How many times have advertisers wished that they could get their ad on TV without having to get past the gatekeepers at Clearcast? With the advent of Broadcaster Video-On-Demand, it may have seemed as though that would be possible, as BVOD is governed by the CAP Code, not the BCAP Code, and subject to a different regulatory regime. But in practice, our experience has been that even if the media-buy is for BVOD only, with no broadcast TV, the broadcasters have safeguarded their OFCOM licences by insisting that advertisers put their BVOD ads through Clearcast. 

A policy shift?

Last week's decision by the Advertising Standards Authority (ASA) to uphold a single complaint against ad by Kerry Foods for Cheestrings is a clear demonstration that you should be careful what you wish for. It is notable that there is no reference whatsoever to Clearcast in the adjudication. You can watch the ad here.

In the case of adjudications concerning broadcast ads, the ASA routinely asks Clearcast to explain the basis on which they cleared an ad. It is anomalous, however, that even when a BVOD has been submitted to Clearcast, the ASA does not ask them to explain their rationale. For example, when the ASA investigated a BVOD ad for the horror film Evil Dead Rise in November 2023, both the advertiser and the platforms (Channel 4, Channel 5, Sky and ITV) all referred to the fact that the ad had been submitted to Clearcast, who had imposed a post 9 p.m. scheduling restriction. However, the ad was so grizzly that the ASA upheld the 8 complaints on the basis that the ads “contained images and a level of jeopardy that was not suitable for general audiences, even after 9 pm, we concluded that the level of restriction applied had not been appropriate and the ads were, therefore, likely to cause unjustifiable fear and distress to some viewers.” Yet it appears that the ASA did not ask Clearcast why they'd approved the ad with the 9 p.m. restriction, as they would have done with a broadcast ad. Presumably this was because pre-clearance is not a licence requirement for an exclusively BVOD ad, but if anyone from Clearcast or the ASA reads this and would care to explain the reasons, we'll add a postscript to this post. 

In any event, the absence of any reference whatsoever to Clearcast in the Kerry Foods adjudication implies that Channel 4 on Demand has changed its policy, and did not require Kerry Foods to submit the ad to Clearcast before they transmitted it. With the benefit of hindsight, both Kerry Foods and Channel 4 may now regret that decision. If you watch the ad, you can decide for yourself whether Clearcast would have approved this ad, but it seems unlikely. But from a compliance perspective, it smells like a ripe Stilton, or even a Stinking Bishop. 

One of the potential implications of this adjudication is therefore that the platforms will revert to their previous, more cautious approach, requiring all BVOD ads to be submitted to Clearcast, just like both broadcast TV ads and those with a mix of broadcast and BVOD media.

Why was the Cheestrings ads banned?

The ad starts with a woman placing her re-useable shopping on an island in her kitchen. Kerry were clearly targeting a very middle class demographic. The ad then takes a surreal turn as her daughter, who is obviously of primary school age, dives head first into the shopping bag, grabs a packet of Cheestrings which she then starts to eat. As the adjudication says, “She was then seen floating in a fictional world of Cheestrings.” At various points we see Garfield, the licenced cartoon cat, eating pizza and saying “Bury me in cheese”. On-screen text and a voice-over says, “This summer win hundreds of prizes, including a Garfield movie themed trip to California. With Cheestrings and our new pizza flavour. Get a slice of the Garfield action”. An on-screen disclaimer says “purchase necessary, promotional packaging and receipt required, online entry only, 21+, ends 28/7/24, T&Cs apply”.

Only one person complained, saying that as the ad was for an HFSS food and targeted through its content directly at pre-school or primary school children, it should not have contained a promotional offer (i.e. the trip to California) and it should not have featured a licensed character popular with children (i.e. Garfield). 

Kerry tried to argue that the ad was targeted at parents, not children, but the ASA rejected that proposition on the basis that several aspects of ad would have been appealing to the under-12s. Having watched the ad, its hard to argue with that conclusion.

Kerry also argued that Garfield first appeared in the 1970's, and his inclusion appealed to the nostalgia of parents. The ASA pointed out, however, “the timing of the ad coincided with the release of a new Garfield animated film, which had a ‘U’ rating and was likely to be popular with under-12s.”  Correlation is not causation, and this could just be a coincidence, but the ASA appear to be a very cynical lot…..and they're all too young to remember the 1970's anyway.

Although the ASA was more sympathetic to Kerry's argument that a trip to California would appeal to adults, they pointed out that this did not preclude it from appealing to children as well. 

Kerry also defended their targeting of the ad, pointing out that it was only broadcast on on-demand channels age-gated to logged-in users who were 16 years of age and over, and/or was scheduled not to appear in or around programmes commissioned for under-16s. They also said that Channel 4 on Demand has parental controls to make it less likely that young children saw the ad and that they had checked the platform’s metrics and understood it to have an almost exclusively adult audience. 

However, the ASA said that because this HFSS ad targeted children aged under 12 through its content, it broke the rules against both the inclusion promotional offers and the featuring of licensed characters, regardless of how it was directed. 

The cat who got the cream? Or sick as a dog?

The adjudication states that the campaign has finished and that there are no plans to run the ad again, so Kerry may be satisfied that the ad did its job. On the other hand, they've now suffered the reputational damage of an upheld ASA complaint.

The lesson for advertisers who want to run an ad campaign exclusively on BVOD and circumvent the usual process of obtaining Clearcast approval is that you'd better take care (and legal advice?) to ensure that you comply with the CAP Code. Otherwise, you may feel like the cat who got the cream when your ad is transmitted without the bother of obtaining Clearcast approval, but if the ASA ends up upholding a complaint against your ad, you'll end up feel as sick as a dog.