Supers problems solved

31st May 2016

Great news – our Duration of Hold calculator is back and better than ever. Check it our here.

 

One of the most popular features of our Knowledge Base, the Duration of Hold calculator is there to do exactly what its name suggests: type in the ‘super’ (on screen smallprint) that will be in your ad and find out how long it should be held on screen for. It’s just one of the tools we’ve developed to make getting on air easier. If you deal with supers, then take a look at the height of supers testcard. Also on the technical front, there’s advice on flashing images as well as a whole host of information about how the clearance process works.

 

Our new version of the calculator is no longer reliant on Java, meaning it will remain fit for purpose and easy to update as and when required. The calculator is also still available as an iOS app. Search for ‘Clearcast Ltd’ in the app store.

 

We recently ran a sold-out training course dedicated to supers; if you’d be interested in attending future events or having us come to your office to run the course, let our training team know.

 

ASA release 2015 annual report

26th May 2016

The Advertising Standards Authority has released its annual report, which includes some interesting figures. The headline news is that there were more than twice as many internet cases compared to TV cases in 2015, though TV’s reach and impact meant that it was the medium with the highest volume of individual consumer complaints.

 

The total number of complaints about TV ads remained fairly steady, down by 3% on last year, but these complaints were about fewer cases – 17% fewer to be exact. The great news is that the number of formal investigations and upheld rulings fell drastically. In 2014 there were 89 upheld rulings out of 192 formal investigations; in 2015 there were 53 upheld rulings from 112 investigations. Not all TV ads come through Clearcast; of the ads we saw there were just 39 upheld rulings out of 81 investigations. It’s worth remembering that this is a tiny fraction of the ads we clear – the vast majority are broadcast without complaint or ASA involvement.

 

The product categories with the biggest overall increases in complaint volumes this year were finance and travel. While it could be tempting to read more into this, the increases are mainly because of two high profile ads. Booking.com caused a high volume of complaints for the travel sector, and Moneysupermarket.com for finance. Neither were the subject of upheld complaints. We wrote about the Booking.com controversy over on our blog when the ASA made its ruling.

 

Alcohol has long been one of the most contentious sectors (you can take a look at our run down of the top issues here), but the number of complaints and cases has continued to fall. This shows that the proactive work we do, as well as the industry’s voluntary code of practice, are having the desired impact. It is now the 6th least complained-about sector.

 

The ASA’s full annual report is available here.

A phone, often used as a second screen

Ad Tech: Which kind of second screening is the real ‘next big thing’?

24th May 2016

By Kristoffer Hammer, Head of Business Development, Clearcast

 

Mediatel recently held a breakfast seminar on dual screening. The reports that followed declared that second screening is (almost) certainly the next big thing. So, what exactly is second screening?

 

Most of us will know second screening from (trying) to tag ads using Shazam – something I wrote about in an earlier article. Viewers will not fail to know that they are ‘second screening’ as they must actively tag the ad.

 

More subtle is the second screening using services like 4C, which will push ads as and when their client’s ads are on TV. There is a vast difference between the two services. Using the Shazam tech, the advertiser will only reach viewers that are actually watching the ad, while the syncing offered by 4C will push second screen ads to any user being in an enabled app at that time. Chances that the user has actually seen the ad are relatively low, but reports suggest that it is highly effective.

 

I think it is too early to tell which is the most effective solution.

 

There is a company that has built the infrastructure to support broadcasters’ own solutions for tagging ads using either audio or visual recognition: Telequid. Their TAAS platform makes it really easy for broadcasters and others to include syncing with their shows and ad breaks in their own apps. This has worked well for TF1 in France, which has pushed the French broadcaster to further develop its second screen services.

 

As the Telequid service includes visual recognition, it means that it can be used by pretty much any advertiser and media owner for any kind of medium. JC Decaux uses it for its apps in France and there is no reason why an advertiser could not use it to enrich the labels on its packaging. With an effective tech solution easily available, agencies don’t need to worry about the tech and instead put all its creative to designing an amazing experience. A solution like Telequid’s TAAS could solve the problem of having to use the right app at the right time; if the service is adopted across all or many popular apps, the reach could be become really interesting for advertisers. And who says that an ad syncing service needs to be linked to one app, one advertiser and one channel? Most ads are on multiple channels anyway.

 

Maybe a combination of the push and pull solutions is what could (definitely) make second screening the next big thing.

 

More on Telequid.

 

And if you want to read more from Mediatel’s breakfast seminar look here.

What does the judicial review decision mean for medical device claims?

17th May 2016

You might have spotted that Clearcast was recently successful in a High Court ruling – you can have a read of the press release here for all the gory details. While the headline news is that the Judge ruled that Clearcast decisions are not amenable to Judicial Review, the issue at the heart of the ruling is an interesting, if complicated, one that’s worth expanding on.

