gambling and direct people to a source of information about gambling and gambling responsibly. Marketing communications for gambling should not portray, condone or encourage gambling behaviour that is socially irresponsible or could lead to financial, social or emotional harm, nor should it be suggested that gambling can provide an escape from personal, professional or educational problems such as loneliness or depression.

Specific rules are applied in relation to children, and a marketing communication should not be likely to be of particular appeal to children (such as by containing endorsements by recognisable figures who would be regarded as heroes or heroines of the young), nor should they feature anyone who is, or seems to be, under 25 years old unless that individual is the subject of the bet offered or is part of an event which is.

Financial services

In the past the ASAI has received complaints relating to financial services and products which, upon review, did not relate to the advertisement itself but to the nature of the product being advertised. Therefore, in relation to financial services, it is now specifically noted that the Central Bank of Ireland has primary and statutory responsibility for the regulation of advertising for financial services and products, and the relevant requirements are set out in Consumer Protection Code 2012 (CPC). The Code further notes, however, that all such advertisements are also subject to the rules of the Code and the ASAI will, where appropriate, examine complaints submitted that refer, in general or in particular, to the provisions of the ASAI Code. If the ASAI considers that, because of the particular provisions of the CPC or the substance of the complaint, that the matter should more properly be dealt with by the Central Bank of Ireland, complainants will be advised accordingly.

Environmental claims

The Code introduces new rules in relation to environmental claims, and advertisers should base environmental claims on the full life cycle of the advertised product, unless the marketing communication states otherwise, and should make clear the limits of the life cycle. If a general claim cannot be justified, a more limited claim about specific aspects of a product might be justifiable, however, advertisers should ensure claims that are based on only part of the advertised product’s life cycle do not mislead consumers about the product’s total environmental impact.

Marketing communications should also not mislead consumers about the environmental benefit that a product offers, for example, by highlighting the absence of an environmentally damaging ingredient if that ingredient is not usually found in competing products or by highlighting an environmental benefit that results from a legal obligation if competing products are subject to that legal obligation.

The Code also notes that symbols may imply environmental claims in themselves, so they should be simple and used in such a way that they do not convey false impressions about the characteristics of goods or services, and in particular should not be used in such a way as falsely to suggest official approval or third-party certification.

E-cigarettes

The Code now includes a specific section relating to e-cigarettes which provides that advertisements for such products should be socially responsible and should contain nothing which promotes the use of tobacco products, or shows the use of a tobacco product in a positive light. However, this rule is not intended to prevent cigarette-like products being shown. Health professionals or celebrities should not be used to endorse electronic cigarettes, and people shown using e-cigarettes or playing a significant role in the advertisement should neither be, nor seem to be, under 25.

Food

The section of the Code relating to food has been completely updated to bring the Code into line with the EU Regulations concerning nutritional and health claims.

To conclude, the ASAI has evidently put much time, effort and thoughtful consideration into the 7th edition of the Code in order to continue to promote the ‘legal, decent, honest and truthful’ nature of commercial marketing communications without unduly inhibiting this vibrant, creative industry. The Code, in its newly updated form, will continue to be an important reference for advertising practitioners as to what the ASAI considers appropriate standards in the advertisement of products and services in Ireland.

Patrick Ambrose is author of The Law of Advertising in Ireland published in July 2015 by Bloomsbury Professional. He will host an afternoon seminar on “Advertising Within the Law” in The Morrison hotel, Lower Ormond Quay, Dublin on February 18th 2016. For programme details and to register, please Jennifer.simpson@bloomsbury.com