1/2007 - Kuluttajavirasto

Transcription

16.02.2007
The Finnish Consumer Ombudsman’s
Newsletter 1/2007
Good practice in marketing
- in the interest of business and consumers
This newsletter sheds light on rules that apply to advertising.
Complying with good practice in marketing promotes social
responsibility, while failing to do so violates consumer protection as well as advertisers’ own codes. Page 3
Responsibility forgotten in the advertising world
ISSN 1796-5500
From the Editor
The advertising world also has its limits
Articles
Concept of humanity and interpreting
the law
Responsibility forgotten in the
advertising world
Minors are more impressionable than
adults
Advertising helps shape society’s values and can easily make
anti-social behaviour seem acceptable or even desirable. If safety considerations are neglected in a commercial, the copying
of behaviour can quickly result in serious accidents. Page 6
Collection agency may not sell
information to creditors
Religious symbols can easily offend
Food advertising should display social
responsibility
The use of religious symbols in marketing almost always
arouses strong emotions, and showing respect for people’s
sensitivities is even more important in a multicultural society.
Page 16
Easy to cross the line with sexuality
Using a scantly clad woman as an eye-catcher is a classic
example of marketing that can easily be judged contrary to
good practice. Discrimination based on sex is evaluated according to whether marketing presents a member of either sex in
a degrading way or reinforces negative stereotypes. Page 20
Outdoor advertising should not be
offensive to children
Violence cannot be cloaked in humour
Human dignity is not a joking matter
Temptation to circumvent rules in
online advertising
Showing nudity requires a sense of
time and place
Harmonizing consumer legislation will
not affect the principle of good practice
Editorial staff
Editor-in-Chief: Anja Peltonen
Staff: Sakari Seppälä, Laura Salmi
[email protected]
Businesses can make advance enquiries
concerning marketing
News from abroad
Kuluttajaviraston uutiskirje
The advertising world also has its limits
[From the Editor]
Good practice has been in the news again.
Before Christmas H&M's annual "see what the prudes say about this" campaign received attention in
the media.
Fazer and Brunberg have been in the centre of a debate since last autumn, receiving both criticism and
popular support. Fazer acted wisely and decided to change its packaging, in the face of public pressure.
Discussion regarding Brunberg's kisses is still going on.
Why do we put so much emphasis on matters related to good practice in Finland, when there are so
many other causes for concern?
Good practice in marketing means that companies act according to generally accepted social values.
In our democratic society these values are expressed through legislation: advertising may not portray
violence, it may not discriminate against a group of people, children's interest is key. Advertisers cannot
use freedom of expression as an excuse to flaunt basic values or get around them under the guise of
humour or even in the name of a noble goal.
Generally accepted values are not the same thing as good taste, strict morals, stylishness or
anti-commercialism. Social values are not a book of etiquette or a collection of do's and don't's. Plenty
of room is left for creativity.
In this era of values and communication strategies, it is only natural that marketing should be in line
with a company's values. If a company says it wants to respect human rights, why should it portray
violence in its advertising? If a company wants to build a progressive image in its communication
strategy, why should it use advertising that is blatantly discriminatory against women?
Complying with good practice in marketing tells a lot about a company's social responsibility and what
it really values.
The counter-arguments that are made about our marketing supervision generally go something like this:
there are more important things in the world, or, don't you people have anything better to do? We hear
the same arguments when we demand clear information about loyalty programmes or guarantees.
One would think that the need to provide clear information is obvious - as obvious as the need to
comply with generally accepted social values. Why is this not so?
Anja Peltonen
Editor-in-Chief, Director of the Consumer Law Division
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Subsrcibe to this newsletter from the following address: http://uutiskirje.kuluttajavirasto.fi
Concept of humanity and interpreting the law
There has been a lot of discussion lately about advertising that appeals to the emotions and the
use of children or humour in commercials. Is it prudish or pedantic for authorities to object to
macho humour, "me first" thinking and the portrayal of violence in advertising?
Advertising does not have an obligation to make society better. On the other hand it should not convey
values that are contrary to generally accepted principles. Such advertising is not justified by a humorous
intention or even a noble goal.
Finland's Consumer Protection Act prohibits marketing that is contrary to good practice or otherwise
unfair from the point of view of consumers. Unfairness is linked to consumers' decision-making
possibilities, while good practice places requirements on advertisers' social responsibility. But where do
we draw the line? What is good practice?
The Market Court has issued decisions in cases that touch on this subject. In these decisions it has noted
that the marketing provisions in the Consumer Protection Act can be applied to advertising that is
clearly in conflict with generally accepted values. Advertisers have stated the same thing in their own
codes: advertiser have a social responsibility.
The position taken by the Market Court means that advertising does not violate the law unless it can be
considered contrary to society's values. The fact that some people find an ad or commercial offensive
does not automatically make it contrary to good practice.
In evaluating advertising, attention must be paid to the medium and the target group. An advertiser
cannot excuse the degrading nature of a commercial that is presented in the mass media by saying that it
was aimed at educated, young urban people who consider it funny and do not see anything offensive in
it.
Generally accepted social values cannot be listed on the basis of the Market Court's decisions. Even if
a consensus can be reached on values, the question must also be answered whether advertising "clearly"
goes against them.
The Market Court has addressed the issue of generally accepted social values in some cases.
Significance has also been given to whether a feature is linked in any way to the product that is being
advertised. Portraying violence in marketing is not allowed unless there is a natural basis connected to
the product.
If marketing depicts either sex in a degrading, humiliating or otherwise offensive way, marketing
provisions can be enforced.
