MARKETING LAW : What's Allowed?

I've noticed a number of billboards around the city using scantily clad girls to promote their products. Am I allowed to do this too?

Using sex appeal to help sell one's product is not a new idea, nor an unusual one. However the New Zealand Advertising Standards Authority (ASA) imposes restrictions

Basic Principle 5 of the Code provides:

"Advertisements should not employ sexual appeal in a manner which is exploitative and degrading of any individual or group of people in society to promote the sale of products or services. In particular people should not be portrayed in a manner which uses sexual appeal simply to draw attention to an unrelated product."

Over the past few years, the ASCB has upheld complaints about a number of billboards around the country. There are two areas where you could potentially slip up: if you use sexual appeal in a manner that is exploitative or degrading to help sell your product, or if you use sexual appeal to sell an unrelated product.

To take some examples of billboards that have been deemed exploitative or degrading in the past, images of women hitchhiking in a brief pair of shorts or posing provocatively with surgically enhanced breasts have both been found to be in breach of the Code. A complaint about a liquor billboard was also recently upheld because of the manner in which it used part of the female anatomy to draw attention to the product.

You should ensure that there is a connection between the product and the image being used to sell it. For example, a billboard advertising cell phones had to be taken down because the ASCB held that there was no relationship between the cell phones and the images of the scantily clad young woman used to promote them. Similarly, the ASCB held it was a breach of the Code to advertise apartment properties for sale by using an unrelated image of a naked couple embracing.

However, if you do wish to use a billboard with sexual appeal to increase your sales, here are a couple of pointers that may help to lower the risk of a successful complaint. First, make sure that the image you use is tasteful and is not exploitative of any groups in society. You should also make sure that you suggest a link between the image that you are using and the product that you are selling. For example, the ASCB declined to uphold a complaint against a television commercial that used images of a couple kissing and removing their clothes before being interrupted by their kids. Why was this advertisement okay? Because it was advertising a hotel chain, and the image was related to the product (private hotel rooms).

Another good idea is to use humour in your advertisement. Basic Principle 6 of the Code expressly recognises that humorous and satirical treatment of people and groups of people is acceptable, so long as it does not offend against community standards and is not likely to cause serious or widespread offence. If you portray the image in a way that is light hearted, hyperbolic and amusing, and not offensive, you should be okay. The more hyperbolic the image is, the more likely it will be that it saves the billboard from being deemed exploitative or degrading, or to be using sex to sell an unrelated product. The recent advertisements for a well-known beer brand, using images of women working in a brewery, is a good example of this approach.

We're releasing an eco-friendly family vehicle in New Zealand and would like to highlight its environmental benefits. In particular, we think it produces less gas emissions than any other vehicle of its kind on the market! Can you give us the green light for our advertising promotion?

A comparative advertising claim can be a great way to set your product apart from the competition. However, the advertisement should explicitly or by implication make clear what comparison is being made, and the basis for that comparison. It should not mislead the consumer about other products or services with which comparisons might be made.

The claim that the eco-friendly vehicle produces less gas emissions than any other vehicle of its kind on the market is ambiguous and potentially misleading. The reader can't be sure what kinds of vehicles are included in this comparison. Is it all family vehicles? Or is it only eco-friendly vehicles? Or maybe it's eco-friendly family vehicles?

A recent ASA (UK) decision highlighted the ambiguity in such comparisons. EasyJet, an airline carrier, claimed that "because we operate Europe's most modern fleet, our planes emit 30 percent fewer emissions per passenger mile than traditional airlines". EasyJet had based its calculations for the "30% fewer emissions" claim on the number of passengers it could carry in its planes. Because it could carry more passengers than most other airlines, the carbon-dioxide emissions per passenger were 30 percent less. The emissions claim was not based on the fact that it operated Europe's most modern fleet as implied in the advertisement. The ASA (UK) concluded the ad was likely to be misleading.

Therefore, as EasyJet demonstrates, the basis of the comparison must be clear to the reader in order to avoid creating a misleading representation.

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