United States: British Regulator Seeks To Stamp Out Harmful And Offensive Gender Stereotypes In Advertising

Last Updated: June 8 2018
Article by Neil Austin

The wedding of Prince Harry and Ms. Meghan Markle is officially in the books.  Like many of you, I learned some interesting things about the royal couple in the media hysteria leading up to the wedding. For example, when she was eleven years old, Ms. Markle (now the Duchess of Sussex) took on a major national advertiser for its use of gender stereotyping in a commercial for dishwashing liquid and prevailed.

Yes, it's true.  As part of a social studies project at her Los Angeles elementary school, Ms. Markle wrote a letter to the advertiser complaining that a line from its dishwashing liquid commercial – "women are fighting greasy pots and pans" – implied that washing dishes was strictly women's work.  The advertiser changed the ad in response to Ms. Markle's letter, substituting "people" for "women"—acknowledging the reality that greasy pots and pans bedevil all of us, regardless of gender. Ms. Markle was light years ahead of her time.

Twenty-five years later, UK advertising regulators have taken up the mantle and are moving to stamp out harmful and offensive gender stereotyping in ads.  The Committee of Advertising Practice (CAP), a rulemaking body affiliated with the UK's Advertising Standards Authority (ASA), recently published a draft rule that takes direct aim at gender stereotypes:

Advertisements must not include gender stereotypes that are likely to cause harm, or serious or widespread offence.

The proposed rule follows the ASA's December 2017 report, "Deceptions, Perceptions and Harm."  In case it's not clear from the title, the ASA found that gender stereotypes have the potential to cause harm.  How?  "By inviting assumptions about adults and children that might negatively restrict how they see themselves and how others see them." The ASA found that these assumptions can lead to "unequal gender outcomes in public and private aspects of people's lives."

Right now the rule is in the "public consultation" phase, a British version of our "public comment" period, and will remain so until July 26th.  While the public will have two months to comment on the proposed rule, don't expect any wholesale changes.  CAP is strongly in favor of the rule.  Echoing the ASA's findings, it says that gender stereotypes "have potential to cause harm by playing a contributory role in restricting people's choices, aspirations and opportunities, which can lead to real-world harm in the way people interact with each other and the way they view their own potential."

The key question under the new rule will be whether any particular gender stereotype is likely to cause harm or offense.  If it does neither, it's still fair game.  Based on guidance provided with the draft rule, CAP takes a broad view of this standard.  For example, it advises that each of the ads below – among other examples – would likely be problematic under the proposed rule:

  • an ad depicting a man with his feet up and family members creating a mess around a home while a woman is solely responsible for cleaning up the mess;
  • an ad depicting a person failing to achieve a task specifically because of gender – e.g., a man's inability to change a diaper or a woman's inability to park a car;
  • an ad that belittles a man for carrying out stereotypically 'female' roles or tasks.

That first example is not far from the dishwashing liquid ad that caught the attention of young Ms. Markle.  Saying that "women" are fighting greasy pots and pans implies that, when it comes to washing dishes, "a woman is solely responsible for cleaning up the mess."  Had the proposed rule been in effect in 1993, when the commercial aired, the advertiser might have had to answer to a higher authority than an eleven-year old elementary school student.

Is a similar rule possible in the United States?

Is it conceivable that such a rule or analogous legislation could ever be passed in the States?  Short answer: not likely—at least in the short term, in large part due to the restrictions on speech-burdening government action imposed by the First Amendment.  If such a standard is ever to make its way to the U.S., it would likely be the result of a voluntary, industry-led effort.

And as to our advertising regulators, the FTC and state Attorneys General tend to focus on advertising claims ­– that is, whether the assertions made in the ad are true – and whether ads are otherwise unfair.  Since the issue here doesn't involve claims, jurisdiction would turn on whether gender stereotypes are "unfair."  FTC precedent defines unfair as causing or likely to cause "substantial consumer injury which a consumer could not reasonably avoid." Are gender stereotypes likely cause substantial consumer injury?  The UK regulators certainly think it's possible, but they haven't gone so far as to predict injury as likely.  Thus it's difficult to see this issue rising to the attention of the FTC or state Attorneys General any time soon.

The only other federal regulator that might get involved in an issue like this would be the Federal Communications Commission.  The FCC fields complaints about commercials believed to be indecent or in poor taste.  These complaints typically involve allegations of obscenity, indecency, or profanity.  There is no precedent for the FCC engaging on the potential harms of gender stereotyping.  So once again, regulatory action seems unlikely in the States.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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