According to the Market Court, advertising may not portray indifference or insensibility to another
person's misfortune as if this were acceptable behaviour. For example, the marketing of a natural
product should not have talked about eliminating fatigue in a way that was liable to reduce traffic
safety.
The inviolability of human dignity and respect for the law are things that advertisers cannot question. A
humorous intent is no excuse for violating these principles.
In its guidelines the Council of Ethics in Advertising has drawn attention to the need to respect human
dignity as required by the Consumer Protection Act. Official surveillance and self-regulation thus have
the same objectives in this regard.
Discriminatory advertising is a recurrent subject of discussion. Many people confuse discriminatory
advertising with the presentation of a naked or scantly clothed woman in an ad or commercial. A
bare-breasted woman advertising laundry detergent may offend people who do not approve of showing
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nudity in any circumstances. The situation is no more degrading to women than showing a naked man
walking around is degrading to men. On the other hand if a woman is shown in a way that accentuates
the breasts or buttocks or a man is shown from the neck down so that attention is focused on the torso,
this is discriminatory and offends human dignity.
Human dignity can be offended through physical violence or through a clearly offensive manner of
presentation. Similarly advertising that is discriminatory on the basis of race, religion or disability is not
allowed. Such cases have been considered under the Consumer Protection Act but have not gone to the
Market Court.
In evaluating whether advertising is discriminatory, one criterion is the social position of the group in
question. Men's position in society is stronger than women's. It is thus possible that an ad that is
degrading to women would not be considered discriminatory if a man played the leading role. Showing
a woman punching someone out is highly questionable, even if the aim is to reverse old role situations.
As long as advertising does not offend generally accepted social values, at least when it is aimed at
adults it can use caricatures and stereotypes and even promise happiness to those who purchase the
product.
Children and society's education goals have been strongly emphasized in connection with food
advertising lately. Parents' right to educate their children is something that advertisers cannot get
around, however, and advertisers must not encourage anti-social behaviour. A child is not an object or a
small adult.
Even if the intention is to be humorous, advertisers must remember that children depend on adults'
protection. Children's human dignity must not be offended through humiliation or objectification.
Commercializing emotions and using stereotypes does not offend generally accepted social values in
itself. Advertising crosses the line, however, if it implies that the key to being a good parent is to buy
things. Parents' desire to do a good job and ensure the best for their children cannot be used as the sole
argument in advertising.
Being a good parent includes more than making children happy by buying products.
Some commercials paint a picture according to which individuals who are less than ideal are not
likely to find a mate unless they use a particular kind of deodorant, for example. These commercials
have not been regarded as violating the law, however.
Stereotypes are not so much visible in individual commercials as when a whole series is studied.
Commercials aimed at young people may seem to show only anorexics, but market surveillance can
only do something about individual commercials and not the general phenomenon. If the same message
is repeated in advertising, this calls for social debate, and business is also expected to take an active
stance.
In Finland there has not been a great deal of debate about social acceptability in advertising that is
located in public spaces. Are advertisers free to use any space they want for commercial purposes? Is
the only issue a contract between an advertiser and the party renting advertising space or can shoving
advertising in people's face in itself be considered contrary to good practice?
Read more
Supervision and self-regulation
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What can people do if they think a television commercial is blatantly racist, indecent or sexist?
In Finland two bodies consider moral and ethical issues related to good practice in advertising. Anyone
who is offended can complain about an ad or commercial to the Consumer Agency or ask for a
statement from the Council of Ethics in Advertising, which operates under the Central Chamber of
Commerce.
The Consumer Agency has the statutory task of supervising compliance with good practice in
marketing. The Consumer Agency evaluates advertising on the basis of what is referred to as the
general clause in the Consumer Protection Act.
According to the general clause, no conduct that is contrary to good practice or that is otherwise
unfair from the point of view of consumers is allowed in marketing. The clause is open to interpretation,
but the Consumer Agency can rely on numerous decisions that have been issued by the Market Court.
The Government bill also sheds light on the concept of good practice.
The Council of Ethics in Advertising, on the other hand, is a self-regulatory body and its
recommendations are based on the Code of Advertising and Marketing Practice adopted by the
International Chamber of Commerce as well as the Council's own established principles.
•
The Consumer Agency is responsible for supervising the legality of business-to-consumer
advertising. Its mandate does not cover business-to-business advertising.
•
The Consumer Agency expects businesses to comply with decisions in future activities as well.
•
The Council of Ethics in Advertising does not take a stand on whether advertising violates the law
but cautions advertisers who appear to cross the line
•
Both the Consumer Agency and the Council of Ethics in Advertising issue advance statements on
advertising. The Council of Ethics in Advertising charges for statements, while the Consumer
Agency does not.
Read more
Businesses can make advance enquiries concerning marketing
Enquiries concerning marketing
External links
Chambers of Commerce in Finland
International Chamber of Commerce
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Responsibility forgotten in the advertising world
Advertising helps shape society's values and can easily make anti-social behaviour seem
acceptable or even desirable. If safety considerations are neglected in a commercial, the copying
of behaviour can quickly result in serious accidents.
In addition to weakening safety culture, showing disregard for the safety of other people and their
property in advertising violates the principles in the Consumer Protection Act. If safety requirements
concerning products and services are not met in a commercial, for example, the commercial is
automatically contrary to good practice.
Disregard for safety leads to accidents
According to statistics, Finland has a high incidence of home and leisure accidents. At home and in
leisure activities Finns take a lot of risks and behave in a way that results in clearly more mishaps than
occur in other Western European countries.
Of approximately 1,100,000 accidents that occur annually, nearly 800,000 take place in the home or
during leisure. Over 2,000 Finns lose their lives in home accidents each year.
