August 7, 2020

Volume X, Number 220

August 07, 2020

Subscribe to Latest Legal News and Analysis

August 06, 2020

Subscribe to Latest Legal News and Analysis

August 05, 2020

Subscribe to Latest Legal News and Analysis

Despite the Coronavirus, the ASA is still doing business as usual

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 stereotyping/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.

Fashion ads

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.

Missguided

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.

PrettyLittleThing

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.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 126

TRENDING LEGAL ANALYSIS


About this Author

Carlton Daniel Intellectual Property Attorney Squire Patton Boggs London, UK
Partner

Carlton Daniel advises on intellectual property rights, commercial contracts and consumer regulatory law. He handles both contentious and non-contentious matters.

Carlton has a particular focus on providing advice to clients in the advertising, marketing and media sectors, and also to businesses operating in the food and drink, retail, automotive and tech sectors.

Intellectual property rights: Carlton has significant experience advising on the exploitation and protection of trade marks, designs, copyright, databases, confidential information and patents. As...

44 20-7655-1026
Jack Blakey Intellectual Property & Technology Attorney Squire Patton Boggs London, UK
Associate

Jack Blakey is an associate in the Intellectual Property & Technology Practice Group, based in London. Jack’s experience covers both contentious and non-contentious commercial and intellectual property matters, as well as commercial contracts, licensing, confidentiality, data compliance and advertising.

Jack has spent time at our Brussels office and undertaken a secondment at an FTSE 250 company.

He is a frequent contributor to the firm’s Sports Shorts blog and Global IP & Technology Law Blog.

44-207-655-1554