Consultation response Draft Glasgow Commonwealth Games (Trading and Advertising) (Scotland) Regulations 2013 - Wednesday 7th August 2013 ...
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Consultation response
Draft Glasgow Commonwealth Games (Trading and
Advertising) (Scotland) Regulations 2013
Wednesday 7th August 2013
Advertising Association
7th Floor North, Artillery House
11 – 19 Artillery Row
London, SW1P 1RT
www.adassoc.org.uk
11. About us
1.1 Advertising is a vital enabler in the economy, underpinning at least £100 billion of UK GDP.
The Advertising Association (AA) is the single voice for those businesses and industries which
contribute to that effect – the agencies that create and buy campaigns, the commercial media
that carry them and the vast array of brands that use advertising to communicate with
customers and drive their businesses. The AA’s remit is to protect and promote the role, rights
and responsibilities of advertising. It works to keep advertising high on the business agenda,
develop support and understanding in government and ensure that responsible practice earns
the continued confidence of the public, regulators and policy-makers alike.
1.2 The AA supports and promotes responsible advertising self-regulation and sits on the code-
owning bodies, the Committee of Advertising Practice (CAP) and the Broadcast Committee of
Advertising Practice (BCAP).
1.3 A list of AA members can be found here: http://www.adassoc.org.uk/Members
2. Executive Summary
2.1 The AA welcomes the opportunity to comment on the draft Glasgow Commonwealth Games
(Trading and Advertising) (Scotland) Regulations 2013 ahead of the Games themselves in July
and August 2014.
2.2 The AA supports the core objectives of the proposals outlined by the Scottish Government in
the consultation document: ensuring Games events have a consistent “celebratory” look and
feel; preventing deliberate ambush marketing; and helping people easily access Games
venues. The AA is entirely committed to the protection of commercial freedoms for all
businesses, and this, together with the need to protect sponsors’ interests, should be taken
into account at all times. We note and applaud the Scottish Government’s understanding of
the importance of enacting laws that are “reasonable and proportionate”.
2.3 The AA has responded below to the specific questions which concern its membership and fit
within its remit.
3. Overview of advertising in the UK
3.1 Advertising in the UK is subject to a strict regime of self- and co-regulation, independently
administered by the Advertising Standards Authority (ASA). The Advertising Codes, which are
written by CAP and BCAP, apply across all media and affect both the content and placement of
advertisements. The ASA was recently described by Government as “an exemplar of successful
self-regulation”1.
3.2 We define ambush marketing as any attempt by a non-sponsor to deliberately associate itself
with the games or participants without express permission. It potentially lessens the
commercial value that official sponsors, who purchase ‘official’ status at considerable
expense, can extract from this status and may disincentivise other brands from seeking official
1
Department for Culture, Media and Sport, ‘Connectivity, Content and Consumers: Britain’s digital platform for Growth’,
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/225783/Connectivity_Content_and_Con
sumers_2013.pdf
2sponsor status in the future. It includes, but is not limited to, distributing unofficial
merchandise or deliberately advertising on the perimeter of events.
3.3 It must be noted, however, that ambush marketing and referring to or association with an
event as a non-sponsor are not necessarily synonymous. Establishing whether ambush
marketing has taken place can require a subtle approach and nuanced understanding.
Burdensome legislation designed to prevent ambush marketing but which has broader
consequences can have a negative impact on sponsors’ brands and on the Games.
4. Response to specific questions
4.1 Question 8: Do you agree that further regulation, as outlined at paragraph 3.5, should allow
the inclusion of George Square and the Merchant City as Games related locations for the
purposes of controlling advertising and street trading in these areas.
4.1.1 We do not feel further regulation is necessary. Paragraph 3.5 describes the powers given to
Ministers by the 2008 Act to specify “additional sites, which are not sporting venues and
are not in the immediate vicinity of a sporting event, for inclusion in regulation.” However,
the most effective and efficient way of protecting official sponsors, while maintaining the
reasonable commercial freedoms of non-sponsors, is through voluntary agreements. This is
best exemplified by the recent collaborative efforts of outdoor media owners and the
Organising Committee (OC)2. The AA welcomes agreements such as these which are less
cumbersome than regulation, and will go a long way to achieving the goals of the OC as set
out in the consultation document.
4.1.2 Further to this cooperation between the owners of outdoor media inventory and the OC,
we request that any decisions made around the timing of enforcement periods takes into
account the outdoor advertising industry’s ‘in-charge dates’, or the period in which any one
particular campaign appears on outdoor media, so as to minimise the inconvenience
caused to industry while still ensuring full protection for sponsors.
