Love it or hate it

Controversial or misleading advertising is nothing new but should brands be careful when pushing the boundaries of regulation or taste?

’Love it. Hate it. Just don’t forget it’ hardly sounds like a line from what could be one of the most controversial advertisements of all time, but Marmite’s ‘animal rescue’ ad has been complained about to the Advertising Standards Authority (ASA) 504 times this month by people who think it is in poor taste as it likens rescuing a jar of the savoury spread to an animal being saved from neglect. 

While brand owner Unilever reacted quickly by offering to fund a day of RSPCA animal rescue it still not escaped the wrath of a nation of animal-lovers. Arguably, the ad encapsulates Marmite’s love/hate strategy very well, but how far should brands push the boundaries of taste or the rules relating to fairness, and risk a backlash from people or a command from the Advertising Standards Authority to remove or change an ad?

Beer brand BrewDog is no stranger to controversy, having described itself as a ”post-punk apocalyptic motherfu*ker” and its competitiors as ”corporate beer whores crazy for power and world domination”. It was not afraid to bite back at the ASA last month after it was told to remove the “gratuitous” language on its website as it was likely to cause “serious offence”, not least because it had been up there for more than a year and only person had complained to the ASA.

The objection of small lobby groups shouldn’t mean that the right to purchase a legal product is restricted

Although the message has been removed Sarah Warman, marketing and events manager at BrewDog, claims this had nothing to do with the ruling and was actually the result of a site redesign.

“We thought it laughable that the complaint was upheld, especially as we’re all about free speech,” she says. “We should be allowed to say whatever we want on our website, about our brand, which is for over-18s. If you don’t like it, don’t visit.”

She believes the ruling “proves how outdated the ASA is”. “The amount of paperwork, emails and man-hours the ASA had to put into investigating this complaint for the sake of one person is probably a waste of time.” Warman says the brand would likely put the offending text back up, as “that is the language of the brand and that’s how we portray ourselves”.

If BrewDog was to republish the comment, or put up something similar, a spokesman for the ASA says it will consider the available sanctions, but take a view on whether there was value in implementing them.

While BrewDog’s strategy is to stick its neck out and court controversy – a year after its launch it attracted tabloid headlines such as ’Our beer’s so strong it’s binge drink cure: fury at brewer’s bizarre claim’ – others get inadvertently tangled up in spats when trying to level the playing field or clear their name.

There have been a number of high-profile feuds in the past few months alone, with Sainsbury’s questioning the fairness of Tesco’s Price Promise, Rihanna successfully suing Topshop for using her image on t-shirts without consent and The Co-operative trying to censor the display of lads’ magazine Nuts, despite it acting on the right side of the law.


IPC Inspire, the publisher of Nuts, fought back when the supermarket attempted to “restrict access” to the publication by concealing its content in a modesty bag – and as a result it is likely it will be delisted from stores in September. IPC Inspire managing director Paul Williams says: “The objection that niche lobby groups have against certain sectors of the media should not mean that the right to purchase a perfectly legal product is restricted. This is no longer a question of whether or not you like men’s magazines – it is a question of how far you can restrict the public’s ability to consume free and legal media before it becomes censorship.”

Meanwhile, Rihanna won her High Court case against Topshop, which she accused of selling t-shirts with her picture on without obtaining a licence. While the judge said this did not mean celebrities had an automatic right to control reproductions of their image, in this instance it was felt consumers may have been misled into thinking it had been endorsed by the singer as she has worked with high street stores including River Island and H&M; Topshop has collaborated with other celebrities in the past; and the picture was similar to that on her album cover.

Some of the more long-lasting battles come as a result of “misleading” claims between rival brands. Not happy with the ASA’s ruling over the validity of Tesco’s Price Promise, Sainsbury’s has launched an independent review as it says Tesco does not compare like-for-like products or take provenance and ethics into account. Backed by the National Farmers’ Union and the Woodland Trust, Sainsbury’s commercial director Mike Coupe argues that where food comes from and how it is produced matter, and that “Tesco should not be allowed to argue that they don’t”.

In its adjudication the ASA said it was satisfied that Tesco had taken into account the fact there might be differences in animal welfare and country of origin for the ingredients, and had “compared on the basis of them meeting the same need”.

Unlike Sainsbury’s Brand Match initiative, the Tesco Price Promise also takes non-branded products and fresh produce into account, which Tesco UK marketing director David Wood says is based on “common-sense comparisons [that] customers would see as fair and meaningful”. 

He adds that while the origin of a product is important in some instances, “where it isn’t a key factor for customers, we don’t let it stand in the way of making a common-sense comparison”.

But considering the recent horsemeat scandal, there is heightened concern about food provenance among UK consumers and Sainsbury’s fiercely objects to this reasoning.

Its ‘same price, different values’ riposte highlights the difference between a number of seemingly like-for-like products. For example, Sainsbury’s compares its Basics ham produced in the UK to Tesco’s Everyday Value ham which is produced in the EU, and concludes: “They cost exactly the same. But it’s what you can’t see that makes the difference.”

An adverse ruling might not have a detrimental affect on a brand; in the case of edgier brands it could enhance it

Continuing disruption of this nature could have an impact on trust in price comparisons generally, which is why consumer watchdog Which? is campaigning to make unit prices simpler, clearer and more consistent, so consumers find it easier to spot the best deal.

The problem is highlighted in one example, where one box of teabags is shown to cost 3.7p each and the other is described as being £1.63 per 100g, making it difficult for consumers to know which is better value.

So far, Morrisons, Aldi, Waitrose and The Co-operative have pledged their support for the campaign; Sainsbury’s, Tesco and Lidl are taking steps towards simpler pricing; and Asda has said it will look at its labelling.

