Advertising law expert Steve Kuncewicz discusses how when it comes to advertising, it’s not just WHAT you say, but WHERE you say it
BrewDog are no strangers to the Advertising Standards Authority (ASA). This time around, the brewer has been the subject of complaints for its campaign to support PunkAF, a non-alcoholic IPA. A billboard featuring the phrase ‘Sober as a Motherfu-‘, cutting off the end of the obvious swear word, has received over 20 complaints to the ASA. Many are in relation to the placement of the billboard – directly opposite a primary school.
The ASA is now investigating BrewDog on the question of whether or not the new ad caused “serious or widespread harm.” It’s sparked discussion of what’s acceptable in advertising copy, though it may be that BrewDog and its agencies thought the cutting of the swear word may be enough to avoid causing “serious offence.”
Whilst BrewDog may view the ASA’s remit as narrower than it is and see them as having few available sanctions to deter them, the fact remains that the UK’s self-regulatory system is bought into by every member of the advertising industry. If the ASA chooses to deny BrewDog further advertising space, then the major networks will follow suit and the wider sector will comply with their rulings; the community does, after all, fund regulation.
The issue of whether or not ‘any publicity is good publicity’ represents a line that BrewDog has been happy to walk for years now, but many complaints relate to the fact that the ad was displayed in a medium where it could be seen by children – forcing another debate around consideration of WHERE your message goes, as well as what it contains.
Back in 2017, the ASA launched guidance on media placement restrictions with the stated aim of protecting children and young people from marketing that includes “sensitive content.” What’s key in this case is whether sensitive content is placed in media where children and young people make up a significant proportion of the audience.
Ironically, had this campaign played out online, BrewDog may have been able to restrict access to its website had they wanted to lead with this message or place the creative more carefully, especially if they could show that their audience through those channels was largely over 18. Notably, the guidance confirms that marketers and advertisers need to show that they have taken “reasonable steps” to limit likely exposure of campaign material to “protected age categories.”
BrewDog has tangled with the ASA before on similar issues, and given that the marketers themselves (i.e. BrewDog) are responsible for compliance with the CAP Code, it won’t be an acceptable defence to argue that an intermediary or agency failed to properly target this campaign (in this case, the self-styled creative studio Uncommon and media planners Craft Media).
There may be some contractual redress available to BrewDog in that regard if a proper sign-off process hasn’t been followed, and it’s hard to see how they would willingly want to find themselves in breach of the placement rules as this may undermine any wider argument they may have over how harmful the content is and the intent behind it. It may be that the ASA demands that BrewDog pull this campaign, and that in itself is a powerful enough sanction to force them to at least target their campaigns more carefully in the future.
The tone of their messaging may ultimately stay the same for the sake of having the argument – given the brand’s love of controversy – but where it appears is likely to be approached very carefully going forward.
Steve Kuncewicz is a partner at commercial law and insurance firm BLM.