Ads, commercials and other sales promotion materials aimed at consumers present behaviour models
that may increase home and leisure accidents. Not all consumers, and particularly children, can
understand when an activity presented in an ad or commercial has been made to look dangerous on
purpose or for entertainment reasons.
A commercial for Tiimari Oy, which sells gifts and hobby items, shows a large number of candles
burning next to one another in a bathroom. The person who lit the candles walks out of the room and
leaves the candles burning unattended. If candles are placed too close together, hot wax can easily cause
a flare-up. This is likely to cause a fire. Showing candles that form too tight a group can be considered
to give consumers a behaviour model that increases safety risks. The commercial fails to comply with
safety guidelines concerning candles in many respects.
Commercials also forget different types of protective equipment. For example, the law requires the use
of a helmet on a motor cycle, and the same applies to anyone driving a motor cycle in a commercial. In
general advertising should not encourage people to try dangerous stunts.
People's safety is more important than property
The Finnish Consumer Agency has also objected to commercials that show someone valuing property
over another person's safety. Showing disregard for other people's health is unacceptable even if it is
intended to be humorous.
A Toyota Yaris commercial shows a man standing on a ladder washing a third-floor window. Suddenly
the ladder falls and the man is left hanging on the window frame. A woman inside the house hears him
calling for help and runs to her balcony. She sees the man and then runs outside and gets in her car,
which is directly below the man. Then she moves her car and finally walks away. In the final scene we
see the car and a man's voice says, "Toyota Yaris - it'll take your heart".
With regard to the commercial's script one can ask how it fits in with the social responsibility called for
in advertisers' own codes. The commercial was contrary to good practice because it gave viewers and
particularly children the impression that it is all right or even smart to disregard a threat to another
person's health if one's own property is in danger.
"Me first" attitude is harmful
Encouraging people to be selfish at the expense of others is questionable in itself, but combining this
with a disregard for another person's safety makes it particularly deplorable.
Idealizing violence or selfishness in advertising flaunts generally accepted social values. Advertising
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should not appear to condone behaviour that is unlawful or shows a disregard for other people's safety
or property.
An example of unacceptable advertising is a Twix commercial in which two people on a moped
approach a low-hanging branch and the driver bows his head without warning the passenger, who is
struck by the branch and falls off. The idea is that the driver will now have the whole candy bar to
himself and will not have to share it with someone else.
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Minors are more impressionable than adults
Minors may lack the ability to evaluate advertising critically and understand irony. Good
practice requires that advertisers take this into consideration - and not exploit it. For this reason
advertising should not present unsuitable behaviour models to children or make promises that
life will become better if they purchase the right products.
Advertisers should consider what types of attitudes and role models they convey to minors. For
instance, it goes against basic rules of conduct to suggest that children should walk out of a birthday
party if real Domino cookies are not served. Similarly a commercial crosses the line when it suggests
that children should call the police so that their parents will stop at a particular sweets outlet. Such
behaviour models are in conflict with generally accepted values in our society.
The impression or message conveyed by advertising alone does not determine whether advertising is
acceptable. Attention must also be paid to the type of product and whether advertising is designed to
appeal to children.
The above-mentioned commercials market cookies and sweets, which are appealing products for
children. Both also use children as actors. Seeing actors of the same age on screen is an extra lure for
children, who can identify with them. This can also make it even harder for children to understand the
commercial nature of the presentation.
Child actors can be used in commercials provided they are shown in a suitable environment or are
necessary to demonstrate the product. Child actors must not make direct appeals to purchase products,
however.
Advertising should not make parents feel guilty
The effectiveness of marketing messages is often based on the way in which they appeal to emotions
and needs. This approach is problematic in marketing that is aimed at children. Advertisers must not
exploit minors' credulity or lack of experience. Emotionally charged subjects such as loneliness,
happiness and other people's approval should be kept clearly separate from the advertised product.
The Finnish Consumer Ombudsman has objected to commercials that gave the impression that buying a
hamburger meal, a bag of sweets or a package holiday automatically results in friends, laughter and
intimacy. In one case children dressed in school uniforms watched enviously while other children
wearing stylish clothes from Seppälä, a chain of fashion stores, clearly led a happier and more
colourful life.
Suggestions that particular products are necessary to promote a child's welfare can also hurt parents.
Appealing to parents' sense of responsibility or guilty feelings is just as contrary to good practice as
taking advantage of minors' special position.
Read more
Giveaways may not dominate marketing aimed at children
Minors, marketing and purchases
Children and Foodstuffs Marketing (pdf)
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Outdoor advertising should not be offensive to children
Offensive advertising in public spaces violates people's right to a peaceful living environment and
reinforces sexual roles that are not based on reality.
The Finnish Consumer Agency has called on advertisers to show responsibility for the role models and
attitudes they offer young people. Minors should not be exposed to marketing in public spaces that
contains stimuli and messages that are unsuitable for children and young people. In the most blatant
case a bus passenger complained about being confronted daily with posters showing a drawing of a
woman's genitals.
A poster advertising a pop band with a suggestive name (Ripsipiirakka) showed the back of a woman's
legs, with the woman standing so her legs flared out. Through them one can see a drawing of a woman's
genitals inside a heart. The male members of the band are sitting on the floor, apparently looking at the
woman's crotch. At the bottom of the screen is the name of the album along with a slogan and a word in
which the letter O is drawn in a similarly suggestive way.
In the poster the woman was presented as a sex object without any connection being made to the
product. The poster also suggested to children and young people that it is acceptable to degrade women
with pornographic pictures. The poster likewise contained sexual stimuli that are not suitable for
children and young people. The poster was contrary to good practice.
