Creative Treatments Index
2.1 Accurate Portrayal of Products
2.2 Demonstration Sequences
2.3 References to Companies, Individuals, Brand Names, etc.
2.3.1 References to Living Persons
2.3.2 References to the Deceased
2.3.3 Impersonations and Caricatures
2.3.4 Testimonials
2.3.5 Fictional Playlets
2.3.6 Actors as Testimonees
2.3.7 Children as Testimonees
2.3.8 Medical Testimonials
2.3.9 Deleted
2.3.10 Denigration
2.3.11 Deleted
2.3.12 Intellectual Property
2.3.13 Ref's to Competitive Broadcasters
2.3.14 Advertising by Competitive Broadcasters
2.4 Subliminal Techniques
2.5 Superimposed Text
2.6 Flashing Images
2.1 Accurate Portrayal of Products
Nothing must be included which could give any exaggerated or misleading impression to viewers about a product or its performance.
All sequences showing products must be genuine.
Experience has shown that particular care is needed when depicting foods. Size and thickness of cut, chunkiness, volume of ingredients, fruit content, etc. must accurately reflect the contents of a standard production line tin or pack. Whenever necessary, Clearcast will request a sample of the product to compare with the visuals. Agencies are advised to see that production units are very carefully briefed.
The use of fantasy is permissible only when there is no risk of its deceiving. Where advertising is addressed to adults, misunderstandings do not often occur, but the greatest care is needed in commercials of interest to children, who are prone to take things more literally. When fantasy is used as a device to gain attention, great care should be taken to ensure the advertisement contains sufficient material showing the actual product in a real-life situation so its true nature and capabilities are clear. In the case of toys, they should always be shown in such a way as clearly to establish their true size. This should, for preference, be achieved by showing a child or at least a hand holding the product. (See also section 7.4.2 of these Notes of Guidance, Advertising and Children).
2.2 Demonstration Sequences
Demonstrations showing the use of products and 'before and after' comparisons must be genuine, accurate, fair and not misleading and should reflect products' performance in normal use. In particular, if tests or demonstrations are carried out under special conditions, this must be made clear and there should be no suggestion that similar results are likely to be obtained under normal conditions. Where there is any doubt about the accuracy of a demonstration sequence, Clearcast will request product samples and may need to witness a demonstration, in order to ensure that there is no possibility of viewers being misled, prior to approval of the advertisement.
Demonstration sequences for Direct Response advertisements must be very clear about the products capabilities since the viewer has no opportunity to inspect the product before purchase.
Because the quality of reproduction on many domestic television sets is not sufficiently precise to give a consistently fair presentation, some visual comparisons are not permissible; for example, in commercials for products for washing clothes where a performance advantage versus another product is being claimed, whiteness comparisons cannot be shown, whether the comparison is 'side by- side' or by means of a common reference point.
2.3 References to Companies, Individuals, Brand Names etc.
2.3.1 References To Living Persons
Living individuals should not normally be portrayed, caricatured, impersonated or otherwise referred to in television commercials, either in their private or public capacity, without their permission having been first obtained. However, provided that such references are not defamatory or offensive, they are normally acceptable without prior permission in advertisements for news items or features in the press, books, films, radio or television programmes about the person(s) concerned. Where a person has certain characteristics which are well known then the risk of these being found offensive by that individual is likely to be lessened. It is not Clearcast's responsibility to make such decisions, the advertiser should put forward a compelling case, backed by a legal opinion where this might be helpful, for an exemption to be granted.
In generic advertising for newspapers, etc., there is usually no need to obtain prior permission for the use of stock footage of people in the public eye, provided there is no reason to suppose that the individual concerned would object. However, if individuals so featured do object, such generic advertising must immediately be withdrawn.
2.3.2 References to the Deceased
Care should be taken to avoid any reference to a person no longer living which might offend either the dead person's surviving relatives or viewers in general.
2.3.3 Impersonations and Caricatures
The prohibition on unauthorised references to living people is interpreted very widely and extends, for example, to impersonations and caricatures of well-known persons, including impersonations of well-known voices. To fall within the prohibition, it is not necessary for there to be any likelihood of viewers supposing that they are seeing or hearing the actual person concerned; provided the parody clearly identifies an individual, his or her permission has to be sought. The same rule applies if an individual is alluded to indirectly but in such a way as clearly to identify him or her. See section 2.3.1 above for circumstances in which this may be relaxed.
2.3.4 Testimonials
Any expression of view, or statement of experience, of a real person, whether made by that person or quoted by somebody else, is regarded as a testimonial. Testimonials must be genuine, relevant to the present characteristics of the product and not likely to mislead.
Where the status of the testimonee is ambiguous it may be necessary positively to identify that person as, for example, actor, employee or relative of employees of the advertiser.
Testimonials may be used as expressions of subjective opinion but not to make or imply factual claims which are not capable of being satisfactorily supported by evidence.
Testimonials must be unsolicited; they must be from established users of the product. This does not rule out testimonials given in reply to a manufacturer's question (e.g. in market survey questionnaires), provided this is made clear in the advertisement itself.
