14 January 2019

2018 was a year of campaigning for change in relation to gender equality and the portrayal of gender stereotypes in advertising has been an area of focus for the Committee of Advertising Practice (CAP) and the Advertising Standards Agency (ASA) this year.

Major brands have been criticised for their portrayal of genders in advertising as recently as late 2018, but until now, the ASA has only had the power to step in if adverts cause 'serious harm or widespread offence'. This has meant that the ASA normally does not intervene when it receives complaints about an advert on the grounds that it reflects negative gender stereotyping. So CAP’s announcement in mid-December (following on from ASA’s 2017 review into gender stereotypes in adverts) that it will ban 'harmful' gender stereotyping in advertising from June 2019 will change the landscape in this area.

Current ASA powers

The ASA’s current powers in relation to sexual orientation and gender identity are set out in rule 4.1 of the CAP Code. The ASA can only intervene if an advert contains content that is likely to cause 'serious or widespread offence', the rule states that particular care should be taken to avoid causing offence on the grounds of gender or sexual orientation (amongst other things). This is quite a high threshold to meet and has meant that in the past the ASA has not intervened in adverts that have otherwise caused adverse commentary. For example:

  • In 2013, the ASA did not uphold two adverts portraying mums organising Christmas for their families, on the basis that it reflected the reality for most households and did not cause serious harm or offence
  • In a 2017 KFC advert, one man mocked another man for his anxiety and attracted complaints from people who felt that the advert equated having anxiety as not being masculine. The ASA considered that the advert did not cause serious harm or offence
  • A 2017 a Gap advert attracted complaints as it featured a boy dressed up as an academic and a girl dressed up as a 'social butterfly'. Gap withdrew the advert so the ASA did not deliver a ruling on this advert, but there is little evidence to suggest that they would have been able to uphold the complaints under the current rules.

ASA’s 2017 review

In its review the ASA noted that it normally decides that adverts which depict gender stereotypes or that mock people for non-conformance with those stereotypes do not cause serious harm or offence. Whereas, it reported that its decisions relating to body image, sexualisation and objectification were 'broadly in the right place'. Therefore, the ASA decided it needed to take a harder line on gender stereotyping in adverts given that 'Gender stereotypes have the potential to cause harm by inviting assumptions about adults and children that might negatively restrict how they see themselves and how others see them. These assumptions can lead to unequal gender outcomes in public and private aspects of people‘s lives; outcomes, which are increasingly acknowledged to be detrimental to individuals, the economy and society in general'.

Ban on ‘harmful’ gender stereotypes in advertising

In mid-December CAP announced that as of 14 June 2019, the following new rule will come into force: '[Advertisements] must not include gender stereotypes that are likely to cause harm, or serious or widespread offence'. CAP has issued guidance to assist companies to comply with this rule.

The guidance states that it is not trying to prevent advertising which:

  1. features attractive, glamorous and successful people;
  2. only features one gender, where the product is aimed at that gender; or
  3. features gender stereotypes with the intention of challenging their negative effects.

Guidance for compliance

The guidance released by CAP provides assistance by setting out the types of adverts which may not be acceptable. It broadly breaks down into the following rules:

  1. Take care not to imply that gender stereotypes are the only options available to a particular gender or that they are unique to a particular gender. For example, the following could be an issue: adverts depicting a man lying on a sofa whilst a woman does all the cleaning; adverts implying that a man or woman might succeed or fail at a task because of their gender; adverts suggesting that a woman should prioritise her image over her work-life.
  2. Avoid implying a person will become happy or successful in their career or love life simply as a result of complying with a gender-stereotypical body shape or physical feature.
  3. If aiming an advert at children or including children in an advert, take care to ensure the advert does not imply that the product, pursuit or activity is inappropriate for a particular gender.
  4. Ensure to be sensitive to the needs of vulnerable groups of people and not place pressure on them to conform to stereotypes, for example, avoid placing pressure on new mums to keep their homes pristine.
  5. Avoid mocking people that do not conform to stereotypes, for example, mocking or belittling a man for emotional vulnerability or mocking men for carrying out stereotypically ‘female’ tasks.

What happens if an advert fails to comply with the rules?

If an advert does not comply with the relevant codes then the ASA can request that the advertiser withdraw or change the advert, which will result in wasted costs of publishing an advert, or additional costs of altering the advert. There is also commonly negative publicity associated with adverts that breach the rules, with news outlets frequently reporting higher profile cases and adverse social media campaigns now common place.

How can Burges Salmon help?

For further information, please contact Helen Scott-Lawler or Tim Deacon.

This article is one in a series which address the key issues and important considerations for businesses when advertising which we are releasing following the ASA’s release of a five year strategy which set out a new focus on reinforcing regulations around online advertising. This is the first article in the series; the next will cover considerations for organisations entering into social influencer agreements.

Key contact

Helen Scott-Lawler

Helen Scott-Lawler Partner

  • Head of Food and Drink
  • Commercial
  • Intellectual Property and Media

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