Product placement opportunities in the UK

Product placement – and the law and regulations governing it – is becoming increasingly important as the way in which we watch television changes. The ability to record programmes and then fast forward through the adverts or, alternatively, to watch television via an app on a laptop or an “on-demand” service, pose a challenge for traditional television advertising. More and more advertisers are considering the potential of product placement.

Branded (or brand identifiable) product placement on UK television has been permissible since 2011. Viewers had previous exposure to product placement via imported, particularly US material, but until 2011 there was a prohibition on its use in UK-made programmes and films. However, the new regime is a strict one. In contrast to normal televised advertisements that are self-regulated by the Advertising Standards Agency, product placement is regulated by Ofcom, which enjoys statutory powers of enforcement. The regulatory framework is the Ofcom Broadcasting Code (the Code).

The Code provides that product placement cannot take “undue prominence” or take precedence over the editorial needs of the programme, distorting the natural progression of the television show in favour of the advertising vehicle. Broadcasters must maintain editorial independence and control over programme content and scheduling – the tail (product placement) should not be allowed to wag the dog (programme content).

The Code also proscribes a number of products and programme genres that cannot be used for product placement. These include tobacco products (including e-cigarettes), alcoholic drinks, gambling, medicinal products and food or drink that is high in fat, sugar or salt. Programme genres that may not be used for product placement include children’s programmes, news programmes, UK-produced current affairs productions, religious affairs programmes and consumer affairs productions.

Programmes featuring product placement must alert viewers to the fact that product placement is occurring by including a universal neutral logo (a ‘P’ symbol) at the start and end of the programme and when it resumes after a commercial break.

Product placement is still in its infancy in the UK but if, as often happens, the UK follows the US lead, it will soon be big business. In the US, product placement accounts for around 5 per cent of all advertising sales. However, agreements for product placement will need to prepared and reviewed carefully, with, in particular, attention paid to the degree of control afforded to the advertiser over when and how the product appears and the degree of prominence enjoyed by the product. Additional issues will arise for the advertisers where the placement is to appear in a series of programmes over an extended time period, where issues such as adverse publicity, fluctuating viewing figures and change to scheduling, will need to be addressed.

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