Testimonials should not be more than three years old and evidence of a change of circumstances brought to the attention of Clearcast at any time may constitute grounds for withdrawing approval of the advertising.
2.3.5 Fictional Playlets
Where the characters in a playlet are clearly expressing, in dramatised form, the claims of the advertiser, these are not regarded as testimonials. Such playlets may, however, cause problems if viewers might reasonably believe that the situation or persons depicted in the playlet are real.
Where there is some element in a creative treatment, e.g. a documentary-style approach, which may give rise to uncertainty among viewers, it may be necessary to include some clarification, e.g. 'Based on a real event' or 'Reconstruction using actors'.
It is not possible to lay down hard-and-fast rules as to the kind of treatment which might create an impression of a testimonial as this depends so much on the atmosphere of the commercial. Use of fantasy or farce is unlikely to cause any problem of this sort.
The use of any of the following, however, may well give an appearance of reality to which the testimonial requirements would apply.
Persons who are identified, by name or otherwise, as private individuals, whose addresses are given or who are depicted against a realistic background of home, family, work, etc.
Interview situations in which people, whether named or not, are invited to express opinions or report experiences to an interviewer or direct to camera, or are responding in an apparently spontaneous manner.
Persons who are presented in a way which suggests that they are experts or have knowledge which would lend authority to their opinions.
Celebrities endorsing the product or being described as users of the product.
Named real-life settings, e.g. the office of a named manufacturer.
Testimonial letters (whether or not the writer's name is given).
2.3.6 Actors as Testimonees
Actors may not be used to stand-in for real people who have given testimony or to impersonate named individuals. They may, however, give their own genuine testimonies about products or services advertised.
Unless the artists giving testimony are celebrities, they should be clearly identified as actors or models, as the case may be, e.g. 'Helen Smith, actress'. If this identification of their professional status is not included, viewers who recall the actor appearing in, say, a play or another commercial, may reasonably have doubts about the genuineness of the testimonial.
Testimonials must reflect only genuinely held personal opinions or real experience. They should not be fabricated in return for reward. Unless otherwise stated or apparent from the context of the advertisement itself, the opinion or experience attributed to the testifier must have been formed or made prior to any approach by the advertiser. For example, an actress should not say 'I use X's soap', if X's soap has been provided specially for her in order that she may testify. It would however, be in order for the actress to say 'I was asked to try X's soap and I thought it was really kind to my skin' - provided, of course, that she confirms that this was her experience.
A signed and witnessed statement by the testifier will be required in each case. Unless there is evidence that such statements have not been sincerely given, they should be acceptable. In such cases there is no objection to actors, sportsmen, entertainers, or other celebrities who are clearly professionals receiving a fee for agreeing to associate their names with products through testimonials. Other persons should only receive reasonable expenses and/or some nominal reward for the time and trouble they have taken in participating in the making of the commercial.
2.3.7 Children as Testimonees
Since many people regard formalised testimony by children as an inappropriate degree of commercial exploitation, children may not be used in this way. There will, however, normally be no objection to children as real persons making comments about matters in which they would have an obvious natural interest.
2.3.8 Medical Testimonials
No person well known in public life, sport or entertainment, etc., may act as a presenter for a medicine or treatment.
2.3.9 Deleted
2.3.10 Denigration
Commercials, whose purpose or effect is to ridicule or disparage other products or advertisements, are not acceptable.
2.3.11 Deleted
2.3.12 Intellectual Property
Advertisers must ensure that their advertising does not pass-off other products or advertising nor infringe any third party's intellectual property rights.
2.3.13 References to Competitive Broadcasters
Anyone proposing to produce a commercial which contains any reference, however brief or incidental, to a competitor of any broadcaster with whom it is intended to place the advertising, should first check that the broadcaster is content to carry the advertising.
2.3.14 Advertising by Competitive Broadcasters
Please refer to Appendix 1 c) of the CAP (Broadcast) Code.
Advertisers, agencies and production companies should be aware that some broadcasters may not wish to carry advertisements which contain references to other broadcasters which they regard as their commercial competitors, on the grounds that such commercials indirectly publicise those competitors.
Broadcasters are free to decline to transmit any advertisement should they so decide provided that in doing so they do not exercise unreasonable discrimination.
This issue has arisen in the case where a broadcaster wishes to advertise on a competing broadcaster’s channel.
Previous direction by the Regulator has deemed that it is not unreasonable to refuse to transmit an advertisement which:
- denigrates the service provided by another broadcaster;
- refers to any specific programmes or particular type of programme broadcast on specific days or;
- specifically promotes one-off live events where the timing of such events is likely to be well known to viewers.
Generic advertising of forthcoming attractions in a menu form, or otherwise, will be acceptable provided the advertisement does not refer to specific programmes broadcast on specific days or to one-off live events where the timing of such events is likely to be well known to viewers.
2.4 Subliminal Techniques
Advertisements or images within advertisements which are of very brief duration must not be used if their use is likely to influence viewers without them being fully aware that this has been done. If an image (however brief) can be seen by viewers then it is not subliminal.
2.5 Superimposed Text
Guidance may be found in section 5.8 and Appendix 3.
2.6 Flashing Images
Guidance will be found in section 6.1.7 and Appendix 4.