In a determination last month, the Ad Standards Community Panel (Panel) made it clear that advertising material that shows conduct contravening the Australian State and Territory COVID-19 health and safety orders will likely breach the community standards on health and safety set out in the Australian Association of National Advertisers Code of Ethics (Code).
The advertisement in question was broadcast on television in July 2020 for the promotion of Lotterywest’s Oz Lotto $25 million jackpot. The advertisement showed a man in a public bathroom neglecting to wash his hands and then hugging a stranger, accompanied by a voiceover stating: “There’s Frank. Little does he know he’s about to be hugged by a stranger in the toilet. There he is, enter stranger. He’s won Oz Lotto. Forget the elbow taps, he’s gone all in. Oz Lotto. Tuesday.”
The complainants took the view that the advertisement mocked the Government’s social distancing recommendations.
Prevailing community standards on health and safety
In assessing the advertisement and complaints, the Panel considered the Code, which forms part of the self-regulatory framework adopted by the advertising industry to encourage honesty, accuracy, fairness and social responsibility in advertising.
Specifically, the Panel considered section 2.6 of the Code which provides that “Advertising or Marketing Communication shall not depict material contrary to Prevailing Community Standards on health and safety”. There is no single test for prevailing community standards – defined as those standards “determined by the Ad Standards Community Panel as those prevailing at the relevant time” – they evolve constantly and differ depending on the subject matter.
The Panel’s decision
The Panel upheld the consumer complaints, finding that the man not washing his hands after exiting a toilet cubical, then hugging a stranger, in combination with a voiceover indicating that existing heath recommendations should be ignored, was a portrayal in contravention of the prevailing community standards on health and safety in breach of Section 2.6 of the Code.
Learning from the Panel’s decision
The decision provides the following useful guidance for advertisers.
1. Ensure that advertising material does not show conduct which is in contravention of COVID-19 health and safety orders
In its decision, the Panel confirmed that it considers the State and Territory COVID-19 health and safety orders to be in line with the prevailing community standards on health and safety during the COVID-19 pandemic. Accordingly, it is important that advertising material is cleared to ensure compliance with all relevant health and safety orders in place at the time that the advertisement is to be broadcast.
2. Consider the health and safety orders of each State and Territory where the advertisement is to be broadcast
The Lotterywest advertisement was broadcast in Western Australia and, accordingly, the Panel was required to consider whether the conduct shown in the advertisement was in contravention of Western Australia’s health and safety orders.
However, if advertising across multiple states and territories, it will be necessary to ensure that the advertising material is compliant with the health and safety orders of each State and Territory in which the advertisement is to be broadcast.
3. Whether advertising material produced pre-pandemic can continue to be used must be assessed on a case-by-case basis
The advertisement was first broadcast before the COVID-19 outbreak in Australia, in November 2019. The original version of the advertisement contained the same visuals of the men in the bathroom, but did not include the voiceover referring to “the elbow taps”. The newer version of the advertisement, broadcast in July 2020 and which was the version considered by the Panel, included the voiceover.
Given that the complaints were in response to the newer version of the advertisement, the Panel was not required to consider whether the original version was in breach of the Code.
However, the Panel commented that it is reasonable for advertisers to continue to use old advertising material to promote their businesses “especially in a time when the production of new advertisements is difficult”. The Panel also stated that it considered advertisements that are not clearly set during the pandemic, which show people interacting in a manner which indicates that they know each other, and which do not contain a call-to-action which is against current health recommendations would be unlikely to be seen by members of the community to be against prevailing community standards on health and safety.
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.