One of the most talked about adverts of 2018 depicts a cartoon orangutan causing havoc in a young child’s bedroom, to raise awareness of the use of palm oil and the destruction that is being caused in rainforests as a result.

The video itself was originally produced by Greenpeace, however it was Iceland that chose to use the advert in its Christmas marketing campaign, following their commitment to stop using palm oil in any products or packaging they sell earlier in 2018.

Why was it “banned”?

Before making it to air on TV, adverts are assessed to verify that they conform to certain criteria and in this case the criteria related to political advertising.

There are several ways in which an advert may be considered “political” in the eyes of both the law, in the form of the Communications Act 2003, and the regulators, the Advertising Standards Authority (ASA). This can be obvious: supporting a political party or attempting to influence an election, but it may sometimes be more subliminal such as advertising a matter which attempts to influence public opinion on a matter of controversy.

It was concluded that the Iceland advert (“Rang-Tan”) was in breach of the ASA regulations and the law on political advertising because it was advertising “on behalf of a body whose objects are wholly or mainly of a political nature”, referring to the collaboration with Greenpeace and their political objectives.

The caveat to this was that there were no official concerns with the content or message of the advert itself; it was only pulled due to the association the advert had to Greenpeace in the first place.

Whilst Iceland made efforts to remove any link the advert had to Greenpeace, it failed to acknowledge that Greenpeace had been using the video in their own marketing prior to the supermarket chain using it for their Christmas campaign. Even though the Greenpeace logo had been removed from the video, it had been used extensively in their previous campaign.

Who vets TV adverts?

In relation to the four major broadcasters a company called Clearcast is responsible for ensuring that adverts are compliant with the law and regulations and are therefore acceptable to be shown on TV. Clearcast interpret the rules surrounding TV advertising and have no direct power to ban adverts; they simply provide the broadcasters with advice as to which adverts are compliant and which are not. If the broadcasters consider the advert to be sailing too close to the wind, politically or otherwise, they will choose not to show it.

At the end of the day, it is broadcasters that would face fines for any breach of the regulations.

What to avoid in your adverts

As a general rule, it is advisable to avoid using anything political or overly controversial in advertising campaigns; however it is not always easy to know when an advert would be considered to be “political”.

The law and ASA regulations provide for three situations where an advertisement will be in contravention of the prohibition on political advertising:

  • An advertisement which is inserted by or on behalf of a body whose objects are wholly or mainly of a political nature;
  • An advertisement which is directed towards a political end; or
  • An advertisement which has a connection with an industrial dispute.

A broad definition of what would be considered “political” in nature is also included with the above, which generally deems anything that influences or promotes certain policies or political ideals to fall under the umbrella of “political” content.

Public support has not changed the law

The Iceland advert was never officially banned. Clearcast don’t have the power to do that, and the ASA did not get involved in the case. The reason it never made it to air on TV was because the broadcasters refused to show it as a result of the links that it had.

Whilst it has garnered an immense amount of support from the public for its overtly positive message, with a petition in support of the advert having amassed nearly 1 million signatures to date, the response from Clearcast stated that it won’t change the legal position.

Advertising can be a complicated landscape to navigate, as this case shows, which is why it is always advisable to seek advice before launching any major marketing campaigns.

If you have any questions or would like advice regarding your advertising campaign, please contact Jessica O’Riordan who is a solicitor in our IP and IT team on 01392 210700 or email ip.it@stephens-scown.co.uk.