Rule 32.2.1 of The UK Code of Broadcast Advertising (The BCAP Code) states that alcohol ads should not be shown in or around programmes commissioned for, principally targeted at or likely to appeal particularly to audiences below the age of 18.
In practice, programmes commissioned for or principally targeted at under-18s are identifiable by their content. Programmes likely to appeal particularly to under-18s are not so easy to identify.
Broadcast Committee of Advertising Practice (BCAP) guidance recommends the use of audience indexing, a statistical tool, to determine the representation of children in relation to the audience as a whole. BCAP guidance states that an alcohol restriction should be applied in programmes where the 10- to 15-year-old audience, indexed against the total audience of all individuals over four years old, produces an index of 120 or more. An index of 120 would mean that 10- to 15-year-olds are 20% over-represented in the programme audience compared to the audience as a whole.
Audience indexing can be used as a tool for forecasting prospective audiences using historical data. An index over 120, when looked at retrospectively, is not necessarily indicative of a breach of the Code. The test is whether the broadcaster used the predictive tools available to schedule advertising with reasonable thoroughness and care.
The ASA Compliance team received research data from Ofcom about television programmes that contained centre-break alcohol advertisements in Q4 2012. This research was based on Broadcasters' Audience Research Board (BARB) data for this period and showed ads where the 10- to 15-year-old audience, indexed against the audience of individuals over four years old, produced an index of 120 or higher.
Ofcom commissioned this research as part of a review into children's exposure to alcohol advertising on television. Ofcom passed this information to the ASA to assess whether the data indicated breaches of Rule 32.2.1 of the BCAP Code. The ASA commissioned further data for February, March and April 2013.
Episodes of You've Been Framed were broadcast on ITV2 and ITV2+1 in the 6 pm to 8.59 pm time slot throughout Q4 2012 and February, March, April 2013. The data indicated that the audience index for alcohol ads in these programmes exceeded the 120 limit in:
1. Nine episodes in Q4 2012 and eight episodes in February, March, April 2013 on ITV2.
2. Seven episodes in Q4 2012 and 14 episodes in February, March, April 2013 on ITV2+1.
The ASA Compliance team challenged whether it was appropriate to schedule alcohol ads in You've Been Framed in the 6 pm to 8.59 pm time slot because the data indicated it was a programme likely to appeal particularly to audiences below the age of 18.
ITV Broadcasting Ltd (ITV2) said that they took their responsibility to ensure that children were not overly exposed to alcohol advertising extremely seriously and went further than they were required to under the current regulatory regime to deliver this. They provided audience data for each episode of You've Been Framed broadcast on ITV2 (aggregated with ITV2+1) between 6 pm and 9 pm for the period October 2012 to April 2013.
ITV2 said that You've Been Framed was a very long running programme on ITV channels. Because of the large number of programmes and the regularity with which they appeared, the lack of clear definition about what constituted a series made it challenging to assess whether, taken as a whole, the programming was of particular appeal to under-18s. With this in mind, ITV2 took a variety of past data points from 2012 to apply the 120 index. They said this was a more reliable approach than taking a weekly or monthly snapshot because the performance of the programme fluctuated over time and evidence from individual weeks or months could be highly contradictory.
ITV2 also said that there was little clarity in the rules and guidelines about the period across which indexing data should be applied in the context of long-running programmes such as You've Been Framed. They said that broadcasters had no guidance on how to approach the issue of when to restrict ads in a programme and how many programmes could index over 120 before a restriction should be applied.
ITV2 said that in the 6 pm to 8.59 pm time slot on ITV2, aggregated across the main channel and associated variants (+1 and HD), You've Been Framed indexed 117 in the period October 2012 to April 2013 and substantially fewer than 50% of episodes indexed above 120. They provided data showing that 43% of episodes exceeded the 120 index in this period. They said this showed that the programme was not likely to appeal particularly to under-18s.
ITV2 also said that aggregating data across the main channel and variants (+1 and HD) was appropriate because +1 and HD channels had no existence independent of the main channel and to treat them separately would have the most profoundly negative and unintended consequences for the regulatory regime, for UK commercial broadcasting and ultimately for viewers, to minimal regulatory benefit.
ITV2 said that although they recognised that in Q4 2012, the average index was over 120, it was under 120 in Q1 2013. They said that given the nature of the programme, it was reasonable to look at data across the longer October 2012 to April 2013 period and this showed that the average index in this time slot was under 120. ITV2 said that given the series average test, the programme was not of particular appeal to under-18s.
