Reed Smith: what the new rules on gender stereotyping mean for advertisers

By Nick Breen and Caroline O’Doherty

In May this year the Committee of Advertising Practice (CAP) published a consultation paper outlining a proposed new rule tackling gender stereotyping in advertising.

The draft rule is: “Advertisements must not include gender stereotypes that are likely to cause harm, or serious or widespread offence.”

Although it will be helpful to have a specific reference in the codes to gender stereotyping, the draft rule arguably doesn’t change the existing position. The CAP code already provides that ads must not contain anything that is likely to cause serious or widespread offence. Indeed, it is the existing ‘Harm and Offence’ rules which the ASA has relied on to-date to tackle sexist advertising and harmful gender stereotyping.

The guidance

Fortunately, CAP has also produced a guidance paper to give further colour to what is expected of advertisers.

The guidance covers the depiction of stereotypes in a wide range of scenarios: gender-stereotypical roles and characteristics; pressure to conform to an idealised gender-stereotypical body shape or physical feature; ads aimed at or featuring children or vulnerable groups; and ads featuring people who don’t conform to a gender stereotype.

The guidance paper lists a number of examples to assist advertisers with understanding the scope and application of the proposed new rule, such as:

1/ Advertisers can feature idealised bodies, and physical features stereotypically associated with women or men (e.g. a small waist / six-pack) but they need to take care to avoid the suggestion that an idealised body, or a physical feature correlates with happiness or a person’s emotional wellbeing.

2/ Advertisers should avoid mocking people for not conforming to stereotypes, including in a context that is intended to be humorous.

Importantly, CAP proposes that complaints will be considered from the eyes of those represented in ads, rather than from the perception of the advertisers creating them. This means that, in investigating complaints, the Advertising Standards Authority (ASA) will be less inclined to dismiss such complaints by labelling the depicted representations as ‘banter.’

Enforcement

Once the new gender stereotyping rule is finalised (expected later this year), its enforcement will be undertaken in the same manner as the other rules. If the ASA finds that an ad has breached the CAP/BCAP Codes, it will seek assurances from the responsible advertiser and the ad will either be withdrawn or amended.

The ASA’s adjudications are monitored by journalists, meaning that an adverse adjudication can have severe PR implications for brands. Other sanctions, for severe or repeated infringements, include being referred to the Trading Standards Authority or Ofcom which have the power to fine advertisers and withdraw broadcast licences.

The message being sent to advertisers is clear – negative stereotyping in advertising is a thing of the past. Gender equality has become an important agenda in modern society and it is incumbent on the industry to take a progressive and responsible approach to ensure that this agenda is supported and reinforced.

Nick Breen (left) is an associate and Caroline O’Doherty a trainee at law firm Reed Smith.

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