4.2 Question 9: Do you agree that the scope and definition of advertising as set out at paragraphs
4.7 to 4.8 is appropriate? If no, please provide additional or alternative suggestions.
4.2.1 The Scottish Government has adopted a broad definition of advertising, as set out in
paragraph 4.7 which we accept. However, the AA is concerned that including those who
are “indirectly responsible for advertising activity” under the scope of regulation is
disproportionate. In our view, those organisations which commission a deliberate ambush
marketing campaign should bear full responsibility.
4.3 Question 10: Do you perceive any difficulties in providing the exceptions set out at paragraphs
4.11 to 4.15? If yes, please provide details.
4.3.1 We welcome and support the positive exceptions made in paragraphs 4.11 to 4.14, as well
as the general exclusion of those who are only unknowingly involved in advertising activity
(paragraph 4.10).
4.3.2 Paragraph 4.15 refers to a number of miscellaneous exceptions which include, but are
seemingly not limited to, “the distribution or provision of newspapers or periodicals,
2
Details available at http://www.glasgow2014.com/press-releases/glasgow-2014-brings-key-outdoor-advertisers-
together-unique-gamestime-collaboration
3advertising as part of a condition of an authorisation to trade at Games time, and the
displaying of branding relating to the manufacturer or operator of an item of street
furniture.” The AA welcomes the exceptions as specified, but would like clarification on
exactly what else is included in this list of miscellaneous exceptions. It is important that
sponsors are protected from ambush marketing but that legitimate marketing by non-
sponsors is allowed to continue where appropriate in order for all businesses to exploit the
commercial opportunities presented by the games as much as possible.
4.4 Question 11: Do you agree with the broad conditions proposed to apply to the authorisation
process as set at paragraph 4.23. If no, please state why not.
4.4.1 We agree with all of the broad conditions outlined in paragraph 4.23, and support the
Scottish Government’s efforts to ensure that all advertising is safe and legal. In particular,
we welcome the acknowledgement of the effective codes of practice that guide advertising
in the UK. The self-regulatory system in force in this country as described in paragraph 3.1
of this response is world leading and the CAP and BCAP codes administered by the ASA are
the most effective and efficient way of ensuring all advertising is legal, decent, honest and
truthful. We would request that the authorisation criteria to be published in the Advance
Public Notice are unambiguous, particularly since the OC retains absolute discretion as to
whether or not to grant an authorisation, and that the appeals process is efficient and
reliable in order that those organisations requesting authorisation are not unduly
disadvantaged.
4.5 Question 12: Do you perceive any difficulties with the proposals as they apply to advertising?
4.5.1 The OC’s central aims, specifically to protect sponsors from deliberate ambush marketing,
are reasonable. However, to amplify our comments above, we would suggest that the
regulations with regard to advertising must strike a balanced approach between the rights
of official sponsors to protect their investments on the one hand and of other businesses
to legitimately benefit from the Games on the other.
4.6 Question 13: Do you agree that the criteria to be set out in the Regulations outlined at
paragraph 5.2 should be; “Officers who are authorised to carry out enforcement functions
under the Trade Marks Act or the Civic Government (Scotland) Act and/or officers who have
been authorised by a local weights & measures authority to carry out enforcement functions
under legislation which that authority has a duty to enforce?" If no please provide an
alternative.
4.6.1 It is important to retain the stipulation in the consultation document that enforcement
officers “are familiar in dealing with street trading and advertising offences”. Effective and
proportionate enforcement of advertising rules requires a nuanced understanding of both
the rules and advertising itself, and we would support the OC in its designation of
individuals with these capabilities.
4.6.2 The paper details some of the criteria the OC will consider when designating enforcement
officers. However, it is crucial to consider not just the suitability of the officers themselves,
but also the spirit of enforcement itself. The fundamental challenge of this is protecting
sponsors and preventing deliberate ambush marketing, while avoiding over-zealous or
inflexible enforcement which would be likely to have a negative effect on the reputation of
the sponsors, the advertising industry and the Commonwealth Games themselves.
4Particularly with regards to ambush marketing, a flexible and proportionate enforcement
regime reduces the risk of encouraging these activities with increased media coverage.
4.7 Question 14: Do you agree that the Regulations will reduce the risk of rogue trading and
advertising? If no please state why not.
4.7.1 The AA agrees that the Regulations will help reduce the risk of rogue advertising, but that
to achieve this as effectively and efficiently as possible it is important to employ a range of
means and not to rely too heavily on regulation. With this in mind, we applaud voluntary
measures such as that described in paragraph 4.1.1 of this response. Initiatives such as
these should be employed where possible to combat deliberate ambush marketing in place
of onerous legislation which may have broader consequences than those intended.
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