 

The advertiser, Diomed, was unhappy with Clearcast’s request for scientific evidence to substantiate a claim. The product in question was a Class II b medical device which had been certified in accordance with European Law by a Notified Body. Diomed put forward the argument that, given the product had been certified, no further substantiation was required.

 

Seeing as we’re here to pre-clear ads to the BCAP code, and the BCAP code states that documentary evidence for objective claims must be held by us (on behalf of the broadcasters), you could be forgiven for wondering what the fuss was about. It is, however, more complicated than that.

 

When medicines advertise (and ‘medicines’ are different to ‘medical devices’) we don’t ask for the scientific evidence for the claims. Surprised? Well, medicines have to be granted a licence by the MHRA, and this licence includes something called the Summary of Product Characteristics (or SPC; it can get quite acronym-heavy here at Clearcast towers). The SPC details the claims a medicine can make, down to the exact wording. As long as the claims in an ad for a medicine match those in the SPC, that tends to be enough for approval.

 

Furthermore, under EU regulations there are only certain health claims which can be made by food products. There’s a list, albeit a long one, breaking down which ingredient can make which claims, and what the threshold is for making it. An ad could say a food product is “good for you” if the product contains the requisite amount of vitamin D and the ad includes wording along the lines of “Contains vitamin D which contributes to the maintenance of normal bones.” We wouldn’t need to see scientific evidence relating to this particular product and bone maintenance. Unlike with claims for medicines, there is also a small degree of flexibility with the wording of claims.

 

Given that we don’t need to see scientific evidence for these kinds of claims for medicines and foods, it becomes slightly more understandable that there’s confusion about why medical devices are treated differently. There are a few reasons why, but the most important are that the European Medical Devices Directive is silent on advertising and therefore the ASA treat these products differently.

 

In the heat of copy clearance (and it can get pretty heated!) it’s often forgotten that Clearcast doesn’t just interpret and apply the BCAP code willy nilly; Clearcast’s role is to predict the ASA’s interpretation of the Code. So the reason that an SPC is enough to substantiate a claim in a medicine ad is because we know that’s what the ASA think. And similarly, when looking at claims for medical devices it was apparent that, for the ASA, the mere fact of certification by a Notified Body has not historically been enough in and of itself to justify claims (see for example this January 2016 ASA ruling on Enzymatica AB). Therefore Clearcast wouldn’t be able to approve a claim on that basis.

 

There are other factors as well but at the very basic level, if we are certain that an ad contains something the ASA have upheld complaints about then it can’t be approved, no matter how passionate the argument for its approval.

 

Jonathan Laury

Communications Executive, Clearcast Ltd

Press Release – Clearcast in Judicial Review Success

17th May 2016

The High Court has ruled that Clearcast’s decisions on television advertising preclearance are not subject to Judicial Review and that Clearcast was justified in requiring evidence to substantiate advertising claims even where an EC certificate had been granted. The Court confirmed Clearcast does not perform “functions of a public nature” and its decisions on advertisements are therefore not subject to Judicial Review. It also clarifies that claims for products certified under the European Medical Devices Directive are still subject to UK Advertising Codes.

 

The decision followed an application by Diomed Direct Limited who had sought to overturn a decision by Clearcast. In order to be successful Diomed had to persuade the Court that the decision of Clearcast, a private company, was subject to Judicial Review and that it had erred in its approach to clearing advertising for products regulated by the provisions of the EC Medical Devices Directive. Diomed’s application was rejected by the Court on all counts.

 

This was the first time that the question of whether a decision by Clearcast is amenable to Judicial Review had been tested and the Court made a clear ruling that it was not. The Honourable Mr Justice Stewart stated:

 

Clearcast “exercises no statutory/public law power; nor does it exercise any public law function. The fact that private arrangements are used to secure public law objectives is insufficient. … Clearcast assists with the broadcasters’ functions. If a broadcaster decided not to approve an advertisement because of a risk of an adverse finding by the ASA that decision would not be susceptible to Judicial Review.”

 

Diomed had sought Clearcast clearance for a proposed ad for its product Prevasore Everyday Lip Therapy, a Class IIb medical device. It wished to include a claim about the effects of Prevasore. Clearcast bases its decisions, as part of the preclearance service it offers of television advertising, on the UK Code of Broadcast Advertising (BCAP Code) and rulings made by the Advertising Standards Authority (ASA). The ASA had made clear in several prior rulings that it did not believe that the Medical Devices Directive harmonised the law relating to the advertising of medical devices and that the ASA assessed such marketing communications in the UK against the Advertising Codes. Based on the BCAP Code, the expected approach of the ASA and the assessment of an independent medical dermatologist, Clearcast asked for substantiation to support the Prevasore claim.

