Abstain from that ad

Marketing Brief

By Rae Nield, Auckland | Friday, 09 September 2011
Sometimes we get hit by a media barrage of the screamingly obvious. I have just spotted an article on the NZ Herald website that begins “The All Blacks have a lot in common with ancient Roman gladiators as they go into the Rugby World Cup, say Victoria University academics...”

Now, as a friend of mine says, “Who would’ve thunk!” We gave up the fights to the death long ago but the parallels are pretty clear.

But the good professors of Vic have nothing on those behind the excruciatingly inept Telecom “abstention” campaign — a draft, they say.

I watched, for some time, Fitzy trundling around in his odd-looking pedal car before I realised that the flesh-coloured vehicle was supposed to represent a hand, with a somewhat misplaced black ring on it. And as for what Fitzy said — let’s not even go there. At least I will never have to explain it to the grandchildren.

But my main beef is that this ad failed what in a more sexist era we called “the managing director’s wife test”: if you showed the proposed ad to the MD’s wife, who knew nothing about it, but was a consumer who felt empowered by her position to tell you exactly what she thought, you would get a serious answer that had better be listened to. When I was a general manager, I used to run promotional material by our excellent factory staff who were never short of an opinion, and who saved us from more than a few blunders. You see, the marketing team and their agency staff would fall in love with an idea, and become so focussed on it that they needed to be brought to earth. And the Telecom campaign would have been a clear failure with my critics.

Now this is a column which focuses on marketing law and related issues, so let’s start with some analysis. Would the campaign have been illegal — perhaps misleading or deceptive and therefore a breach of the Fair Trading Act? No. It didn’t actually say anything relating to goods or services to be supplied. It was (apparently) entirely brand promotion, and sheer puffery (but let’s not go there either).

But there are other ways of getting into trouble over ads. One of those is to fall foul of the Advertising Standards Authority Codes of Practice. These are voluntary codes which under the ASA rules would result in the ad being refused space by the media. The ASA Code of Ethics has a principle that says “All advertisements should be prepared with a due sense of social responsibility to consumers and to society.” And at a very early stage we had parents complaining that they would have to explain the double meanings to their kids or lie to them. Not a good look. We also have the code for people in advertising which includes: “Humorous and satirical treatment of people and groups of people is acceptable, provided that, taking into account generally prevailing community standards, the portrayal is not likely to cause serious or widespread offence, hostility, contempt, abuse or ridicule.” And this ad was talking about us, dear readers. Were we being subjected to contempt or ridicule? I think so, but we’ll never know now the ad has been withdrawn.

But fortunately the test of public opinion prevailed, and looked unanimous to me. Remember those tests! They could save you a bundle of money.

Rae Nield is a solicitor specialising in marketing law. This article is intended for general information, and should not be relied on as specific legal advice. You should consult a lawyer for advice relating to your own specific legal problems. Rae Nield can be contacted at raenield@marketinglaw.co.nz.