Marketing

01 Feb 2008

I own a business near Eden Park and I heard on the news that the Government has passed an Act that will restrict how I advertise during the Rugby World Cup in 2011. What do I need to know? 

The Major Events Management Act 2007 (Act) was passed in August 2007, and was created specifically with the Rugby World Cup 2011, the Cricket World Cup 2015 and other high profile sports tournaments in mind. It can be triggered whenever a suitable event opportunity arises that the Government decides is worthy of special protection.

The Act covers ambush marketing, unauthorised use of Olympic and Commonwealth Games words and emblems, ticket scalping and crowd behaviour. It is designed to apply to global, top tier events, and the Government has indicated that it will not be extended to lesser international events that New Zealand hosts annually (for example, Bledisloe Cup matches).

The key point for those who own businesses around the event venues is that the Act imposes restrictions on "ambush marketing by intrusion". These restrictions will impact the way that you advertise your business in the local area, and are aimed at protecting those who spend large amounts of money to become the official sponsors or suppliers of the event. 

Ambush marketing by intrusion is defined as taking advantage of the assembled crowd to promote your brand in a specific location near the event stadium. The Economic Development Minister can declare clean zones, clean transport routes and a clean period of time during which the restrictions will be imposed. If your business is located within the clean zone around Eden Park during the Rugby World Cup, or along one of the main roads leading away from the stadium, these restrictions will apply to you.

Advertising of any type is banned from clean zones unless you have written authorisation from the organiser of the major event. Private lands and buildings cannot be part of the clean zone, so any advertising inside your business premises will be ok. However, any signs or billboards on your premises that contain advertising within the clean zone may be in breach of the Act. Even if your business is located outside of the clean zone, if your advertising billboard is clearly visible to the naked eye from within the zone, you may be in breach.

In addition, street trading is prohibited in the clean zone. This means that if your premises are within the clean zone, you will not be able to set a stall up on the street outside to sell things to passing crowds. Even the humble sausage sizzle will breach this part of the Act!

However, the good news is that there are some exceptions to these rules. Existing businesses are permitted to carry on their ordinary activities. So if you have always had a billboard advertising your business above your premises, or a sandwich board on the street outside, this will be ok. However if you put up new signage to coincide with the big event, or rent out the use of your signage space to another company two weeks before the event, this will be a breach of the Act. 

The Act also prohibits ambush marketing by association. Ambush marketing is advertising or conduct that suggests an association between the major event and your brand, goods or services. Advertising that links your business with the major event, even indirectly, will be at risk. Regardless of whether your premises are in the clean zone, you will not be able to suggest you have any form of association with the event. For example, you cannot change your staff uniform to include Rugby World Cup t-shirts during the event period unless you have official permission from the organisers to do so.  

The potential penalties are large, so it is important to make sure you comply with the Act. If you breach the ambush marketing provisions, you could face a fine of up to $150,000.

And I've noticed a number of billboards around the city using scantily clad girls to promote their products. Am I allowed to do this too?

Using sex appeal to help sell one's product is not a new idea, nor an unusual one. However the New Zealand Advertising Standards Authority (ASA) imposes restrictions on advertisements using sexual appeal in its Code for People in Advertising (Code). If a complaint is received, and the complaint is upheld by the Advertising Standards Complaints Board (ASCB), you will need to take down your billboard. 

Basic Principle 5 of the Code provides:

Advertisements should not employ sexual appeal in a manner which is exploitative and degrading of any individual or group of people in society to promote the sale of products or services. In particular people should not be portrayed in a manner which uses sexual appeal simply to draw attention to an unrelated product.

Over the last few years, the ASCB has upheld complaints about a number of billboards around the country. There are two areas where you could potentially slip up: if you use sexual appeal in a manner that is exploitative or degrading to help sell your product, or if you use sexual appeal to sell an unrelated product.

To take some examples of billboards that have been deemed exploitative or degrading in the past, images of women hitchhiking in a brief pair of shorts or posing provocatively with surgically enhanced breasts have both been found to be in breach of the Code. A complaint about a liquor billboard was also recently upheld because of the manner in which it used part of the female anatomy to draw attention to the product.

You should ensure that there is a connection between the product and the image being used to sell it. For example, a billboard advertising cell phones had to be taken down because the ASCB held that there was no relationship between the cell phones and the images of the scantily clad young woman used to promote them. Similarly, the ASCB held it was a breach of the Code to advertise apartment properties for sale by using an unrelated image of a naked couple embracing. 

However, if you do wish to use a billboard with sexual appeal to increase your sales, here are a couple of pointers that may help to lower the risk of a successful complaint. First, make sure that the image you use is tasteful and is not exploitative of any groups in society. You should also make sure that you suggest a link between the image that you are using and the product that you are selling. For example, the ASCB declined to uphold a complaint against a television commercial that used images of a couple kissing and removing their clothes before being interrupted by their kids. Why was this advertisement ok? Because it was advertising a hotel chain, and the image was related to the product (private hotel rooms).

Another good idea is to use humour in your advertisement. Basic Principle 6 of the Code expressly recognises that humorous and satirical treatment of people and groups of people is acceptable, so long as it does not offend against community standards and is not likely to cause serious or widespread offence. If you portray the image in a way that is light hearted, hyperbolic and amusing, and not offensive, you should be ok. The more hyperbolic the image is, the more likely it will be that it saves the billboard from being deemed exploitative or degrading, or to be using sex to sell an unrelated product. The recent advertisements for a well known beer brand, using images of women working in a brewery, is a good example of this approach.

Author

Peter Stubbs

Partner - Corporate & Commercial

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