 

Diomed argued that since submitting the ad to Clearcast they had received EC certification for Prevasore; this had cleared the use of the claim on the packaging and therefore they should be able to include the claim in TV advertising without further substantiation. In view of previous ASA rulings which Clearcast felt were clear on this point, Clearcast disagreed and therefore was unable to recommend the submitted advertising which included this claim for broadcast on television.

 

Diomed applied to the Court for permission to apply for Judicial Review in January 2016. They raised five grounds, four of which centred on arguments that EU Law rendered additional scrutiny of claims unlawful or discriminatory with the fifth ground being based on freedom of expression. In a written decision, the Court rejected each of these arguments:

 

  • Diomed argued that the effect of the Medical Devices Directive was to harmonise the regulation of the performance of medical devices and that EU law does not permit claims about the performance of medical devices to be subjected to further regulatory approval. The Court rejected this argument. The Court held that Clearcast only provided advice on the ASA’s likely position. Clearcast’s understanding is that the ASA does not regard the grant of an EC certificate in itself to be sufficient and requires evidence. The Court stated that in any event, Clearcast was not bound by the provisions of the Medical Devices Directive.

 

  • Diomed argued that Clearcast’s policy discriminated between certified medical devices (for which substantiation is required in the clearance process) and certified medicines and foods or food supplements in respect of which health or nutrition claims are made. Clearcast’s position was that this difference in approach followed the decision making practice of the ASA and reflected the fact that the EU regime is different for these categories. The Court agreed with Clearcast, stating that “Unlike in the case of medical devices, the ASA’s previous decisions on medicinal products/food supplements disclosed no comparable risk relating to performance claims for those products for which authorisation has been obtained under the Medicinal Products Directive or the Foods Regulations. ASA has basis for taking this view having regard to Article 87(2) of the Medicinal Products Directive and Article 10(1) and 20(2)(c) of the Foods Regulations.” The Court went on to rule that in any event, the grant of the EC certificate after Clearcast’s finding that the claims for Diomed’s product were unsubstantiated was insufficient to deal with the points raised by Clearcast, such that there was objective justification for it to continue to require them to be addressed.

 

  • Diomed argued that Clearcast’s decision (refusing to accept the conclusion of a notified body certifying under the Directive as sufficient to substantiate the Prevasore claim) was disproportionate and/or irrational. The Court ruled that there was no arguable irrationality based on the points above and the assessment by Clearcast’s independent dermatologist.

 

  • Diomed argued that Clearcast’s decision on this claim breached the obligation in Article 4 of the Medical Devices Directive not to create any obstacle to the placing on the market of devices bearing the CE marking indicating they have been assessed for conformity in accordance with that Directive. The Court ruled that Clearcast is not bound by this Article, not being an “Emanation of State”. The Court further stated that it is not arguable that Clearcast has created any obstacle to the placing on the market or the putting into service of Diomed’s product.

 

  • Finally, Diomed argued that Clearcast’s decision on the claim unjustifiably interfered with the Claimant’s commercial free speech rights under Article 10 ECHR. The Court rejected this argument on several counts: that Clearcast was not a public authority pursuant to section 6(iii)(b) of the Human Rights Act 1998, Clearcast did not undertake “functions of a public nature”, the decision did not materially interfere with Diomed’s rights under Article 10(1) and in any case the decision was not to recommend the ad for broadcasting without Diomed providing appropriate material substantiating the claim. The Court ruled that any interference was proportionate.

 

Chris Mundy, Managing Director of Clearcast, said “We welcome this ruling which confirms that, in providing Broadcasters with copy clearance advice, we do not exercise statutory or public law power and are therefore not subject to Judicial Review”.

 

Niamh McGuinness, Clearcast’s Head of Copy Clearance, said “We work closely with advertisers and agencies to get compliant ads to air. It is disappointing that Diomed applied for permission to have our decision overturned as the rulings from the ASA on medical devices are very clear, however I’m pleased that the Court has ratified our approach”.

 

Notes

 

  • Owned by the UK’s four largest broadcasters, Clearcast are experts in advertising compliance and work with Advertising Agencies and Advertisers to get their ads to air by ensuring they won’t mislead, cause harm or offend.

 

  • Clearcast provide a range of services beyond copy clearance that provide a backbone to the audio-visual advertising industry.

 

  • Clearcast were represented by Olswang LLP. The barristers were Brian Kennelly QC and Hanif Mussa from Blackstone Chambers.

Ad Tech – Is Augmented Reality Getting Useful?

10th May 2016

By Kristoffer Hammer, Head of Business Development, Clearcast

 

Last time on our ad tech blog I discussed opportunities for advertisers to make their campaigns interactive using Shazam’s audio and visual recognition technology. This week I am turning to Augmented Reality.

 

Augmented Reality (AR) has for a long while been lots of fun, albeit mainly for those REALLY interested in these kinds of things (fellow ad tech geeks?). Blippar is probably the best known AR app, even cropping up at the Rugby World Cup last autumn; you could check your ticket using the Blippar app and it would virtually show you your seat in the stadium alongside other match day info.