Headline posters are ads
Rules concerning outdoor advertising should also be remembered when it comes to ads in windows and
on indoor stands. For example, pornography shops often display sex toys as well as sex films and
magazines in their windows. These are things that do not belong in public spaces where children can
see them.
An even bigger problem concerns the way in which eveningpapers are marketed. This is often in
conflict with children's rights. The Consumer Agency considers headline posters advertising, as does
the Council of Ethics in Advertising, while evening papers regard them as journalism.
People have complained about headline posters to the Council for Mass Media, the Council of Ethics in
Advertising and the Ombudsman for Children. In 2005 the Council of Ethics in Advertising made a
decision concerning headline posters that can frighten children. It noted that headline posters are subject
to the same rules as other advertising, since they have a commercial purpose. A headline poster is thus
advertising and comes within the Council's scope.
The Ombudsman for Children has expressed concern about headline posters and has said that all the
responsibility for protecting childhood cannot be placed on parents and public authorities. In a report on
the subject the Ombudsman for Children has called on evening papers to comply with good practice and
ethical principles concerning advertising.
The Council for Mass Media has also urged caution in the displaying of headlines.
Advertisers' responsibility is heightened in public spaces
Outdoor advertising is something that people cannot help seeing, and consequently it is easier for it to
overstep bounds in terms of offensiveness. In the past the Consumer Agency has taken a stand on
posters displayed by KappAhl after receiving several complaints that they were degrading to women.
In spring 2003 KappAhl arranged an extensive outdoor advertising campaign for its lingerie. Posters at
metro stations and on buses, for example, showed women's bodies from the knees to the neck. Women's
faces were not shown and across women's midsection was the text: "All bras 9.90 €". The campaign
stimulated a great deal of discussion concerning the concept of women and humanity presented by
advertising and the sexualization of advertising.
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Advertising must not treat women as an object or be degrading to women. The campaign was not
considered to overstep bounds, however, since the posters presented women's bodies in a neutral way.
People cannot help being exposed to outdoor advertising, and it also reaches children and young people.
This heightens the need for responsibility on the part of advertisers.
Read more
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Food advertising should display social responsibility
Children's weight problems are such a major concern in western countries that pressures for the
tighter regulation of food advertising are increasing. Many foods that are marketed to children
contain few nutrients and large amounts of fat, sugar or salt. A poor diet increasingly leads to
health problems in adulthood.
According to generally accepted social values, children's health and welfare are a high priority.
Marketing that is in conflict with public health goals is contrary to good practice.
Advertising naturally promotes particular brands, but food marketing aimed at children has a broader
influence. It makes a difference for public health whether children reach for potato crisps or a carrot, a
fruit or a bag of sweets.
Another problem with food advertising is that products are marketed directly to children by combining
them with cartoon figures, giveaway toys and promotional games. These encourage children to get their
parents to buy products that are not part of a healthy diet. Advertising may also contain misleading
health claims, for example by emphasizing that a lolly - which is made almost entirely of sugar - is
fat-free.
Many countries as well as the European Commission have discussed the need for restrictions on food
advertising aimed at minors. Britain, for instance, took a significant step when it banned the advertising
of junk food in children's programmes and also in adult programmes that are watched by a large number
of children and young people.
In the United States companies are trying to improve their behaviour by developing self-regulation in
the field. The top ten food and beverage companies have agreed to limit the advertising of junk food
aimed at children under the age of 12. New guidelines urge companies to make a clear division between
programmes and commercials. In online games companies must also be more open about their
advertising and give preference to healthy lifestyles.
The agreement was signed by Coca-Cola, Pepsi, McDonald's, Cadbury Schweppes, Campbell, General
Mills, Hershey, Kellogg, Kraft Foods and Unilever, which account for over two-thirds of food and
beverage television advertising aimed at children in America.
Is self-regulation enough?
In 2005 the Finnish Consumer Agency and Consumer Ombudsman together with the National Public
Health Institute published a recommendation that has not lost its timeliness. It contains guidelines for
companies that want to advertise foodstuffs responsibly.
Although the Confederation of the Food and Drink Industries of the EU has prepared its own
recommendation, this does not seem to be a sufficiently concrete and effective tool to steer marketing in
the desired direction.
In Finland the Consumer Agency does not consider it necessary to enact special legislation on
marketing aimed at children as long as the provisions in the Consumer Protection Act are taken into
considerations according to the recommendation and businesses bear their own share of social
responsibility.
Read more
Children and Foodstuffs Marketing (pdf)
External links
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Press release: (Ofcom, UK) New restrictions on the television advertising of food and drink products
to children
Press release: New Food, Beverage Initiative to Focus Kids' Ads on Healthy Choices; Revised
Guidelines Strengthen CARU's Guidance to Food Advertisers
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A giveaway that has little monetary value can be more attractive to children than the main
product, in which case it is easy to influence purchasing decisions. Consequently in marketing
products that interest children, advertisers must take special care to see that giveaways do not
become the main message in advertising or on packages.
Since children are not able to judge the value of giveaways in the same way as adults, advertisers
should be very careful about using giveaways in connection with products that interest children.
For example, the Hesburger chain marketed its children's meal by offering a free CD with it.
The cover of the CD showed Hesburger's logo and the words "children's meal" in large colourful letters.
In the middle was the text "Hese's robot disco vol. 2", also in large letters. The CD contained five tracks
that sounded like normal songs intended for children, except that one song was entitled "Hesburger".
Translated freely the words of the song went something like this:
"When we meet at the corner, I can always hear it.
When you say hey, now it's OK. Hesburger./
Hesburger and let's go in. (Hesburger.) It's yummy. (Hes.)
Hesburger. Mmm. Hesburger./
You know you can always trust Hesburger like a friend.
