On 20 December 2010, Ofcom published statements in respect of
the Broadcasting Code Review concerning product placement and
commercial references on television programming, and paid-for
references to brands and products in radio programming.
As part of the implementation of the Audiovisual Media Services
Directive in the UK and following a recent Ofcom
consultation, new rules are to be introduced to allow product
placement in UK television programmes, and references to brands or
products in radio programmes. However, although removing the
prohibition on product placement, the new Broadcast Code will still
contain a number of restrictions, including in respect of products
that can be placed, and the types of programme in which product
placement will still be prohibited. The new rules will largely
reflect the proposals set out in the Ofcom consultation.
The new rules relating to radio programming
took immediate effect, having been incorporated into Section 10 of
the new Broadcasting Code, which was also published on 20 December
2010. The new rules relating to television
programming will come into force as a new Section 9 to the
Broadcasting Code on 28 February 2011. Until that date, commercial
references in television programmes must comply with Sections 9 and
10 of the Broadcasting Code (as currently in force). Accordingly,
product placement on UK-produced television programmes will not
take place until the new rules come into force.
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On 20 December 2010, Ofcom published its Broadcasting Code Review statements concerning product placement and commercial references on television programming and paid-for references to brands and products in radio programming. Click here.
Radio programming
The new rules relating to radio programming took immediate
effect, having been incorporated into Section 10 of the new
Broadcasting Code (the "Code"), which was published on 20
December 2010.
As a result of the Code, radio stations now have discretion to
integrate paid-for, promotional references to products or brands
into programming, provided that such integration has been made
clear to listeners. However, Section 10 of the Code prohibits
commercial references in or around news bulletins and programmes
aimed at children. Ofcom has highlighted the importance of
transparency of commercial arrangements, so as to ensure consumer
protection. Accordingly commercial arrangements must be
appropriately signalled to listeners, and spot advertising (i.e.
adverts in commercial breaks) must be kept separate from commercial
references in radio programmes.
Television programming
The new rules relating to television programming will come into
force on 28 February 2011, when a new Section 9 will be implemented
into the Code. Until that date, all commercial references in
television programmes must comply with Sections 9 and 10 of the
Code (as currently in force) and accordingly, product placement on
UK-produced television programmes is still prohibited.
From 28 February 2011, product placement (which will be defined in
the Code as the "inclusion in a programme of, or reference to,
a product, service or trade mark, for a commercial purpose, in
return for payment or other valuable consideration to any relevant
provider or any person connected with a relevant provider, and is
not prop placement") will be permitted in certain types of
television programmes.
The new Section 9 of the Code will permit product placement in television programmes falling within the following genres: films (and single dramas), documentaries, television series (including soap operas), entertainment shows and sports programmes. However, product placement will not permitted during children's programmes (i.e. programmes "for viewing primarily by persons under the age of sixteen") or news programmes. Additionally, as a result of concerns raised in Government consultations on this matter, product placement will remain prohibited in current affairs programmes, consumer advice programmes and religious programmes that are produced under UK jurisdiction.
The new Section 9 of the Code also restricts the types of
products that can be placed on television programmes. The placement
of tobacco products and prescription medication is banned in all
programmes. Certain products and services that cannot be advertised
on television – such as weapons and escort agencies
– are also banned from product placement. In respect of
programmes produced under UK jurisdiction, alcohol products,
gambling products, foods or drinks that are high in fat, salt or
sugar, medicines, and baby milk (including follow-on formula)
cannot be used in product placement.
The 2011 revision to the Code implements the explicit requirements
of the Communications Act 2003, which was amended to implement the
provisions of the Audiovisual Media Services Directive and Ofcom
has emphasised that product placement must not compromise the
editorial independence of broadcasters. The Code explicitly
requires that advertising and editorial content must remain
separate, and accordingly provides that references to placed
products must not be unduly prominent or promotional. In addition,
product placement must be justified and must not compromise
editorial independence; for example, a story line must not be paid
for. The new Section 9 of the Code also introduces revised rules on
sponsorship of television programmes in light of the changes to
product placement rules, and allows sponsors to use product
placement in programmes they are sponsoring.
To ensure transparency and that viewers are aware of the use of product placement, a logo must appear on the screen at the beginning and end of a programme that contains product placement, as well as when the programme recommences after commercial breaks. The logo should appear for at least three seconds, according to Ofcom guidance. Prior to 28 February 2011, Ofcom will issue the universal logo which will be used to signify the use of product placement, and to alert consumers further to the use of product placement, commercial television stations have also been asked to run awareness campaigns.
Comment
Ofcom has stated that the new rules "will enable commercial
broadcasters to access new sources of revenue, whilst providing
protection for audiences". Although the value of the changes
to the rules in unclear, one product placement company has
estimated that product placement could become worth at least 5% of
the total UK TV advertising market, as is the case in the US.
However, the new rules for radio programming have already attracted
criticism for preventing sponsored news bulletins in an integrated
market where internet radio providers do not face the same
restrictions. It will be interesting to see how the television
programme product placement rules are received by both broadcasters
and consumers when they enter into force on 28 February 2011, and
in particular, whether the new Section 9 of the Code will
sufficiently balance the need for transparency and editorial
independence with the benefits to corporate entities and
broadcasters of the use of product placement.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 18/01/2011.