The programme was, however, considered "at risk" of exceeding 120 so ITV2 monitored actual audience data. They monitored data on a weekly basis and discussed the programme in monthly review meetings. They said the audience data fluctuated widely but when measured over a period of time it indexed under 120. They said they considered that the higher index in Q4 2012 was attributable to the run up to Christmas rather than a change in the fundamental underlying appeal of the programme.
In March 2013, ITV2 decided to partially restrict alcohol ads in You've Been Framed to post 8 pm on weekends, bank holidays and over the Easter period. They made this decision because they decided it was appropriate and in the spirit of the Code to go beyond a strict application of a series average approach for a set of programmes that appeared so frequently on ITV2. They said they considered their scheduling judgements reasonable and proportionate and compliant with the Code.
The ASA considered that You've Been Framed, a programme described on the ITV website as "hilarious home videos featuring, and sent in by, members of the public" could appeal to under-18s. We therefore considered that forecasting using audience indexing was the appropriate means for ITV2 to determine whether the series was likely to appeal particularly to audiences below the age of 18. We also considered that broadcasters were ultimately responsible for complying with the Code and if they needed guidance about the interpretation of Code rules they should have contacted BCAP.
The ASA accepted that aggregating indexing data between +1 and HD versions of the same channel could be a reasonable practice when formulating data for forecasting purposes, particularly when audiences on the +1 or HD channel were very low. Broadcasters should bear in mind, however, that audiences may differ by channel and time-slot and whether the programme was broadcast on weekdays, weekends or in school holiday periods. In programmes where audience figures are relatively high on +1 or HD channels it may be better practice to evaluate the likely appeal of the programme on the particular channel because there may be instances where audiences differ between a main and a +1 channel. From the data provided, we considered that it was reasonable to aggregate data between ITV2 and ITV2+1 in this instance.
We noted that although ITV2 monitored the programme on a weekly basis and discussed it in monthly review meetings, they adopted a "series average test" using an aggregate over a longer period. We considered that although the use of long-term periods to determine the series index for a particular time-slot could be a useful tool in the forecasting process, it could result in unreasonable delays when responding to audience changes unless the data was acted upon on a more regular basis. For example, from the data provided by ITV2, the average index for October 2012 was 145, the average for November 2012 was 153 and the average for December 2012 was 159.
We therefore considered that ITV2 should have taken immediate action when they discovered that recent data showed that the index exceeded 120 (for example in Q4 2012) because this indicated a change in the audience profile for the series.
We also considered that ITV2 should have taken into account the number of programmes that exceeded 120 as well as the average index. If recent data showed that a number of programmes indexed over 120, ITV2 should have restricted the programme even if the recent series average index was less than 120 because a number of high indexing programmes was indicative that the series was of particular appeal to under 18s.
Taking the data as a whole, we considered that a situation where 43% of programmes indexed over 120 with an average index of 117 as one where an alcohol restriction should have been applied, even though the average index was less than 120.
In practice, both the series average and the number of high indexing programmes should have been taken into account in the scheduling process. In October 2012, 68% of programmes indexed over 120; in November 2012, 68% of programmes indexed over 120 and in December 2012, 80% indexed over 120. We considered that ITV2 should have taken immediate action when recent data showed that a number of programmes indexed over 120, especially when the series average was over or close to 120.
In January 2013 the average index was 101, but the percentage of programmes indexing over 120 was 32%. In February 2013, the average index was 106 and the percentage of programmes indexing over 120 was 29%. Although the average index was under 120, we considered a situation where 32% and 29% of programmes indexed over 120 showed that the series was likely to appeal particularly to under 18s on a regular basis. We therefore considered that immediate action should have been taken to restrict the programme when recent data indicated it was likely to appeal particularly to under 18s on a regular basis.
Although we acknowledged that action was taken in March 2013 and alcohol ads had been restricted in programmes before 8 pm on weekends and bank holidays, we considered that this was not sufficient to ensure compliance with the Code. In April 2013, when the restriction was in force, the series average for the programme was 121 and 48% of programmes exceeded 120, which we considered was indicative that the programme was likely to appeal particularly to under 18s in the slots where the restriction was not applied.
We concluded that the failure to act immediately upon changes in audience indices in the series as a whole, particularly when the average index exceeded 120 or a high number of programmes exceeded 120, resulted in the scheduling of alcohol ads in breach of the BCAP Code.
The scheduling of alcohol advertisements in episodes of You've Been Framed broadcast between 6pm to 8.59pm on ITV2 and ITV2+1 breached BCAP Code rule 32.2.1 32.2.1 alcoholic drinks containing 1.2% alcohol or more by volume (see rule 32.4.7) (Scheduling of Television and Radio Advertisements, Under-18s).
We told ITV2 to ensure they review series data on a regular basis and act upon changes in the index.