See you there, open the doors to Hese's world./
Hesburger, you won't find anything better anywhere.
So say OK and let your hunger go away. Hesburger."
The other tracks on the CD were rearrangements of traditional and well-known children's songs, and the
Hesburger song was not separated from them in any special way. A person looking at the cover of the
CD could only deduce that it contained advertising on the basis of the name of the song.
In other words Hesburger included advertising in the form of a song in the CD. This type of marketing
was contrary to good practice because it contained direct appeals to children to buy products, nor was
its commercial purpose clearly indicated. Since the CD was not clearly identified as marketing, it
undermined parents' authority as educators.
A Nestlé cereal commercial that was shown in two segments during breaks also drew criticism. The
second segment was dominated by characters from a children's movie and giveaway toys based on
them. The only way to get a toy was to buy the advertised cereal, which was shown briefly at the end of
the commercial.
The company had previously given a commitment that giveaways would no longer play a dominant role
in marketing. In this case the company reviewed its commercials as a whole and said that giveaways did
not dominate the whole campaign. In its decision the Market Court stated that separate parts of a
marketing campaign must be evaluated not only as part of the campaign but also individually, as
independent commercials. Thus each commercial in a campaign must comply with the Consumer
Protection Act.
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Violence cannot be cloaked in humour
Portraying violence in advertising is blatantly in conflict with generally accepted social values.
One can well ask whether portraying violence promotes the type of image that advertising is
intended to build.
Although we see wars on television practically in real time and many films as well as video games are
based on violence, portraying violence in advertising is not permitted as a rule, and there are practically
no exceptions.
With regard to the portrayal of violence in marketing, case law has established that advertisers' freedom
of expression can be restricted on the basis of the Consumer Protection Act.
Even if advertising is meant to be humorous, this is no excuse for portraying violence. On the contrary,
portraying violence in a humorous manner is in a sense even worse because it gives the impression that
this kind of behaviour and its consequences are something to be laughed at.
An Ikea commercial showed two Asian men fighting each other with fish as weapons. In the process the
men trash the bedroom of a woman living downstairs. The men accidentally hit the woman, who flies
out the window as a result. The message was that if you lose your bedroom, you can get a new one from
Ikea. The Consumer Ombudsman objected to the commercial on the grounds that it was contrary to
good practice.
Marketing is one way to convey prevailing values in society, and it also influences the world view of
people who see it. Violent behaviour and damaging other people's property are not condoned in our
society.
No violence allowed in marketing aimed at children
Portraying violence in a commercial as something that is acceptable gives growing children a behaviour
model that reflects a disregard for other people's safety and inviolability.
The Market Court has also considered portrayals of violence especially detrimental to children, since
they generally have no idea what kind of consequences even a single blow or kick can cause.
Violence can be portrayed in marketing only in rare cases where there is a natural connection to the
product. Even when there is a natural connection to the product, violence may not be portrayed in
advertising that is aimed at minors or shown during times when children are more likely to watch TV.
A violent commercial for Hasbro's Action Man toy blatantly violated the law because the product was
intended for children and the commercial was shown during breaks in children's programmes.
In the commercial the toy "hits, jumps and kicks" practically the whole time, according to the
description. The commercial was shown on two channels during breaks in children's programmes.
Read more
Even threatening behaviour is distressing
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Even threatening behaviour is distressing
Advertising that has a threatening and frightening tone can be as distressing as the actual
portraying of violence.
A Hesburger commercial for its Salsa burger contained threatening behaviour and elements that were
clearly frightening to small children.
The commercial showed sharp, shiny knives and what looked like blood flowing and splashing on
walls, in horror movie style. In the end the viewer finds out that someone is slicing tomatoes and the red
liquid is only tomato juice.
The commercial's humorous approach may not be as obvious to children as to adults. Although children
were not the target group, the commercial was likely to be seen by children because it was broadcast
before their normal bedtime. The advertiser was told not to show the commercial before 9 pm.
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The use of religious symbols in marketing almost always arouses strong emotions, and showing
respect for people's sensitivities is even more important in a multicultural society.
Religious symbols have rarely been used in advertising in Finland. Religion has traditionally been a
subject and part of life that people want to keep separate from commercial goals. Whenever religious
references are made in advertising, one can well ask whether it is right to use religion to promote sales.
The fundamental question is whether everything in our world of experience can be exploited for
commercial purposes. This question cannot be answered by guardians of the law but requires public
debate.
Sensitivity should be shown in the use of symbols. One essential thing in evaluating religious references
in advertising if whether there is a natural connection to the product. If there is no connection at all,
advertising may be irreverent or sacrilegious towards holy symbols.
Another important thing is what role a religious symbol plays in advertising. Is it a key focus or does it
receive only passing attention?
A commercial for Kestopuu Oy, which supplies impregnated lumber, showed a pile of sand with a
wooden cross on top. A male voice reads a text that is meant to have a biblical quality, and in the
background one can hear religious music.
The commercial did not present specific products but was general brand building. The commercial used
a strong religious symbol in a way that brings to mind the Crucifixion. Attention is drawn to the
symbol, which is the key focus in the commercial. The message is presumably that impregnated wood
would be an ideal material for a wooden cross. There is some sort of direct connection to the product.
The symbol is also presented in a fairly neutral way: there are no verbal or visual elements that could be
considered base or degrading. The commercial is not meant to belittle, degrade or debase the church's
holy symbols or the Christian community in such a way that it could be considered contrary to good
practice or unfair.
Religious references are sometimes permissible
Using religious experience for commercial purposes can easily offend people and cause distress.
