Iceland: Iceland, Orangutans And Clearcast – A Contrived Controversy Over Advertising Regulation? (Video)

Last Updated: 26 November 2018
Article by John MacKenzie

In November 2018 Iceland announced that Clearcast had "banned" their Christmas ad which highlights the plight of Orangutans in their habitat as a result of deforestation to produce palm oil. According to their press release:

“Retailer Christmas adverts have been the source of much anticipation in the weeks building up to the big day in recent years, with retailers blowing their advertising budgets to ensure their advert becomes the most talked about of the season.”

Richard Walker, MD of Iceland is quoted as saying:

"Whilst our advert sadly never made it to TV screens, we are hopeful that consumers will take to social media to view the film, which raises awareness of an important global issue. Our commitment to help protect the home of orangutans remains extremely close to our hearts. We are proud to be encouraging consumers to make more sustainable choices, even without the support of TV advertising, ahead of the Christmas shopping season."

Ethical decision

Iceland Foods is a British food retailer with over 900 stores throughout the UK, a further 40 owned or franchised stores across Europe, and a global export business. It has committed that it “will stop using palm oil as an ingredient in all its own brand food by the end of 2018. The ethical decision to remove palm oil has been made in order to demonstrate to the food industry that it is possible to reduce the demand for palm oil while seeking solutions that do not destroy the world's rainforest.”

So the advertisement appears to be part of a broader corporate campaign. Clearcast – who apparently “banned” the advertisement, have tried to clarify the position. Chris Mundy, MD of Clearcast said:

“The Iceland ad submitted to Clearcast is a Greenpeace film which has been appearing on the Greenpeace website for a number of months. Greenpeace in its own social media coverage of the story have described the ad as a "Greenpeace film".”

BCAP Code

He then refers to the “Code”. The Code is the UK Code of Broadcast Advertising (BCAP Code) which applies to all advertisements (including teleshopping, content on self-promotional television channels, television text and interactive tv ads) and programme sponsorship credits on radio and television services licensed by Ofcom. The crucial point is that this is the Code that regulates television (and not online or video on demand advertising).

The Communications Act 2003 prohibits political advertising. The term “political” is used in the Code in a wider sense than “party political”. The prohibition includes, for example, campaigning for the purposes of influencing legislation or executive action by local or national (including foreign) governments or promoting the interests of a party or other group of persons organised, in the United Kingdom or elsewhere, for political ends. The definitions of “political” for the purposes of an advertiser’s status and for the content of advertisements are set out in section 321 of the Communications Act 2003.

On the face of it the advert appears to be political as defined in the legislation. But who are Clearcast? Clearcast are best known for clearing advertisements. In other words they review advertisements and advise the advertiser or the broadcaster whether or not the advert complies with the law. Clearcast is not a regulator and does not (as a matter of law) ban ads. But if they advise that the advertisement does not comply with the law, then it will not be broadcast. If the advertisement was shown by the broadcasters then they would be subject to a complaint to the ASA and would be in trouble with their regulator – OFCOM.

Going viral

Why then can the video be easily found online? Title “Rang-tan” it has had more than 5 million views on YouTube alone (as of 19 November 2018), with 30 million aggregated views across social media, “predominantly on Twitter and Facebook”, according to stats from Mother. A Change.org petition to encourage the ad to be shown on television has reached almost 1 million signatures (and there are other similar Petitions).

CAP Code

The answer lies in the distinction between broadcast media (television) and everything else. Pretty much everything else is covered by another Code. This is the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) and is the rule book for non-broadcast advertisements, sales promotions and direct marketing communications (marketing communications).

The CAP Code does not apply to political advertisements as defined in Section 7. That section states:

“7.1 Claims in marketing communications, whenever published or distributed, whose principal function is to influence voters in a local, regional, national or international election or referendum are exempt from the Code.
7.2 Marketing communications by central or local government, as distinct from

t hose concerning party policy, are subject to the Code.”

As long as an advertiser complies with the other rules in the CAP Code, then they will not be in trouble. There is no clearance organisation in the same way as there is for broadcast, but instead anyone concerned about an advert that they see can complain to the ASA.

Iceland is a large and sophisticated organisation, well used to dealing with regulation. So was this a botched attempt to get their advert on air, or a sophisticated and well executed viral campaign? According to reports, Iceland had already paid for TV slots for the advert. But Iceland must have known that an advert that was not selling a product, but instead was seeking to send a message, would be carefully scrutinised.

Advertising regulations

Assuming that Iceland didn’t blunder into this marketing success, what it does show is that a deep knowledge of the advertising regulations means that you can use the regulatory structure to your advantage. By creating a slightly misleading controversy around how the advert has been reviewed and for what, Iceland has probably placed the advert in front of more consumers than would ever have seen it on TV.

And if you haven’t already seen it, here is the advert.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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