In a Statement on product placement policy released on 9 February 2010, Ben Bradshaw, the Secretary for Culture, Media and Sport, confirmed the UK Government's intention to introduce regulations allowing limited product placement in programmes made in the United Kingdom. The new regulations will blacklist certain products including foods high in fat, salt or sugar (HFSS) and alcohol.

BACKGROUND

In the two years since the adoption of the Audiovisual Media Services Directive (2007/65/EC), limited product placement has been legalised in all European countries except Denmark. The Directive prohibits product placement generally, but allows Member States to derogate from the prohibition in the case of cinematographic works, films and series made for television or on-demand services, sports programmes, and light entertainment programmes.

The Department for Culture, Media and Sport (DCMS), which was previously against liberalising TV product placement in the United Kingdom, "reconsidered the position" and, keen to ensure that the United Kingdom remains an attractive forum for programme-makers, set out in a consultation paper proposals for a tightly controlled product placement regime for the United Kingdom.

THE NEW REGIME

The new regime will not come into force with the proposed regulations, but will allow time for Ofcom, the independent regulator and competition authority for the UK communications industries, to run a public consultation. Once Ofcom has completed its consultation, it will introduce detailed changes to the Broadcasting Code permitting product placement in certain circumstances. The DCMS anticipates that the changes to the Code will be effected by the end of this year.

The DCMS consultation raised concerns about the possibility of product placement in current affairs, consumer and religious programming. Conscious that some programmes in these categories could fall within the "series" genre, the Government has decided to exclude these programmes from the scope of the new regulations. The regulations will not apply to programmes funded by the BBC's licence fee. These will continue to be governed by the BBC's Charter, which prohibits product placement.

The new regulations will not affect programmes imported from outside the European Union, which will continue to permit product placement within the terms of the Directive, provided that they meet Ofcom's requirements, particularly in avoiding undue prominence being given to the placed product.

PROHIBITED PRODUCTS

The Directive prohibits product placement in relation to tobacco products and prescription medicines. The Government has decided to extend the prohibitions in the UK to alcohol, HFSS, gambling, smoking accessories, over-the-counter medicines and infant formula, including follow-on formula.

The prohibitions have been chosen with a view to potential effects on health and welfare and particularly the health and welfare of children.

OTHER SAFEGUARDS

The legislation will also ensure that product placement shall not affect editorial independence, be unduly prominent or directly encourage purchase and it will be for Ofcom to police programming to ensure that these objectives are met.

COMMENT

Whilst the ban on product placement has been enshrined in British programming since its inception, the public's sensitivity to product placement has been eroded gradually by the inclusion of branded products in films and programmes imported from overseas, particularly from the United States. The relaxation of the UK regime is likely to be embraced by programme-makers in the current austere economic climate, where any additional revenue-stream is welcome.