Although Britain remains gripped by the coronavirus lockdown, for the UK advertising sector regulator, the Advertising Standards Authority (ASA), it is business as usual. We highlight a few recent rulings, one on e-cigarettes and two on gender sterotyping/objectification.
E-cigarette and vaping ads
Following our blog post at the start of the year on the ASA rulings against e-cigarette producers for breaches of the CAP Code, the ASA has continued its enforcement action against advertisers of vaping and smoking products. The ASA’s initial enforcement action was sparked by a Telegraph newspaper investigation, and press interest in e-cigarette advertising remains high.
For example, the ASA recently published the results of its investigation into outdoor ads posted on buses by Vape Nation Ltd. Complainants challenged whether the ads were published appropriately, because the buses were used by schoolchildren. The ASA ruled that there had been no breach of the CAP Code. CAP Code rule 22.11 prohibits e-cigarette advertising directed at the under 18s (including media where more than 25% of its audience is underage). However, the advertiser was able to demonstrate to the ASA that the ads appeared only on commercial vehicles, not designated school buses. Despite serving some schools along the routes, the ads were not targeted at minors.
The ruling reinforces the ASA’s Electronic Cigarette Advertising Prohibitions, which provides guidance on the forms of media that are permissible for e-cigarette products. Unlicensed nicotine-containing e-cigarettes can be advertised on outdoor media, including posters on public transport. However, these types of ads must still comply with the CAP and BCAP Code.
We cover the ASA’s action against four e-cigarette producers and explain in more detail the implications for the vaping industry in our earlier blog post.
We have previously reported (e.g. see here and here) the ASA’s efforts to eliminate gender stereotyping in ads. The new beefed-up ASA rules come partly in the wake of the #metoo movement, and partly of the regulator’s own volition. The CAP Code prohibits ads that cause widespread offence, which includes ads that objectify women.
The ASA has recently ruled on two ads published by Missguided, the women’s fashion retailer. Both ads were displayed in posters at public transport stations:
- The first ad featured a model wearing a pink-wrap mini dress, displaying her cleavage and legs. This ad was not banned by the regulator, who said that it was no more than mildly sexual and focused on the featured dress, rather than any specific part of the model’s body. Whilst the poster appeared on the London Underground, which would likely be seen by children, the image was not considered overtly sexual so was not inappropriately placed.
- The second ad featured the same model, but this time wearing an unbuttoned jacket with nothing underneath it. The ASA did ban this ad, notwithstanding that the advertiser “strongly contested” the complaints. The regulator found that the focus of the ad was on the model’s chest and lower abdomen, rather than the clothing being advertised. The model was also likely to be seen as being in a sexually suggestive pose, which – together – would be seen as presenting women as sexual objects.
Note that there is some scope in the CAP Code rules for publishing ads that are distasteful but do not breach these strict rules.
In a separate ruling, the ASA upheld a similar complaint against PrettyLittleThing, another fashion retailer. The ad was published on YouTube and featured a woman wearing “black vinyl, high waisted chaps-style knickers and a cut-out orange bra”.
PrettyLittleThing said that their aim was to promote a positive and healthy body image that was inclusive and empowered women. However, the ASA ruled that the ad was overly-sexualised and should not appear again. The combination of highly sexualised poses and skimpy clothing treated the women as sexual objects.
In light of these rulings, brands should be careful when marketing products featuring women (or indeed, men) in seductive poses or wearing revealing clothing with rather too much focus on flesh, than the clothing being peddled.
As all advertisers know, sex sells, but it is increasingly difficult to get the balance right. If in doubt, seek specialist legal advice.
Squire Patton Boggs specialises in advising on advertising and marketing matters and has represented a number of parties in the tobacco and tobacco products market as well as fashion retailers. If you would like specialist advice on these and related issues, please contact partner Carlton Daniel.