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Too fast, too furious – the ASA puts the brakes on irresponsible adverts

Posted: 22/02/2019

After the Advertising Standards Authority (ASA) banned four car advertisements in October 2018, we examine the factual background to each investigation, the regulatory framework governing advertising in the automotive industry and the practical implications arising from the ASA’s rulings.

Factual background

Following the ASA’s rulings on 24 October 2018, Ford, Nissan and Fiat Chrysler have each had advertisements banned for breaches of the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) or the UK Code of Broadcast Advertising (BCAP Code) (together referred to as the Codes).

Two identical adverts for Ford, aired on its YouTube channel and in the cinema, featured various individuals dealing with ‘the everyday frustrations of work life’. The advert contained a voice-over that stated ‘Do not go gentle into that goodnight. Old age should burn and rave at close of day. Rage. Rage against the dying of the light […]’. The ASA held that the adverts suggested that ‘a Ford Mustang could be the antidote to a dull life’ and that Ford ‘must not encourage unsafe driving, including by depicting driving as a way of relieving anger’.

Fiat Chrysler’s advert on YouTube promoted four cars ‘driving at high speeds in urban settings […] predominantly on a series of elevated, tilting and intertwining roads’. The advert contained a disclaimer stating that drivers should obey speed limits and road traffic laws. Citing the sound effects of the car (ie ‘screeching tyres’) and the high tempo music, the ASA held that ‘the overall impression of the ad was of speed’ and the disclaimer was ‘not sufficient to mitigate the overall impression of the ad or warn against emulating those driving behaviours’.

Nissan’s TV advert promoted the Nissan Micra’s intelligent technology safety features. It showed a pedestrian stepping out in front of the car, causing it to activate an intelligent breaking system. The ASA upheld a complaint that the advert encouraged dangerous driving by exaggerating the benefit of the vehicle’s safety features and condoned irresponsible driving by showing the car being driven at excessive speeds. The ASA noted that the gradually ‘louder and faster’ electronic music and car revs created the impression that ‘the driver was able to navigate at speed in a rushed or distracted manner’ and ‘could rely on the Micra’s braking system intervening to help prevent a collision’.

Regulatory framework

The ASA is the UK’s independent advertising regulator. It is responsible for monitoring and enforcing compliance with the Codes. In conjunction with the ASA, the Committee of Advertising Practice writes the Codes for broadcast (ie television and radio) and non-broadcast media. Over January to June 2018, the ASA amended or withdrew 7,232 adverts, which was a significant increase from 7,099 amendments or withdrawals in the whole of 2017.

Both of the Codes contain specific rules for motoring advertisements. Rule 20 of the BCAP Code lists various ‘social responsibility rules’ for compliance with its key principle that adverts should not ‘contribute to a culture of dangerous, irresponsible or inconsiderate driving or motorcycling, especially among young drivers’. Similarly, the key principle set out in Rule 19 of the CAP Code is that automotive marketing communications ‘should not condone or encourage unsafe or inconsiderate driving practices’.

The ASA may impose a range of sanctions on those in breach of the Codes. As was the case with Ford, Nissan and Fiat Chrysler, the ASA may amend or withdraw adverts. Where the CAP Code applies, the ASA may withdraw certain trading privileges (ie any bulk mail discounts with Royal Mail) or require pre-vetting of future advertisements prior to publication. In addition to adverse publicity, broadcasters in breach of the BCAP Code risk a referral to Ofcom, which can in turn impose fines or withdraw licences to broadcast material.

Practical implications

In evaluating whether an advert falls within the Codes, it is essential to consider each component part of the advert both individually and in the wider context of the whole advert. This includes the use of sound effects, camera movements and the tempo of any music. As evidenced by Fiat Chrysler’s advert, a disclaimer will not necessarily be sufficient to mitigate the overall impression of an advert in light of each component part.

There is no minimum number of complaints necessary for the ASA to investigate an advert. Indeed, there were only 14 complaints in total across all four adverts for Ford, Nissan and Fiat Chrysler. Given the low threshold for an ASA investigation and the potential commercial ramifications of an ASA ruling, it is important for automotive manufacturers and advertisers to carefully consider their obligations under the Codes.

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Penningtons Manches Cooper LLP

Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority under number 419867.

Penningtons Manches Cooper LLP