Nevertheless, advertising that does so is not necessarily contrary to good practice, even if many people
may find it in poor taste or say it creates negative images.
Although religious expressions are part of everyday communication and may have lost a lot of their
original meaning, they should not be used carelessly.
Consumer authorities received a complaint about two commercials for Sun Silk hair-care products,
which were suspected of showing disrespect for Christians' God and religion.
In one of the commercials a woman is in a living-room and applies hair spray. In the other commercial
a woman is in a bathroom and applies hair cream. The scripts differ somewhat, but in both commercials
we see a cloud of smoke and lightning at the top of the screen and then two fingers appears out of the
cloud and offer the woman the product in question while a male voice speaks.
The commercials are intended to present the company's hair-care products in a humorous way. It
depends on the viewer's personal experience and values what impression the commercials make. The
male voice cannot definitely be said to represent the Christian God or the deity of any other religion,
however.
Although these commercials may arouse negative images in some people, the commercials cannot be
said to belittle, degrade or debase Christians as a religious group or the Christian God in such a way that
16
they could be considered contrary to good practice. Nor did the commercials use shocking or
frightening elements or other devices in a way that could be considered contrary to good practice.
17
Human dignity is not a joking matter
Different cultures and ethnic group should be presented in advertising as equal with the majority
of the population. A presentation that is discriminatory on the basis of race goes against the
marketing provisions in the Consumer Protection Act, international advertising codes and the
Non-Discrimination Act.
A commercial for the Expert chain, which sells home appliances, showed a character played by
Pirkka-Pekka Petelius dressed in a Lapp costume, with a red face and black teeth. The character
obviously wanted a drink and was searching refrigerators for one, all the while making wrist
movements as if tilting a bottle. The same character also appeared in ads that were distributed to homes.
A Leaf gum commercial had as its main character an Indian playboy. The man's ethnic background was
clear from the background and props as well as his accented English. The man was presented as the
stereotype of a foreign gigolo, with bright-coloured clothes and shiny chains around his neck, whose
whole life revolved around seducing women.
Pirkka-Pekka Petelius's character was originally created for a television sketch show. The Leaf gum
commercial was also intended to draw laughs. A humorous approach is no excuse for failing to comply
with good practice, however, if advertising is clearly in conflict with generally accepted principles
concerning respect for human dignity and equality.
Presenting an offensive picture of a particular ethnic group always has broader social ramifications:
prejudices and attitudes may also expand to cover ethnic minorities in general. In addition to offending
Indian men, the character in the Leaf commercial was liable to strengthen prejudices against all
non-western men, for example.
As society becomes more culturally diverse, familiar products with long traditions may also have to be
viewed in a new light. This is also reflected in the new Non-Discrimination Act that came into force in
2004, whose purpose is to safeguard and promote equality in different spheres of society.
A concrete example is the debate concerning the wrapper on Fazer licorice. Sweets maker Cloetta Fazer
took part in negotiations with the Finnish Consumer Agency and the Minority Ombudsman, and on this
basis Fazer displayed social responsibility and said it would change the wrapper.
18
Temptation to circumvent rules in online advertising
The Internet has brought new opportunities for advertising, and in the rush to exploit these, rules
concerning good practice have sometimes been forgotten. A worrying feature is attempts by
businesses to circumvent rules on the Internet. Online advertising must also meet the general
requirements of good practice.
Problems with online cola campaigns
Last December the Finnish Consumer Agency had to intervene in online campaigns for two brands of
cola, which failed to comply with good practice. A look at the way colas were marketed gives some
idea of unhealthy aspects of online advertising.
Coca-Cola Zero's website marketed the new beverage with a game that showed how to enjoy the life of
a carefree bachelor. Among other things it gave tips on how to pick up women and get them to bed as
quickly as possible.
In interpreting the Consumer Protection Act, it has long been established that advertising may not be
degrading to women. Discrimination based on sex is evaluated according to whether marketing presents
a member of either sex in a degrading way or reinforces negative stereotypes.
The message on the Coca-Cola Zero website was that women are inferior and insignificant objects
whose only value lies in their ability to perform sex. A man needs to get a woman to shut up so that he
can have sex as quickly as possible and then spend more time having fun with friends. The game also
suggests renting a group of homosexuals to make it easier to pick up a woman. This attitude is
crystallized in the slogan "More sex, Zero foreplay".
The fact that the campaign was meant to be humorous did not make it acceptable. The website
reinforced discriminatory attitudes towards women, which is contrary to good practice. It also gave
young men a distorted view of relationships with women.
The Consumer Agency held negotiations with Coca-Cola Finland, after which the company
immediately stopped the campaign.
The Coca-Cola Zero campaign is an example of a macho attitude that seems to be popular at the
moment. This involves a selfish lifestyle, partying and viewing women merely as a way to satisfy one's
own needs.
The Council of Ethics in Advertising also issued a statement saying that the website violated
international codes as well as good practice as interpreted by the Council.
The Consumer Agency objected to a banner on Pepsi Max's website that showed a clown waving
around a chain saw. The banner was of interest to children because it revolved around a toy figure and
Christmas. Although the banner was not actually aimed at children, they could easily be exposed to it.
After talks the company agreed to take the banner off the website and put a notice on the front page that
the campaign might contain material that was unsuitable for children and that parental guidance was
advised. A television commercial in connection with the campaign was also moved so that it would not
be shown until after 9 pm.
Read more
Internet marketing aimed at children and minors
19
Using a scantly clad woman as an eye-catcher is a classic example of marketing that can easily be
judged contrary to good practice. Discrimination based on sex is evaluated according to whether
marketing presents a member of either sex in a degrading way or reinforces negative stereotypes.
