Bikinis and burgers: advertising and your business

Have you been considering using bikini-clad models on horseback to advertise your business or products?  Who could forget the furore when various members of the public complained to the Advertising Standards Authority (“the ASA”) about advertisements from a burger company which employed women in bikinis riding horses and even showering together to appeal to their self-professed target market, the “young hungry male.”

The complaints were upheld and the advertisements were pulled.  Lawyer James Johnston looks at the implications for your business advertising.

For anyone in business the highly-publicised ASA decision is a reminder that advertising is not a free and unconstrained medium.  It is regulated and restricted by Codes of Practice which are enforceable by the public via a complaints process.

You need to be careful how you advertise your products or services so they are not misleading or somehow inappropriate in content (as judged by prevailing community standards).  Anything that employs sexual behaviour in a manner which is likely to cause widespread offence or to promote the sale of unrelated products or services is a breach of the Codes.

Some other examples of inappropriate content in advertisements include:

• A financial institution whose brochures to students advertised pulling off an “Aussie bank heist” and were seen to encourage dishonest behaviour by signing up for bank accounts in order to receive promotional gifts and then closing them down straight away.
• A promotional text message that was seen to be encouraging young people to obtain material their parents have deemed unacceptable without their parents knowledge. The advertisement actually encouraged obtaining “…songs you know your parents would disapprove of…”

The ASA acts as a gatekeeper of advertising decency.  It is a representative body that develops, and monitors compliance with, Codes of Practice.  Compliance with the Codes is judged primarily in terms of an advertisement’s impact on the type of person likely to be exposed to it and, an investigation is triggered by a consumer complaint.

The Code outlines 12 basic principles; for example, ads must not offend our sense of decency or promote violence, they must be truthful, they must not denigrate other businesses, or play on fear or superstition.  The ASA website (www.asa.co.nz) provides a downloadable PDF version of the Codes for further detail on each.  Also on the site are past decisions from the ASA which indicate the types of advertising that amount to breaches of the Codes.

Another requirement under the Codes is that advertisements not mislead or deceive consumers.  There have been many examples of complaints relating to misleading consumers in advertising, some of which have been commented on by the writer in another article on this website.  Those complaints were made to the Commerce Commission on the grounds that the companies, most memorably the company promoting Ribena, had breached the Fair Trading Act 1986, rather than the ASA Codes.

While the focus of the Fair Trading Act is primarily on misleading and deceptive advertising and the ASA Codes are considerably broader, there is a great deal of overlap between the two.  The key message is that together they cover a broad range of behaviour and, whichever vehicle is used for a complaint, the impact can be disruptive and damaging to a business.

Being self-regulated, the decisions of the ASA are not legally enforceable and do not involve fines or other punitive outcomes, as the decisions of the Commerce Commission can.  However all major media representatives belong to the ASA and if the ASA Complaints Board finds against your ad, the media will not accept it for future placement.  You could be stuck paying for the production of a new advertisement or campaign that can not be placed, and/or the potential damage to your brand or reputation which can arise from a negative finding.

There are four simple tips that can help you to avoid complaints and/or minimise their effect on your business:

1. If you retail from a website you must ensure that the items you advertise on your website are still for sale. That is, that you haven’t sold out since listing them;
2. Ensure that you don’t exaggerate the products that you sell (i.e. quality, availability, performance, features);
3. Don’t oversimplify the description of your product to achieve a catchy jingle or phrase. If it misrepresents your product you could be held to account.
4. If you use an advertising agency to produce advertisements for you, ensure you include a provision in the service agreement that requires them to comply with advertising codes or statutory requirements. Also make provision for the consequences of non-compliance. For example, require that the ad agency pay all costs (direct and indirect) of the failure. These costs might include production of a replacement advertisement, legal costs if any, and any costs associated with loss of profit from brand damage if there is any.