Background
Summary of Council decision:
Three issues were investigated, of which two were Upheld and one was Not upheld.
Ad description
A cinema ad for Viva!, a vegan campaigning charity, was seen in December 2017 before the 12A-rated films Jumanji: Welcome to the Jungle and Star Wars: The Last Jedi. A pig was featured running around in a field and the voice-over stated, “All creatures can experience pleasure. She is a pig called Hope rescued by Viva. This is her dance of joy for being outdoors for the first time”. Subsequent footage showed individual or small groups of pigs indoors behind the bars of a pen and a number of pigs in a very crowded pen. The voice-over stated, “It’s something most pigs will never know as 90% are factory farmed. Set them all free. Try Vegan.”
Issue
The National Pig Association and seven members of the public challenged whether:
1. the ad was misleading because they believed it featured farming methods that were no longer allowed in the UK;
2. the claim “90% of pigs are factory farmed” was misleading and could be substantiated, because it implied that the vast majority of pigs farmed in the UK were restricted to the indoors and never experienced the outside;
3. the ad contained content which was likely to cause distress without justifiable reason.
Response
1. Viva! said the intensive farming footage shown in the ad was all taken on farms in the UK and that the ad showed the rack, which they maintained was used (legally) on most UK pig farms, when sows were artificially impregnated. Viva! cited Defra's Code of Recommendations for the Welfare of Livestock: Pigs, which stated that there were certain exceptions to the requirement that "a pig shall be free to turn round without difficulty at all times", including "for the purpose of service, artificial insemination or collection of semen; provided that the period during which it is so kept is not longer than necessary for that purpose" and also stated "You should keep the sows in their groups until insemination, at which time they can be moved to an appropriate stall or pen and inseminated. Sows should be allowed time to settle down in the stall or pen, and then exposed to a boar in order to encourage the standing reflex before artificial insemination takes place". Viva! said that, with sows giving birth two and a half times per year on average, they would be restrained for more than three months per year. Viva! were aware that on some farms, pigs were moved into straw-based systems, but that it was not a legal requirement and was not their experience on most farms they had seen in the UK. They believed the ad showed accepted practices in the UK pig industry in terms of stocking density and the environment in which the pigs were shown.
2. Viva! cited figures from the Agriculture & Horticulture Development Board dated November 2008 which stated that 74% of pigs were bred indoors; 95% of pigs were fattened indoors and that 99% were finished indoors. Referring to Defra figures, Viva! calculated that 4,451,000 pigs were reared for meat in the UK in any six-month period. They said the pig industry's top figure for pigs reared for meat outside was 5% (222,550 per year). They said the industry also claimed that 40% of sows (166,000) farrowed outdoors, giving a total figure of 388,550 outdoor reared pigs, equating to 7.98% of pigs being outside for at least the first part of their lives. They said that, given that almost all pigs were then finished indoors, the percentage of pigs kept outside for the whole of their six-month lives would be much lower. They said that, given that there were roughly two generations of pigs killed each year and that breeding sows would live for a number of years, the overall percentage of pigs outside in the UK in any one year would be much lower and that, if anything, the 90% figure was underestimated.
3. Viva! said the ad was passed by the BBFC as PG but by the Cinema Advertising Association (CAA) as 12A. Viva! agreed with the more cautious, CAA assessment. They recognised that the ad contained challenging content, but considered the restriction meant that it would not be scheduled inappropriately.
The CAA similarly considered that the 12A restriction would prevent the ad being seen in contexts where the content would be distressing to the extent that it breached the Code or where its scheduling was inappropriate. They supplied a copy of their advice letter to Viva!, which explained that the decision to limit the ad to being shown around 12A, 15A, 15 and 18 certificate films only was taken because they considered the images of intensively farmed animals were likely to unduly upset younger children, who were unlikely to be aware of the realities of intensive farming or the complex arguments for and against intensive stock rearing.
Assessment
1. Upheld
The ASA considered consumers would interpret the ad to mean that pigs that were intensively or factory farmed in the UK would be kept in conditions similar to those shown in the indoor footage that appeared in the ad most of the time.
Defra's guidance allowed for pigs to be held in conditions where they were unable to turn around for the period between seven days before the predicted day of farrowing and the day on which the weaning of the piglets was complete, which we understood was when the piglets were between 21 and 28 days old. Defra's guidance also allowed for pigs to be confined for certain veterinary procedures, including artificial insemination; when being fed and weighed and while their accommodation was being cleaned. The guidance also stated that weaners and rearing pigs should be placed in groups as soon as possible after weaning. There were circumstances, therefore, in which scenes of pigs being kept in narrow stalls or in groups would be in line with Defra's guidance.
However, in Viva!'s ad, the dark lighting and close up and brief nature of some of the footage meant that it was not clear why pigs were being accommodated in the way shown or for how long. In conjunction with the references in the voice-over to the pig running around in the field being "rescued" and her "dance of joy for being outdoors for the first time", we considered consumers were likely to interpret the indoor scenes to mean that pigs that were intensively or factory farmed in the UK would be kept in the indoor conditions shown or similar most of the time, which was a practice that we understood would not be in line with Defra's guidance.
We considered the information supplied by Viva! did not demonstrate that pigs that were intensively or factory farmed in the UK would be kept in the indoor conditions shown in the ad or similar most of the time. We therefore concluded that the ad was misleading.
On that point the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation).
2. Upheld
We noted that the ad referred to a pig being "outdoors for the first time" after being "rescued" and that being outside was "something most pigs will never know as 90% are factory farmed". We considered consumers would interpret the ad to mean that 90% of pigs in the UK were intensively or factory farmed and would never experience the outside environment as a result. We noted that information published by the organisations Compassion in World Farming and the RSPCA stated respectively that 40% and 42% of breeding sows were kept outdoors, with their piglets staying with them until weaning was complete at between 21 and 28 days old. After weaning, 96% would be kept indoors until slaughter at six months. We acknowledged that exact timings were likely to vary from farm to farm but noted from the evidence that 40–42% of breeding sows were kept outdoors and that, for those sows, their young would be with them until their weaning was complete at between 21 and 28 days. For those pigs and piglets, while they were farmed intensively, we considered it was not true to say that they would never experience life outside. We concluded therefore that Viva! had not substantiated the claim and that it was likely to mislead.
On that point the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation).
3. Not upheld
We acknowledged that the ad contained images and subject matter that some viewers would find challenging. We considered that the decision to limit the cinema ad to being shown around 12A, 15A, 15 and 18 certificate films only meant it would be seen by an audience that was likely to be able to understand the nature of the debate that the ad raised and that it was not out of place in the context of those films. With the classification that had been applied to it, we concluded that the ad did not breach the Code.
On that point we investigated the ad under CAP Code (Edition 12) rules 1.3 1.3 Marketing communications must be prepared with a sense of responsibility to consumers and to society. (Social responsibility) and 4.2 4.2 Marketing communications must not cause fear or distress without justifiable reason; if it can be justified, the fear or distress should not be excessive. Marketers must not use a shocking claim or image merely to attract attention. (Harm and offence), but did not find it in breach.
Action
The ad must not appear again in the form complained of. We told Viva! to ensure their ads did not mislead about, for example, how animals would be accommodated in intensive farming environments.