Sexual discrimination can be targeted at men or women. Sometimes simple nudity in advertising may
offend some people. Nudity or sexuality by itself is not automatically contrary to good practice; what
matters is whether they are used in a degrading way.
The October 2005 issue of Trendi magazine carried a Diesel ad that did not present a specific product
but was intended to build the brand's image in general. The ad conveyed to consumers a certain image
of Diesel products, namely that they are extremely manly.
The ad shows a man lying on a sofa, without a shirt. Above him are three plastic dolls. The man's belt is
undone and his zip is down. The inflatable dolls play a key role in the ad, along with the man. Their
shape and clothing bear a resemblance to matryoshka dolls (Russian nested dolls). A striking feature is
the dolls' round mouths, which call to mind the kind of inflatable dolls that are used as sex toys.
For most people the dolls in the ad clearly have a sexual connotation. The ad gives a picture of a
woman's mouth as a sex organ. The man's open trousers reinforce this sexual charge.
The ad as a whole is degrading to women. It clearly exploits sexuality and treats women as an object.
Consequently the Consumer Ombudsman called for the company to stop showing the ad, which is
contrary to good practice.
Nudity and sexuality are evaluated even more strictly if advertising reaches minors. According to media
information Trendi magazine is also read by minors. The Diesel ad would have been judged contrary to
good practice in any case, even if young people did not see it.
Suggestive poses and mud wrestling near the border line
Using a man or a woman as an eye-catcher is permissible in advertising provided it is not done in a
degrading way. The line between what is acceptable and what is not is very thin, however.
It is not always easy to say whether marketing is sexually discriminating or not. For example,
statements had to be issued on two commercials for AXE deodorants that skated close to the line. One
obviously went too far but the other was allowed, although it also exploited sexuality.
In one commercial a young man wearing white boxer shorts sprays deodorant in his kitchen and closet.
Then a young blond woman enters the apartment, puts down her shopping and follows the apparently
pleasant scent to the kitchen and closet. The camera moves to another room where the man escorts a
woman with dark hair out of the apartment. She is dressed in her underwear and carries a bundle of
clothes. Finally we see the blond going into the closet and the man approaching as he sprays scent on
his bare chest.
The commercial cannot be considered contrary to good practice simply on account of nudity or scanty
clothing. As a whole it was judged not to cross the line because it only implied indirectly that the man
had more than one partner. The blond in the commercial was drawn to the Axe scent, but the
commercial could not be considered contrary to good practice because sexual references were not made
in a way that offended the human dignity of either sex.
In the other commercial two young women are riding horses outdoors and a young man sprays scent in
a mud puddle. The women rush to the puddle while taking off their clothes and riding helmets. One of
the women unbuttons her shirt and her bra is visible. The other woman is seen wearing a corset that
covers her breasts and midsection. Both are wearing trousers. Then both women are seen covered in
mud, which one rubs on her breasts and on her friend's back and buttocks. Next the camera shows the
20
young man gaping at the scene. The women turn to the camera and one of them beckons with her
finger. The man sprays deodorant on his chest and walks towards the camera. Finally the commercial
shows the man's trousers with the button open and the zip down.
The commercial focuses on poses and activities that are used in pornographic material. The mud
wrestling had no proper connection to the product. On the whole the commercial's sexual innuendoes,
the way the women were manipulated, their scant clothing and particularly their suggestive movements
and poses make the commercial discriminatory towards women. The women are used as an eye-catcher
in a degrading manner, without a proper connection to the product. Consequently the Consumer
Ombudsman concluded that the commercial was contrary to good practice. The fact that the commercial
was not shown until after 9 pm made no difference.
Read more
Can lingerie ads go too far?
21
Showing nudity requires a sense of time and place
The Consumer Agency occasionally receives complaints from people who have been offended by
nudity in ads or commercials. The use of nudity and sexuality can easily be contrary to good
practice, but sometimes nudity is permissible.
An ad or commercial that many people find tasteless or that arouses negative images does not
necessarily violate the law. All things have to be considered before drawing a conclusion. Scant
clothing may very well fit the situation when lingerie or shower soap is advertised, for example.
A Knorr commercial starts with a man cooking soup. After tasting the soup the man and the woman
exchange glances and the man sets a timer to ring in five minutes. The couple hurriedly help each other
undress, laughing as they do so. They run out of the house and begin rolling in the snow and throwing
snow at each other. Finally they run back inside, where dressed in robes they enjoy their soup by
candlelight. The commercial ends with the words: "Knorr soup. It adds a taste of life to a cold day."
The nude man and woman were filmed in the same way. They were not shown from an angle or in a
position that made their naked bodies sex objects. Neither of them was used as an eye-catcher in a
degrading way. The commercial did not contain elements that might be degrading to men or women, so
it was not contrary to good practice. The type of natural nudity shown in the commercial could not even
be judged unsuitable for children.
Sexual stereotypes can be funny
Advertising can also be considered discriminatory if it reinforces negative attitudes towards a particular
group of people. Bolstering or reinforcing traditional gender roles can be discriminatory if it is done in a
way that can be considered degrading. Emphasizing differences between the sexes is not automatically
contrary to good practice, however.
An Atria food commercial shows a man trudging home from work, complaining about his hard day and
looking for forks in the wrong place. His wife is making dinner and thinks to herself how difficult life
can seem on an empty stomach. She passes the man his plate and as soon as he begins to eat he
becomes a new person. Now in good spirits, he asks if the wife would like to go to the theatre. The
commercial ends with the woman's voice saying, "Good food makes you feel better. Atria."
