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.
Rule 4.1 states that marketing communications must not contain anything that is likely to cause serious or widespread offence, and specifies that particular care must be taken to avoid causing offence on the grounds of: age; disability; gender; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
Marketers should be aware of the potential to cause serious or widespread offence when referring to different races, cultures, nationalities or ethnic groups, and ensure that their marketing communications are not likely to do so.
In 2016, a complaint about a press ad which featured an illustration of a character referred to in the ad as a ‘golly’ holding a pint of ginger beer with text underneath stating “ENGLISH FREEDOM” was upheld. The ASA considered that people were likely to view the character as representing negative racial stereotypes, and its inclusion was likely to cause serious or widespread offence. The ASA also considered that the inclusion of the words “ENGLISH FREEDOM” in the ad was likely to contribute to that offence, because in combination with the image, it could be read as a negative reference to immigration or race (Ginger Pop Ltd 21 September 2016).
Marketers should also consider the context in which their ads will be understood. Complaints about a regional press ad for mattresses, which featured an image of a Union Jack and a cartoon mattress wearing a green surgical mask, were also upheld in 2020. Text in the ad stated, “BRITISH BUILD [sic] BEDS PROUDLY MADE IN THE UK. NO NASTY IMPORTS”. Whilst the reference to “BRITISH BUILD”, and the image of the Union Jack, were intended to draw attention to the fact that their beds were made in the UK, the ASA considered that the phrase “NO NASTY IMPORTS”, in combination with the image of the surgical mask, was likely to be taken as a reference to the coronavirus outbreak. The ASA considered that in combination with the image, the reference to “nasty imports” was likely to be read as a negative reference to immigration or race, and in particular as associating immigrants with disease, and therefore that the ad was likely to cause serious and/or widespread offence on the grounds of nationality or race ().
Advertisers should take care to ensure that they do not make generalisations based on race in a way which is likely to offend. Even if generalisations do not mention specific nationalities or racial groups, they may cause serious or widespread offence. The ASA upheld complaints about a business fax that was headlined “Asylum Seekers” and stated “Are the French Authorities doing enough to stop the 200,000 illegals entering the UK every year …?” It considered that, because the figures were unsubstantiated, the fax implied all asylum seekers were illegal and was likely to be interpreted as racist (21st Century Faxes Ltd, 16 January 2002).
The ASA received complaints about a television ad for KFC on the grounds that it perpetuated a negative ethnic stereotype Whilst the ASA acknowledged that the black characters in the ad were prominent, they did not consider that they were depicted in a derogatory manner, or that the ad went as far as suggesting that all black people liked chicken, and the complaints were not upheld ().
Whilst the ASA appreciates that it is not generally the advertiser’s intention to offend, the ASA will consider how viewers are likely interpret the ad, rather than the advertiser’s intention. Light-hearted depictions may sometimes be acceptable; however humour does not in itself prevent an ad from being likely to cause offence, and humour which is derived from race is often likely to be offensive. A radio ad was upheld by the ASA for using a character’s accent in an ad in a way which was likely to cause offence. The ad featured a character buying a kitchen, who stated "Surplised" before he corrected himself and said "I mean surprised". The ASA considered that whilst the ad was intended to be an ironic use of humour, the humour was derived from the ethnicity of the character, and concluded that it was likely to cause serious offence to some people, and be seen as discriminatory (Brunel Supplies, 07 August 2013).
In 2017 a complaint about an ad which featured Floyd Mayweather, and stated “always bet on black”, was upheld because, whilst the advertiser felt that the ad was humorous, and stated that Floyd Mayweather approved the ad, the ASA considered that readers would nevertheless be offended by the invitation to always bet on the outcome of a boxing match based on a boxer’s race, and the message that the boxing match was a fight between two different races. (Paddy Power, 20 September 2017).
Similarly, a Facebook post with the heading “BLACK CARS MATTER. I ASKED HOLLY FOR A HEADLINE FOR THIS A4 (Audi) AND SHE SAID: ‘ONCE YOU GO BLACK, YOU NEVER GO BACK!” and further text which stated “MANUAL GEARBOX (BIG GEARKNOB)”, was ruled not to be acceptable despite the advertiser believing it was a inoffensive 'pun'. In that case, the ASA decided that not only did the ad trivialise the Black Lives Matter movement, but also fetishised and objectified black men, and was likely to cause serious offence ().