An issue of unfair pricing caused BT to fall foul of the ASA after its ads offered broadband customers ‘free’ viewing of Premier League matches on its new BT Sport channel.

BSkyB, Talk Talk and several members of the public lodged complaints as they felt the media company was not clear about how customers could get BT Sport for free.

An ASA spokesman says: “BT Broadband customers can watch BT Sport for free online or via an app, whereas to watch BT Sport on TV customers need to have BT Broadband and a Sky satellite dish or an internet-connected TV. Customers can also view BT Sport via BT TV with BT Infinity. We worked with BT to ensure they clarified how customers who wanted to watch it on TV could do so.” The case has been resolved informally.

David James, BT’s consumer marketing director, says: “As a new sports brand we look to reflect the passion of sports fans to drive credibility as a provider of premium sport. Big-name sports stars immediately decode to quality and help us drive credibility and excitement, but they have to be used authentically to get the full impact.”

Sky, which launched its own high-profile marketing campaign featuring David Beckham in July, is focused on “positively demonstrating the Sky difference” in content, innovation and value, according to Liz Darran, director, brand and creative at BSkyB.

The ads created by Brothers and Sisters highlight Sky’s range of viewing options and show the recently retired footballer watching Sky Sports on TV, mobile and tablet devices in various locations, illustrating how Sky fits around his busy life.

Darran adds: “We focus on transparency across all our campaigns so that customers know exactly what they are getting. In our experience, that’s the best way to ensure our customers are satisfied and remain loyal.”

In a further blow to BT, Sky won an Ofcom ruling allowing it to refuse BT Sport ads from being broadcast on its sports channels. However, BT Sport is set to bypass the ban through its sponsorship of the Glasgow and Edinburgh rugby teams, meaning its logo will be aired during all Heineken Cup and RaboDirect fixtures that are shown exclusively on Sky Sports. Sky was also rapped by the ASA last week for not being clear about the price of broadband in its TV ad featuring Bruce Willis.

Where there is competition, there will always be rivalry in the way brands promote themselves, which sometimes, inevitably, will be called into question.

Some brands choose to tread deliberately close to the line, but responsible advertisers need to comply with the laws and regulations in place while continuing to stand up for what they believe in.

Paddy Power is one brand that hovers over the boundary of taste, but its head of sportsbook marketing Mark Singleton says that while some advertisers believe regulatory bodies like the ASA are not doing enough to protect brands and their freedom of expression, he recognises that it has to take a stance that is in line with public perception, as there are occasions when brands overstep the mark.

“The ASA is there for the rights of the public and it’s an important body that strikes the right balance between what punters are hearing about and what brands want to communicate,” Singleton adds.

Despite offending thousands of consumers over the years and one of its ads being the third most complained about of all time (see ’ban for your buck’), the Irish bookmaker insists it does not try to court controversy. “We don’t ever set out to get ourselves in trouble,” insists Singleton. “It’s not about being controversial, it’s about being entertaining and funny.”

BrewDog has had its knuckles rapped by the ASA over the language used on its website, but the brand remains defiant

A number of its “cheeky and irreverent” ads have been the subject of scrutiny and it has been scolded by the ASA on several occasions. But taking risks with creative is a strategy the betting firm intends to stick with.

“There’s no way we’re going to step back from it because it’s been incredibly successful,” Singleton adds. ”Our fans love that side of our personality. It’s not about being offensive or reckless, it’s about tapping into what people are talking about.”

Social media plays a major role in helping the bookmaker ascertain whether it is hitting the right note with its target audience, but with that comes increased risk, says Singleton.

“The market is moving towards ’moment marketing’ which means you’ve got to act fast,” he says. “When [Chelsea footballer] Eden Hazard kicked a ball boy last year the number of people searching for the story on google died down within 48 hours, so that’s the window you’ve got to work in. But having to react that quickly means it’s always going to be harder in terms of regulation.”

Although Paddy Power works with the ASA to amend or remove ads when they don’t comply, Singleton says brands must stand up for their rights if they are acting within the law.

It fought back last year when the London Organising Committee of the Olympic Games (Locog) accused it of breaching legislation and demanded that an ad be removed from billboards. 

The ad claimed Paddy Power was the “official sponsor of the largest athletics event in London this year”, but went on to clarify that it meant a town called London in France. It was set to take its case to the High Hourt before Locog did a U-turn.

“We don’t always set out to push the law to the limit and we never set out to cause issues with Locog or go through the courts. We know people like that kind of marketing and we were on the right side of the law, so we were always going to fight our corner,” says Singleton.

The ASA also says it prefers to work with advertisers like BrewDog to advise on how to get their ads right, but the brand argues that it does not need the ASA to tell it what to do. 

“In terms of marketing, we make decisions and we stick by them,” says BrewDog’s Warman. “We’d never make a decision we were unhappy to stick by in the long term and that’s something all marketers should do. Obviously, we’d look at the ASA’s argument and consider what they’re saying, but we would never do something we can’t defend.”

Under its new sanctions for online advertisers, the ASA has the ability to have an advertiser’s paid search results removed and to place its own paid search ads highlighting the problem with the advertiser in question.

“Ultimately, if the issue relates to misleading advertising we can refer the advertiser to our legal backstop – the Office of Fair Trading (soon to be Trading Standards) – and they can consider statutory sanctions including fines,” an ASA spokesman says. ”That’s not our preferred course of action and it’s actually very rare that we have to refer,” 

While removal of a controversial ad that may have an expensive media spend behind it is frustrating, ultimately pushing the boundaries of taste and the rules of clarity might get your brand to the top of the awareness charts. But marketers must tread the tightrope carefully.

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