Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
In September 2020, the ASA issued a statement on its likely approach where concerns are raised about ads which do not depict current government rules and guidelines on measures designed to limit the spread of COVID-19 through the population.
It took a pragmatic approach to this issue, recognising that many ads were created before COVID-19 was a concern and expressing its view that the overwhelming majority of ads are not ‘instructional’, i.e. they don’t actively tell or encourage the public to behave in a certain way.
The ASA and CAP recognise that there is a balance to be struck between ensuring that advertising is responsible, whilst recognising that the public is generally able to draw distinctions between the reality of current events and the variety of different creative contexts that ads can be set in.
The ASA Council agreed three guiding principles that it will take into account when assessing these issues until further notice.
a) Ads which actively discourage protective measures such as mask wearing or social distancing are likely to be irresponsible in all circumstances and therefore a breach of the Code. The ASA will be likely to investigate such ads with a view to banning them.
b) Ads which are responsibly created and which make explicit reference to the existence of the pandemic must, where relevant, show depictions of social distancing, the correct use of face masks and other protective Covid-19 measures in line with current Government advice at the time the ads were created.
c) Ads which are responsibly created but which do not explicitly reference the existence of the pandemic would not be likely to need to depict coronavirus protective measures such as social distancing and the use of face masks.
The ASA additionally stated that advertisers should follow the government advice appropriate for the nation of the UK that the ad is being shown in, where possible. It added that advertisers who are creating ads for a UK audience should carefully consider how to avoid conflicts with the current guidance or rules of any one of the four nations.
CAP has considered how these general principles are likely to apply in practice.
Guiding principle A
Ads which actively discourage protective measures such as mask wearing or social distancing are likely to be irresponsible in all circumstances and therefore a breach of the Code. The ASA will be likely to investigate such ads with a view to banning them.
This is likely to include any ads which expressly encourage the audience to disregard whatever protective measures are currently required or strongly advised by the Government, for example, telling the audience that they shouldn’t or don’t need to wear a face-covering in a situation where it is required by law. The principle is also likely to apply to ads which mock safety measures or expressly encourage consumers to ignore any requirements around social distancing or meeting people from other households, where the measures are expressly required or strongly advised.
The principle is also likely to apply in cases where the product or service being advertised directly or indirectly encourages consumers to disregard protective measures, such as a competition or prize draw where entrants are required to submit a photograph via social media of themselves ignoring social distancing measures in places where they should be observed.
Marketers are reminded that the use of imagery could also be seen to actively discourage consumers from following safety regulations and guidance. For example, an ad featuring a small group of friends on public transport where the characters are initially sat apart and in face-coverings as the guard passes through - but who take the coverings off and sit together and laugh as soon as the guard has left the carriage, could be seen to actively discourage, belittle or disregard protective measures.
CAP considers it likely that most ads will not fall into this category and that it is not likely that ads will inadvertently encourage consumers not to follow safety guidelines.
Guiding principle B.
Ads which are responsibly created and which make explicit reference to the existence of the pandemic must, where relevant, show depictions of social distancing, the correct use of face masks and other protective Covid-19 measures in line with current Government advice at the time the ads were created.
This is likely to include ads which make reference to the brand’s response to the coronavirus pandemic and the measures they’ve implemented, as well as ads which otherwise explicitly refer to the pandemic.
If relevant to the featured scenes and scenarios, ads should show health measures being followed in ads which specifically refer to the actions a business has taken during the pandemic as well as those ads which reference the existence of the pandemic, such as invitations to ‘beat those lockdown blues’ with some special offers.
Ads which include references to “during these difficult/challenging times”, or similar, are also likely to be interpreted by consumers as a reference to the coronavirus and might therefore trigger the need to show health measures if relevant to the featured scenes and scenarios.
Guiding principle C
Ads which are responsibly created but which do not explicitly reference the existence of the pandemic would not be likely to need to depict coronavirus protective measures such as social distancing and the use of face masks.
Despite peaks and troughs in infection rates, the pandemic is still very much present. However, ASA/CAP recognise that consumers will understand that ads often depict ’realities’ that might not completely align with their experience of real life. Unless those ads explicitly reference the virus, they are not likely to be seen to discourage or undermine (directly or indirectly) current safety measures if behaviour which is ‘normal’ in the ad’s version of reality is shown.
As such, the ASA is likely to take the position that ads which make no reference to the virus and are otherwise responsible, would not cause consumers to disregard their knowledge and understanding of whatever measures are required at the time of viewing the ad or encourage them to act contrary to that knowledge and understanding. For example, although an ad which referenced a current offer such as “half price x this weekend” may be set at a time when the pandemic is present, if the ad does not otherwise reference the virus it is not likely to trigger the need to depict safety measures.
Whilst the ASA/CAP are likely to continue taking a pragmatic approach to ads which feature a different world from the one we currently live in, marketers should be aware that not depicting safety measures in scenarios where consumers might expect to see them is very likely to generate complaints from members of the public concerned about the influence of ads on the behaviour of others.
The ASA and CAP recognise that some individuals are exempt from the Government rules on wearing face coverings and that the reasons underlying these exemptions are not likely to be visible to others. However, marketers should not use this exemption as a reason not to feature face coverings where this is called for (i.e. ads that specifically reference the pandemic and which also feature scenes and scenarios where face-coverings should typically be worn by most people).
For nationwide campaigns which actively reference the coronavirus, care would need to be taken if only depicting the nation where the least stringent measures are in force (at the point the ad was made), especially if stronger measures apply in other nations. Marketers may opt to depict the more stringent measures for nationwide ads that make explicit references to the coronavirus and which depict scenarios where those measures should be followed.
It is also recognised that sometimes Government guidance and regulations differ between specific regional locations where on occasion, stricter regulations (such as temporary lockdowns) apply, often at very short notice and for a short period of time. The ASA is likely to take a practical view of the challenges that advertisers face when creating ads in regions which are suddenly subject to different or more stringent measures and would be unlikely to find otherwise responsible ads to be problematic unless they actively discouraged regional (or national) protective measures. For example, provided it is otherwise responsible, an ad seen in regional press which references the pandemic and includes less strict measures applicable outside of that region, will not automatically be considered problematic unless that ad goes as far as to discourage the regional measures.
Marketers of products or services designed to protect against, diagnose or treat coronavirus should also read CAP Advice on Coronavirus and COVID-19.