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 2020 the ASA undertook research to establish whether ethnic and racial stereotypes in advertising might contribute to real-world harms and, if so, to what extent. In May 2023 CAP published guidance advising marketers how to avoid racial and ethnic stereotypes that are likely to cause harm or serious or widespread offence in advertising. This guidance draws on the conclusions of that research to set out a more detailed framework of principles describing specific types and treatments of stereotypes identified as having the potential to cause harm. It provides clarity and detail on factors the ASA is likely to consider when assessing complaints. Marketers should consult this guidance before featuring stereotypical depictions in ads.
The article below reflects learnings from published ASA decisions. As more decisions are published in light of the new guidance, this article will be updated.
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 race (alongside other characteristics).
The inclusion of negative racial stereotypes is likely to cause serious or widespread offence. An ad which featured a woman covered in black paint, with bold red lipstick, and prominent whites of her eyes, was considered likely to cause serious offence, The ASA considered that the imagery shared strong similarities with “blackface” makeup, which had historic connotations with mocking portrayals of black people, was a negative racial stereotype and was widely considered to be racist in nature (JD Recruitment Group, 15 December 2021). See also (Ginger Pop Ltd, 21 September 2016).
An ad which showed a white male prison officer and black male prisoner interacting in a prison setting was considered likely to cause offence. Elements used in the ad, such as a hairstyle and hairstyling tool which were important aspects of black culture, had the cumulative effect of emphasising the prisoner’s race. As a result, in the context of a prison scene, the ASA considered that the ad had the effect of perpetuating a negative ethnic stereotype about black men as criminals (The Ministry of Justice, 03 May 2023).
Marketers should also consider the context in which their ads will be understood, and consider the interpretation of the ad in that context. 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”. 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. This, in combination with the image, was likely to be read as a negative reference to immigration or race, and in particular as associating immigrants with disease. The ASA concluded that the ad was likely to cause serious and/or widespread offence (Vic Smith Bedding Ltd, 11 March 2020).
Ads should not reinforce negative stereotypes by presenting people in a mocking or derogatory manner, or by making generalisations. The ASA did not uphold complaints about an ad for KFC. Complainants believed that the ad, which depicted two black men in a KFC restaurant, perpetuated negative ethnic stereotypes, specifically the perceived stereotype created in colonial America (as a way of mocking enslaved black people) that all black people loved to eat fried chicken. The ASA noted that several people of different ethnicities were shown in the restaurant, and that the men were not presented in a derogatory or mocking manner. It therefore considered that the ad did not suggest that all black people ate fried chicken, or were more likely to do so than any other ethnic group (Kentucky Fried Chicken Ltd t/a KFC, 09 June 2021).
Ads which intend to raise awareness of serious issues may sometime feature negative racial or ethnic stereotypes in a way which challenges them. The guidance is not intended to prevent ads from featuring such stereotypes to draw attention to serious issues. However, even ads that use depictions of harmful racial or ethnic stereotypes in order to challenge them may risk causing harm, regardless of the advertiser’s intention. Advertisers should take care to strike a responsible balance and ensure that the purpose of depicting racial or ethnic stereotypes is clear and proportionate to the main message of the ad.
Whilst the ASA appreciates that it is not generally the advertiser’s intention to offend, it will consider how viewers are likely interpret the ad rather than the advertiser’s intention.
Light-hearted depictions may sometimes be acceptable, but the use of humour or banter is unlikely to mitigate against serious widespread offence. The use of humour which is derived from race is often likely to be offensive.
Humour which can be understood as mocking or discriminatory will be considered a breach. A complaint about radio ad was upheld by the ASA for using a character’s accent in a way which was likely to cause offence. The ad featured a character buying a kitchen, who said "Surplised" before correcting himself and saying "I mean surprised". The ASA considered that, whilst the ad was intended to be an ironic use of humour, this humour was derived from the ethnicity of the character. It was, therefore, likely to cause serious offence and be seen as discriminatory (Brunel Supplies, 07 August 2013).
Similarly, ads which demean people or trivialise important issues are likely to cause offence. 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 an inoffensive 'pun'. The ASA considered that the ad trivialised the Black Lives Matter movement, fetishised and objectified black men, and was therefore likely to cause serious offence (Lingscars.com Ltd, 23 September 2020).
In 2017 a complaint about an ad which featured Floyd Mayweather and stated “always bet on black”, was upheld. The advertiser felt that the ad was humorous and stated that Floyd Mayweather approved the ad, but 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 by the message that the boxing match was a fight between two different races. (Paddy Power, 20 September 2017).