When it comes to great PR, Iceland unintentionally hit pay-dirt with its powerful Rang-Tan Christmas advertisement. Although the clip was banned by Clearcast (the agency responsible for vetting advertisements), it was viewed over 3 million times, within 24 hours of going viral.

Not only has the banning of the advertisement been a boost for Iceland, but it has also highlighted an important environmental issue, the destruction of native environments for palm oil. According to The Guardian, habitat loss in countries such as Malaysia – a major global producer of palm oil – has contributed to the orangutan now being classified as critically endangered.

Iceland’s Rang-Tan advert came at just the right time. The environment crisis, having been ignored for generations, finally has a champion – the Millennials. Often written off as narcissistic, lazy snowflakes, accusations which are wholly debunked by research, Millennials have quickly taken up the environment challenge vigorously and suddenly concepts such as veganism, plastic-free, and clean energy have strolled out of the ‘lunatic-leftie’ fringe and hit the mainstream. Suddenly, people and the media care which companies are offering sustainable goods (Iceland is the first major supermarket to remove palm oil from its own-brand products) – so banning the advert has been a blessing in disguise.

So, how did an advert with such a noble purpose, find itself on the wrong side of censors?

 

Who regulates TV advertising?

The Advertising Standards Authority (ASA) is responsible for the regulation of broadcasting (via the Office of Communications (Ofcom)). In addition, individual sector-specific codes of practice are administered by trade associations.

Broadcast advertising refers to TV and radio advertisements licensed by Ofcom. This includes teleshopping, content on self-promotional television channels, television text and interactive television advertisements.

The BCAP Code

The BCAP Code aims to ensure advertisements are legal, decent, honest, and truthful. Further, they should not mislead or cause serious or widespread offence or harm, especially to children or the vulnerable.

Under the Code, all those behind marketing communications, including advertising, must consider their responsibility to consumers and the wider society, and respect the principles of fair competition.

Advertisements must be lawful, and not encourage unlawful behaviour. For example, an advertisement for liquor should not show an underage drinker, and car adverts should not entice speeding.

There should be no misleading of the consumer when it comes to broadcast advertising. The advertisement needs to contain all the information required by the consumer, so they can make an informed decision. This is why radio adverts concerning special offers often have a rushed dialogue at the end which goes something like “Offer available until 21st November. Terms and conditions apply”. ‘Puffery’ is an exception to the misleading rule and refers to claims which are so outrageous they could not and should not be taken literally; for example, we all know Red Bull will not give you ‘wings’ and saving money at MoneySuperMarket.com is unlikely to turn a hefty builder into a fabulous pole dancer.

Broadcasters are charged with ensuring any advertisement’s they air, comply with the spirit and aims of the BCAP Code. This is where Clearcast comes into play.

 

How does Clearcast review and approve advertisements?

Clearcast is owned by six of the UK’s largest commercial broadcasters, including ITV, Channel 4, Channel 5, and BSkyB. These broadcasters and others rely on Clearcast to ensure the advertisement’s they screen comply with the BCAP Code.
Clearcast is not a regulator, therefore cannot create nor enforce rules. However, if an advert is deemed unacceptable by Clearcast, it will be consigned to the marketing dustbin, unless it can be edited, as no network will air it. To avoid such an occurrence, advertising agencies usually submit pre-production scripts (including storyboards and substantiation) to Clearcast prior to incurring any significant expense related to the production of a TV commercial.

Not all adverts approved by Clearcast automatically comply with the BCAP Code.

 

Why was the Iceland advertisement banned?

The Rang-Tan advert, in which actress Emma Thompson provided the voice-over, was actually a film made by Greenpeace in the summer of 2018. Iceland wanted to use the film to form its Christmas advertisement and promote its pledge to remove palm oil from all its brand products. Herein lies the problem. If Iceland had made the advertisement themselves, it is likely Clearcast would have approved it. However, because the advertisement was originally made by Greenpeace, it falls foul of the ban on the rules of political advertising. In the UK, all political advertisements must be labelled as such and come from political parties.

ClearCast told the press, “an advertisement contravenes the prohibition on political advertising if it is an advertisement which is inserted by or on behalf of a body whose objects are wholly or mainly of a political nature”.

This covers lobbyist organisations who seek to influence government policy, officials, or public opinion ‘on a matter which, in the United Kingdom, is a matter of public controversy’ or promotes ‘the interests of a party organised for political ends.’ That includes Greenpeace.

 

In summary

Most companies hire expert advertising agencies to produce their TV advertisements, as the capital risk is too high to be left to non-professionals (it costs around £50-100k to make a professional TV ad). Where organisations are more vulnerable to sanctions, fines, and reputational damage stemming from breaching ASA standards and regulations is in the Online sphere. Such as subject is outside the scope of this piece, but we will cover this in an upcoming article. In the case of the Rang-Tan advert, perhaps outrage should not be directed at censorship (for once) but at the use of unsustainable palm oil continuing to be used in products.

 

Tanveer Qureshi is a Legal 500 barrister, specialising in ASA compliance, business to business fraud, health and safety, food standards, civil litigation, and corporate crime. If you require legal representation, please contact directly on 020 3870 3187.

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Tanveer is a specialist in criminal and regulatory law. He has been recognised by the Times Newspaper as a legal star of the future and ranked in Legal 500 as a recommended barrister. Tanveer writes regularly on topics ranging from financial crime to regulation and terrorism law.

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