Ban on harmful gender stereotypes: What businesses need to knowPrint publication
Commercial Dispute Resolution specialist Claire Acklam explains the Committee of Advertising Practice’s imminent ban on harmful gender stereotyping and offers her practical advice for businesses.
What is changing, and why?
We reported last year that the Committee of Advertising Practice (CAP) planned to introduce new rules banning harmful gender stereotyping in advertising. That followed the Advertising Standards Authority’s (ASA) review which looked at gender stereotyping in advertising and concluded that harmful stereotypes can “restrict the choices, aspirations and opportunities of children, young people and adults”.
On 14 December 2018 new rules were introduced into CAP’s non-broadcast and broadcast codes that marketing communications must not include gender stereotypes that are likely to cause harm or serious or widespread offence. The new rules will take effect on 14 June 2019.
What does this mean for businesses?
All businesses need to think very carefully about the use of gender stereotypes within their marketing and other communications, and this is an increasingly nuanced area.
From a strictly legal perspective, expert advice may be required as to exactly what potential marketing methods will be caught; and as to whether or not proposed content may be harmful.
There are also, however, more practical considerations.
In the run-up to Christmas, Marks and Spencer faced widespread criticism when its ‘Christmas must-haves’ window display posed women in fancy underwear alongside men in smart suits. Whilst (depending upon the exact content of the window display including any offers or other promotional material) the new CAP rules would not have applied, the window display attracted significant negative PR for M&S, with the juxtaposition of female and male aspirations sparking outrage and upset. Businesses of all types should take care to avoid any messaging or misstep which could make them seem old-fashioned, unethical or out-of-touch.
By comparison, recent months have seen announcements by retailers including John Lewis, Boots, Abercrombie and Fitch and Nununu about the removal of ‘boys’ and ‘girls’ signage from toys and even some clothing lines. These announcements have generally been very positively received within the press and on social media, with some even attracting celebrity endorsement.
Following last year’s announcement that a ban on harmful gender stereotyping was pending, image asset library Shutterstock commissioned a survey amongst world-wide marketers as to the use of diverse  imagery in their campaigns . The survey revealed that by October 2018 some 75% of UK marketers had already been impacted by the imminent new rules; that 60% agree that gender is no longer as important a factor when it comes to targeting in marketing campaigns; and that 88% of Generation X and 90% of Millennials believe that more diverse representation helps a brand’s reputation today.
What will be caught by CAP’s new rules?
The CAP codes apply to marketing communications and therefore cover traditional advertisements in newspapers and magazines; on the TV and radio; and via posters, mail shots and the like. They also cover ‘new’ media such as blogs, social media, websites, text message, etc.
It is also important to note that the new rules do not ban gender stereotyping per se. Rather, only harmful gender stereotypes are prohibited. CAP has stated that the aim is to identify specific harm that should be prevented and not to ban gender stereotypes outright; but it has also made clear that the use of humour or banter is unlikely to mitigate against the potential for harm.
CAP has published guidance to help marketers understand and apply the new rules. For example, the new rules do not necessarily ban adverts which feature “glamorous, attractive, successful, aspirational or healthy people or lifestyles” or which feature one gender only; but they would capture any advert which depicted a man or woman failing to achieve a task specifically because of their gender .
The rules do not, however, just deal with potential sexism or contrast between the sexes – they are much wider than that.
For example, the new rules would ban an advert aimed at new mums which suggested that looking attractive or maintaining a new home are priorities; or an advert aimed at young people which directly or indirectly prioritised a particular appearance or body shape over other qualities. Such scenarios may involve gender stereotypes which can negatively impact the emotional and physical wellbeing of vulnerable people.
Businesses now have just under six months in which to familiarise themselves, and train their staff, as to the details of, and guiding principles surrounding, the new CAP rules.
As well as satisfying themselves as to the legalities, businesses should ensure that they consider the wider commercial and reputational issues associated with any proposed marketing communications/campaigns and any policies or publicity relating thereto.
 including diversity in terms of race, gender and abilities
 See https://www.shutterstock.com/blog/visualizing-diversity-in-advertising-around-the-world; and
http://www.netimperative.com/2018/11/asa-gender-stereotyping-ban-marketers-embracing-more-diversity-in-images/ for more information
 although the position may be different if a point of sale display includes a promotion or incentive offer of any kind
 given examples include a man struggling to change a nappy or a woman struggling to park a car