|
Product placement will be allowed in certain types of TV programmes for the first time in the UK from 28 February 2011. On the face of it, this should be a shot in the arm for cash-strapped producers and commissioning broadcasters. But there is a maze of new rules to navigate.
Many are unsurprising, such as bans designed to protect public health – a throw-back to the days of the ‘80s when Superman patrolled the streets of Metropolis, with his zero-tolerance approach to the temptations of tobacco. Others, of course, are less obvious – and so all the more relevant for producers and broadcasters. This article charts those backwaters.
Background
In March 2010 Parliament decided to relax the ban on product placement. In December 2010 Ofcom published the rules that will govern which types of product can be placed, which genres of programmes are permitted and how the products can be placed. The rules are set out in a new Section 9 of Ofcom's Broadcasting Code (Code).
The Code reflects the changes made to the Communications Act 2003 by the Audiovisual Media Services (Product Placement) Regulations 2010 (Regulations),1 which implemented the Audiovisual Media Services Directive (Directive).2
Although Ofcom has published some guidance, it is unclear how certain rules will be applied in practice.
Summary of the rules
From 28 February 2011 product placement will be allowed in films, series made for television, light entertainment shows and sports programmes. It will, however, be prohibited in all children's and news programmes and in UK-produced current affairs, consumer affairs and religious programmes.3
The rules prohibit the placement of tobacco products, placement by companies who mainly focus on manufacturing tobacco products, and the placement of medical products and treatments available only on prescription.4
There are further prohibitions5 on the placement of alcoholic drinks, gambling (gaming and betting, spread-betting and National Lottery products), foods or drinks that are high in fat, salt or sugar (HFSS products)6, medicinal products, baby milk, electronic or smokeless cigarettes, cigarette lighters and papers, pipes intended for smoking and any product, service or trade mark which cannot be advertised on television, such as weapons and escort agencies.
The BBC cannot accept most types of commercial revenue in relation to services funded by the licence fee, so the bulk of its programmes will not be able to contain product placement. The BBC’s UK commercial services (which are operated through BBC Worldwide) will be subject to the same rules on product placement as other broadcasters.
In line with principles prescribed by the Directive, product placement must not impair a broadcaster's editorial independence and must always be editorially justified. In particular, product placement must not take precedence over a programme’s editorial needs, and programmes cannot be created or distorted so that they become vehicles for the purposes of featuring products.
On 14 February, Ofcom launched its product placement logo, which broadcasters will be required to use to signal to viewers when a UK-produced programme contains product placement. The logo will need to appear for a minimum of three seconds at the start and end of a programme, and at the return of a programme following any advertising breaks. Broadcasters who intend to broadcast programmes containing product placement within the period from 28 February to 31 August 2011 will also be required to broadcast audience awareness campaigns and/or announcements to make viewers aware of the meaning of the universal logo.
Definition of product placement
Product placement is defined in the Code as "the inclusion in a programme of, or of a reference to, a product, service or trade mark where the inclusion is for a commercial purpose, and is in return for the making of any payment, or the giving of other valuable consideration, to any relevant provider or any person connected with a relevant provider, and is not prop placement". Accordingly, references in this article to “product” should be understood to include a service or a trade mark.
The guidance accompanying the new Section 9 does not elaborate on how “other valuable consideration” will be interpreted, but previous decisions made by Ofcom indicate that it is likely to take a very broad approach.
For example, in May 2010, Ofcom found that CNN YouTube Debate on Climate Change, a current affairs programme broadcast on CNN International in December 2009, breached the (then applicable) outright ban on product placement. No money changed hands between the broadcaster and Google, but, in return for CNN’s agreeing to display and integrate “prominently” a range of visual references to YouTube within the programme (including its branding and logo), Google agreed to promote the programme on the Google and YouTube websites and to provide the YouTube platform for viewers to submit questions by video. Were this programme to have been broadcast after 28 February 2011, it would still breach the Code, because product placement in current affairs programmes will continue to be prohibited. But Ofcom’s decision gives a clear steer on how broadly it interprets “valuable consideration”.
If producers enter into product placement arrangements that involve “valuable consideration” (whether monetary or otherwise), they will need to ensure that they comply with the product placement rules, including the need to signal clearly to viewers that the programme contains product placement.
Ofcom’s decision on the CNN programme was silent on whether the references to YouTube within the programme resulted in undue prominence, but it is safe to say that contractual agreements to feature a product “prominently” are best avoided. Ofcom can (and does) call for copies of contractual documents when it is investigating potential breaches of the Code.
HFSS foods and drinks
The outright ban on the placement of HFSS products extends further than the regime which applies to the advertising of HFSS products. Adverts for HFSS products on UK television are permitted, but there are restrictions, in particular, on their scheduling: they cannot be advertised in or next to programmes commissioned for (or principally directed at or likely to appeal particularly to) audiences below the age of 16.
Despite the outright ban on placement of HFSS products, it is possible in certain circumstances to place a trade mark that is associated with HFSS foods or drinks. For example, if the trade mark is synonymous not with a specific HFSS product but with a range of products sold under that name, it should be possible to place the trade mark (subject to compliance with other product placement rules). This should assist “umbrella” brands, such as Kraft or Unilever, whose product ranges feature some HFSS products, but also numerous non-HFSS products.
The Committee of Advertising Practice has issued guidance on differentiating HFSS-product adverts from brand adverts.7 This should assist producers in determining whether they can place a trade mark that is associated with a HFSS product.