The commercial plays on stereotypes regarding men and women. The man and women play roles in
which the wife is a motherly figure who makes her husband dinner, finds the silver and puts everything
on the table. The man forgets to buy things at the store, does not even know where the silver is kept and
has an aversion for vegetables.
These role models are fairly outmoded and the commercial is obviously meant to have a humorous tone.
Although the commercial reinforces certain views of men, as seen from the wife's viewpoint, the
presentation style as a whole cannot be regarded as degrading to men. Nor can the commercial be
regarded as reinforcing discriminatory attitudes towards men, whose position in society is generally
stronger than women's. The commercial was not considered contrary to good practice.
Read more
22
Erotic images are constantly used to spice up marketing. It's no wonder that many people see
lingerie ads with lots of bare skin as a sign of the increasing pornographization of society.
Even if lingerie ads show beautiful models without clothes, they cannot be considered contrary to good
practice simply because of nudity.
Advertising lingerie naturally involves showing women's bodies, and the use of an attractive model to
draw attention to an ad does not violate the law. But if an ad contains sexual innuendoes or
pornographic poses that create the impression that women are being treated as sex objects or can be
considered degrading to women, it crosses the line.
A consumer complained to the Consumer Agency about a Hennes & Mauritz lingerie commercial that
was shown on television in November and December 2006. The consumer thought the commercial was
offensive because it bordered on pornography and distorted children's gender equality education.
The commercial was mainly shown after 9 pm, but it was also shown before children's bedtime.
The commercial starts with a woman in a silk dressing gown reading a book on a sofa. She gets up and
goes to the bedroom. She turns out the lights, lets down her hair and takes off her dressing gown,
revealing a bra and panties. Price information for push-up bras appears on the screen. In the bedroom
the woman lies down on her side and a cat jumps up on the bed. The woman strokes the cat's fur. The
final scene shows the woman in bed along with the company's logo and price information for lingerie.
Although the commercial was probably seen by minors, it does not use nudity or sexuality in a way that
can be judged contrary to good practice.
Even if this commercial cannot be considered to cross the line, advertisers should show social
responsibility when it comes to what kind of behaviour models and attitudes they offer to minors in
marketing.
23
Harmonizing consumer legislation will not affect the principle
of good practice
The EU's member states must implement the Directive on Unfair Commercial Practices by 12
December 2007. The directive will harmonize consumer legislation in the European Union but
will allow the member states to retain some national features of consumer protection.
The EU has adopted a directive to harmonize rules concerning unfair commercial practices that harm
consumers' economic interests.
The Directive concerning unfair business-to-consumer commercial practices in the internal market
prohibits commercial practices that distort consumers' economic behaviour. This is supplemented by
rules regarding misleading and aggressive commercial practices. The directive also contains a blacklist
of commercial practices that are unfair in all circumstances.
The directive does not address legal requirements related to taste and decency, which vary widely
among the member states. Consequently it will not have an influence on the general clause in Finland's
Consumer Protection Act according to which marketing may not be contrary to good practice.
Provisions requiring compliance with good practice have also been applied in Denmark, Norway and
Sweden. According to the implementation proposal the member states can continue to apply these
provisions in future.
The purpose of the directive, which was adopted in 2005, is to contribute to the proper functioning of
the internal market and achieve a high level of consumer protection.
24
Businesses can make advance enquiries concerning marketing
In the middle of a campaign an advertiser may have doubts about whether planned measures are
permissible. It can send an advance enquiry to the Finnish Consumer Agency to make sure.
An advertiser can ask the Consumer Agency for an opinion on the legality of planned marketing
measures. The Consumer Agency does not reject or approve measures outright, but gives advice on
general policy and principles so that the advertiser can proceed with planning and marketing. The more
specifically measures are described in an advance enquiry, the better the Consumer Agency can answer
questions.
In 2006 the Consumer Agency received nearly 100 advance enquiries. Roughly one-fifth of these
concerned marketing aimed at minors. This suggests that advertisers have understood the special
requirements related to marketing aimed at children and young people and want to take them into
consideration in the planning stage. Numerous enquiries were also received concerning promotional
games, different kinds of contests and the use of additional benefits in marketing.
The Consumer Agency agrees on a timetable for answering an advance enquiry with the advertiser.
Unless an advertiser requests faster handling of the matter, it generally tries to reply within two weeks.
Some cases require broader study and deliberation, however, and therefore take more time.
Read more
Enquiries concerning marketing
25
News from abroad
Norwegians concerned about marketing of mobile content services to children
The Norwegian Minister of Children and Equality and the Norwegian Consumer Ombudsman brought
together actors in the mobile phone field to discuss the marketing of mobile content services.
Norwegians have been upset over the way in which children have been lured into using mobile content
services with different types of contests and prizes. Some children have even received ads for porno
films on their phones.
The Norwegian Consumer Ombudsman thinks that present possibilities to intervene in the marketing of
mobile content services are inadequate. At the meeting he emphasized actors' obligation to find means
so that parents can better control the use of mobile content services by their children.
Companies that participated in the meeting included Telenor, Netcom, NoExtras.net, Mobyson, Tele 2,
Sulake and Ericsson IPX, among others.
Swedish rapporteur on sexual discrimination in advertising
In Sweden a rapporteur has been appointed to study a reform of legislation so that sexual
discrimination in advertising can be brought within the sphere of consumer protection legislation.
In the other Nordic countries discrimination has been taken into consideration in legislation. In Finland,
sexual discrimination in advertising is not allowed on the basis of the general clause in the Consumer
Protection Act, according to which marketing may not be contrary to good practice. In Sweden sexual
discrimination is evaluated by the Ethical Council against Sexism in Advertising, which is a
self-regulatory body.
26

1/2007 - Kuluttajavirasto

Transcription

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