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Advertising rules on harm and offence in focus

Posted on 17 June 2021

The broadcast and non-broadcast advertising rules in the United Kingdom are constantly evolving to reflect current political, social and ethical values in society. On 1 June 2021, the Committee of Advertising Practice and Broadcast Committee of Advertising Practice (CAP and BCAP) announced the launch of a consultation on the introduction of new rules on harm and protected characteristics (as defined in the Equality Act 2010). The proposed new rules stipulate that adverts must not include anything likely to cause harm, particularly in relation to:

  • age;
  • disability;
  • gender reassignment;
  • marriage and civil partnership;
  • pregnancy and maternity;
  • race;
  • religion or belief;
  • sex; and
  • sexual orientation.

As advertisers will know, rule 4.1 of the CAP Code and rule 4.2 of the BCAP Code already include a general prohibition on anything likely to cause serious offence in advertising. However, the new consultation suggests that the Advertising Standards Authority (ASA) may introduce specific new rules addressing protected characteristics.

We have also seen the introduction of new rules on harm and offence relatively recently. In 2019, the codes introduced a new rule specifically banning adverts that include harmful or offensive gender stereotypes. Since the implementation of this new rule, there have been several ASA rulings in this area and CAP has also issued guidance on the scope of the rule's application. By and large, the ASA has sought to send a strong message to marketers in the last few years that they must consider gender and avoid stereotypes when devising their advertising campaigns.

The consultation on protected characteristics accompanies the launch of an ASA call for evidence on racial and ethnic stereotyping in advertising. The purpose is to establish how racial and ethnic stereotypes in advertising contribute to real world harms, for example, unequal outcomes for different racial and ethnic groups. Following its assessment of the evidence, the ASA will report on whether it is tackling racial and ethnic stereotyping in ads effectively and, if the evidence suggests the need for a change in regulation, the best way to achieve this.

Racial and ethnic stereotyping has been the subject of a recent ASA ruling involving a TV ad by KFC. The ad featured two young black men in a KFC restaurant waiting at the counter for their food order. When the men collected their food, their legs turned into chicken legs and feathers floated around them, as they strutted and danced to hip hop music on the way to their table, while other customers looked on. Several complaints were made by members of the public. They argued that the ad perpetuated negative ethnic stereotypes and caused serious offence, as the ad played on the stereotype created in colonial America that all black people loved to eat fried chicken, and this was a way of mocking enslaved people of black origin.

KFC defended the complaint, arguing that the ad was one of a series of six ads in the campaign which featured a range of different actors of various ethnicities in the leading roles, including white actors. They also argued that the other customers in the ad, who represented a range of ethnicities and genders, looked at the men with admiration and amazement; they were perceived to be ‘cool’. The overall impression was a positive one in their view.

Whilst the ASA acknowledged that some viewers who saw the ad and were aware of the existence of the historic negative ethnic stereotype might find it distasteful, it considered that the ad was unlikely to be seen as perpetuating that stereotype. It concluded the ad was unlikely to cause serious or widespread offence. The ASA noted that, while the black characters were prominent, it did not consider they were depicted in a mocking or derogatory manner. Instead, the ad presented the young men as fun-loving, confident and playful, feeling happy because they got a money-saving deal on their food, which was reflected in their smiling faces, strutting walks and dancing.

The KFC complaint is not an isolated one. We are seeing an increasing number of complaints and rulings relating to the harm and offence rules, particularly in relation to matters of stereotyping and protected characteristics. This is inevitably a reflection of public opinion and sentiment. The ASA has also emphasised its commitment to equality and diversity, stating it considers itself subject to the public sector equality duty, which obliges it to consider how its policies and service delivery will affect people with protected characteristics.

No doubt we will see further changes to the adverting rules in the near future. In the meantime, brands and marketers should be conscious of these developments and the rules already in place when devising their advertising strategies in order to avoid adverse rulings and consequent negative PR. 

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