Undue prominence
Producers must ensure that references to placed products are not unduly prominent.8
In avoiding undue prominence, editorial justification and context are key. Ofcom’s guidance states: “The level of prominence given to a product … will be judged against the editorial context in which the reference appears. A product that is integral to a scene may justify a greater degree of product exposure … However, where a product is used as a set prop, care should be taken to avoid close-up or lingering shots. Spoken references to a product … generally assume a greater degree of prominence … although this is a very rough rule of thumb.”
Ofcom emphasises that: “Storylines, themes and narratives that appear to have been constructed for the purpose of giving exposure to placed products … with a lack or absence of sufficient editorial justification will be more difficult to justify as duly prominent. However, where a storyline or theme fits comfortably with the programme’s understood character, issues of undue prominence (and also promotion and editorial independence) may be less likely to arise.”
For example, product placement is likely to considered unduly prominent in a reality TV series in which participants are required to perform tasks that feature a placed product strongly or frequently, or in a drama series featuring improbable or contrived character/plot development resulting from product placement.
Ofcom recognises that the purpose of product placement is the exposure of products in programmes in return for payment or other valuable consideration, and that the existing concept of undue prominence will need to develop and evolve to accommodate it. Until the dust has settled, however, and Ofcom has made some decisions which show how the new rules will be applied in practice, producers will have delicate judgment calls to make on placed products, including how to place products in an appropriate context and how often a product can be referred to in a programme.
Promotional references
Producers must also avoid making promotional references to placed products.9
Ofcom’s guidance sets out a non-exhaustive list of factors that are likely to be considered promotional:
|
|
encouragements to purchase (whether direct or indirect); |
|
|
advertising claims; |
|
|
price or availability information; |
|
|
references (either explicit or implicit) to the positive attributes or benefits of the placed product; |
|
|
slogans associated with the placed product; and/or |
|
|
endorsements (whether explicit or implicit). |
Positive references to placed products, such as a comment on the unmatched nature and quality of a product, are likely to be perceived as promotional. Multiple references to a placed product (which cannot be justified editorially) are also likely to be viewed as promotional.
Ofcom interprets “promotional references” broadly. In November 2010 it found that a series broadcast in June 2010, called Family Food Fight with Flora, breached the Code because, among other things, there were repeated and frequent negative references in the series to butter and explicit and visual references to using low-fat spread as an alternative. There were no explicit references to Flora in the body of the programme, so the references that were found to be promotional (and therefore in breach of the Code) were generic.
Reporting requirements
Ofcom intends to request annual data on all net revenue that broadcasters, and the producers they commission, have generated as a result of product placement. It intends to compel broadcasters to provide this information under Sections 4(1)(c) and 19 of the Broadcasting Act 1990. Independent producers should therefore expect to see new conditions in commissioning contracts which will require them to provide information on the revenue (net of any production and/or agency fees) that they have generated from product placement arrangements.
This is likely to be a sensitive issue for broadcasters and producers alike. Broadcasters will be concerned that Ofcom may use the data to initiate investigations into particular programmes or series that would otherwise have been left alone, while independent producers are likely to be concerned that broadcasters may use the data in their fee negotiations for future commissions, whittling away budgets that may already be very tight.
Ofcom has not explained why it intends to start requesting annual data on revenue generated from product placement. Perhaps it is because (as broadcasters may fear) it intends to use it as an additional tool to assess whether to launch investigations into particular channels, series or programmes – or because, quite simply, no-one knows how much additional revenue (if any revenue of significance) product placement will actually generate for the industry. Ofcom has estimated that annual income from product placement could be between £25 million and £30 million after five years. Others have put the potential return as high as $140 million, while, at the other end of the spectrum, some have speculated that product placement will not lead to any overall increase in revenue for programme makers and merely cannibalise existing revenue sources, such as sponsorship and advertising. Given the widely diverging views on the likely economic impact of product placement, it will be interesting to see any data published in due course.
Conclusion
The U-turn made by the last Government in deciding to relax the long-standing outright ban on product placement in the UK was dramatic. So the changes to Ofcom’s Code, which have been quite some time in the making, represent a sea change. In the circumstances, it is almost inevitable that there will be teething issues in applying the new rules. The relaxation of the ban should, however, address the previous anomaly between imported and domestic programming, and should provide a useful alternative source of programme funding.
Ofcom intends to provide regular updates and guidance while the product placement market establishes itself. No doubt a body of Ofcom’s decisions on product placement will build up over time. Until then, however, producers would be well advised to err on the side of caution: where the line in the sand will be drawn on certain rules is not yet clear.
Some years down the line, the rules on product placement may well be further relaxed by Europe and/or by the UK Government – perhaps as viewers become acclimatised to seeing products placed in TV programmes, and traditional broadcast media decline in significance as viewers shift to other platforms.
For now, Clark Kent is still on community policing duties.
Eleanor Steyn and Claire Hutchison
1 SI 2010/831
2 Audiovisual Media Services Directive 2010/65/EC
3 The ban on product placement in children’s programming stems from the Directive, while the other prohibitions have been added by the Regulations.
4 These prohibitions stem from the Directive.
5 Under the Regulations.
6 Those food or drink products that are assessed as high in fat, salt or sugar in accordance with the nutrient profiling scheme published by the Food Standards Agency (FSA) on 6 December 2005. Information on the FSA’s nutrient profiling scheme is available on the FSA website at: www.food.gov.uk/healthiereating/advertisingtochildren/nutlab/nutprofmod.
7 http://www.cap.org.uk/Resource-Centre/Advice-and-guidance/Broadcast-guidance-and-help-notes/Advertising-guidance-notes/Advertising-guidance-3.aspx
8 Rule 9.10.
9 Rule 9.9.
<< back to articles & bulletins
|