 

Blippar has been used for TV ads too. Channel 5 used it on a few occasions, where you simply held up your phone’s camera to the screen in order to enter competitions for film premiere tickets. But it is really when it comes to still images that the power of AR is most striking.

 

The new app Blippar launched in December makes it a visual browser – it recognises everyday items and gives you more information about them. Point your camera at food, film posters, animals, people or crowds and the app will tell you more about it, provide links to related articles and more besides. Now that deep learning is producing meaningful and accurate results, this is the kind of service that will no doubt grow in importance and increasingly be used by consumers.

 

Blippar has always seemed to work really well, but my test of the new features shows just how daunting it is for an app to recognise anything. When pointing Blippar on my shoes, it offered articles and videos about dogs. Now, that might tell you more about my shoes than Blippar …

 

With advertising being at the heart of the original service, it will be interesting to see how advertisers can embrace the opportunities with the deep learning. Will the Clarks website be pushed when Blippar finally recognises my shoes?

 

Blippar at TechCrunch explaining the Wikipedia of the Real World

Broadband price claims

04th May 2016

UPDATE

 

In January we published an article on forthcoming changes to how broadband pricing should appear. The ASA have today announced that these changes will come into force on 31st October rather than the end of May. You can read the original article below.

 

There have also been high-profile questions about the way broadband speed claims are presented. We’ll be keeping an eye on any developments, but so far no changes have been announced.


ORIGINAL BROADBAND PRICING ARTICLE

 

The ASA and Ofcom have today announced the results of their research into the clarity of broadband pricing. You can read their press release here.

 

The current practice, in place since a 2012 ruling, allows a line rental price to appear alongside, but separate from, the ‘headline price’ for broadband.  Any further one-off costs, like set-up fees, may be included in the supers. Similarly the contract length can be included in the supers.

 

Although the ASA have yet to offer a definitive stance for how pricing should appear in future, the recommendation for now is:

  • line rental should no longer be separated out – up-front and monthly costs should be all-inclusive
  • greater prominence should be given to contract length and post-discount pricing
  • greater prominence should be given to up-front costs

 

These changes will come into place as of Monday 30th May. For the time being keep your eyes peeled on the ASA website for further recommendations. We’ll be working with advertisers and agencies to ensure ads we clear for transmission after 30th May comply with the new recommendations.

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Gender stereotype images of male and female torsos

ASA Launch Gender Stereotyping Review

03rd May 2016

The Advertising Standards Authority has announced a review of public opinion on gender stereotyping in ads. You can read their full announcement here. It’s clear that this has a broad focus on issues around gender stereotyping, and includes body image and gender specific marketing to children.

 

This is an issue which has been increasing in prominence in the media in recent years, and not just in the UK. Indeed, Clearcast recently hosted an international training event where Elisabeth Trotzig from Sweden’s Reklamombudsmannen revealed that more than half of all ad complaints in Sweden are about portrayal of gender.

 

Despite this surge in media interest, there haven’t been many high profile UK investigations into gender portrayal over the last few years. That’s not to say there haven’t been any; around Christmas 2012, there were a number of supermarket ads where mums were highlighted in a variety of ways. An ASDA ad featured the line ‘Behind every great Christmas, there’s mum…’ coupled with visuals of the mum carrying out all the Christmas prep. It ended up as the 3rd most complained about ad of the year with over 600 complaints in total. The complainants objected to the ad on the grounds that it reinforced outdated stereotypes, may cause offence to single fathers or men who played a primary domestic role and could be distressing to children who had lost their mothers. The complaints were not upheld.

 

The complaint response from ASDA centred around consumer research they’d undertaken, showing that their representation of Christmas chimed with their customers. Advertisers and agencies spend a lot of time and money on consumer research. It’s noteworthy that in ads for cleaning products, for every Barry Scott there are a number of women scrubbing kitchens or floors. Is this because of tired gender stereotypes or because consumer research has played a part in the ad’s genesis?

 

There are of course huge success stories from recent ads which have challenged or overturned gender stereotypes. Sport England’s This Girl Can is probably the highest profile example, but by no means the only one. Pot Noodle and Money Supermarket have attracted both acclaim and complaints for their work featuring men taking on non-traditional roles.

 

There have been headlines recently about body image in ads, with upheld rulings against the Velform Miniwaist and a non-broadcast Gucci online ad. Plainly this is an area which the ASA are already aware of and taking action on – whether the review shows their current interpretation is in step with public opinion will be very interesting.

 

All in all, gender issues seem set to dominate the agenda for the foreseeable future. Whether this leads to a change in ads due to ASA involvement, or organically through brands and agencies undertaking their own research and putting those findings into practice, remains to be seen.