The Advertising Standards Authority (“ASA”) oversees the UK's self-regulatory advertising codes and publishes rulings against marketers who it finds have breached the UK advertising codes. On 11th May 2022 the ASA ruled that several tongue-in-cheek Tesco Mobile advertisements must be removed on the basis of causing serious and widespread offence, further clarifying just how far marketers can go when using or implying explicit language in their advertising materials.
The ASA received a total of 52 complaints relating to the Tesco Mobile adverts, which appeared in various mediums (including print media, social media and out-of-home media) and featured phrases such as “What a load of shiitake”, “They’re taking the pistachio” and “For fettuccine’s sake” accompanied by food imagery, as wordplay on well-known expletives.
The ASA investigated whether the adverts breached the following rules contained in the UK Code of Non-broadcast Advertising, and Direct & Promotional Marketing (“CAP Code”):
- Marketing communications must not contain anything that is likely to cause serious or widespread offence (Rule 4.1); and
- Marketing communications must be prepared with a sense of responsibility to consumers and to society (Rule 1.3).
Despite Tesco Mobile’s assertion that the adverts did not use any offensive words and were therefore unlikely to cause widespread offence, the ASA found that most of the adverts being investigated were in breach of Rule 4.1 (Harm and Offence) and should not be used again in their current form.
The words “Shiitake” and “Pistachio” were considered too closely linked to the relevant expletives both phonetically and orthographically when used in the context of the adverts. “Fettucine” in itself was not found to be too closely linked with the expletive, however was found to be in breach of the CAP Code when the phrase “for F sake” was initially displayed, with the full word “fettucine” later being revealed in a digital advert.
The ASA also found that the adverts placed on digital posters and non-age targeted social media were likely to be seen by children and therefore inappropriate for display, in breach of Rule 1.3 (Social Responsibility). The adverts which were placed in newspapers were not found to breach this Rule, on the basis that children were unlikely to see them in paid for print media intended for adult audiences.
How far is too far?
Using expletives expressly in advertising is likely to breach the CAP Code and should therefore be avoided, as should replacing some letters in an offensive word with symbols or other images to avoid showing the full word. As can be seen in the ASA’s ban of the Brewdog adverts stating “F**k You CO2” and “Sober as a Motherfu”, even obscured swear words are problematic if they are clearly intended to reference expletives and appear in untargeted media. Advertisers wanting to hint at potentially offensive language in their marketing but not use it directly must err on the side of caution.
What is likely to cause “serious or widespread offence” is subjective, and therefore there are no hard and fast rules as to what will be permitted. We have seen that the ASA tends to take a conservative approach when assessing what is offensive and it is very difficult to overturn these decisions through the Independent Review process. What we do know from this Tesco Mobile advert, however, is that the ASA is highly likely to conclude that words that both look and sound like expletives are in breach the CAP Code, even if they are presented in a playful and comedic way.
Conversely, words that hint at or suggest an expletive but do not look and sound like one may be more acceptable. Phrases such as “look at the booking view” and “give a fork about your pork” have been found to be acceptable in the past, and in the Tesco Mobile ruling, “for fettucine’s sake” was acceptable on its own, but was found to breach the CAP Code when featured alongside “for F sake”, as this was deemed to be too indicative of the offensive phrase. This shows the importance of considering the advert as a whole when assessing the risk – context is key.
In this case, even though some adverts were targeted at more adult audiences (for example appearing in newspapers), the ASA has taken the opportunity to remind marketers that a general adult audience has the potential to be offended by offensive language in marketing. However there are certain situations where extra care should be taken. For example, if adverts are placed out-of-home, are likely to appeal to children or young people or relate to religious matters (for example a Christmas promotion), then hinting at offensive language should always be avoided.
- Similarity – does the word or phrase you are using sound and look like an expletive? This is likely to go too far. Remember some expletives are more likely to offend than others.
- Context – remember that the ASA looks at the advert as a whole, therefore the context in which potentially explicit language is used must be considered. If you know that your use of language may be controversial, we recommend arranging focus groups and research sessions to obtain data to confirm that while the advert may be distasteful to some, it does not cause widespread offence. This data can then be provided to the ASA to help stave off a formal investigation or upheld complaint.
- Audience – it is important to know the audience of your adverts, and particular care should be taken when potentially offensive adverts are placed where children may see them (for example on billboards or non-targeted social media). When using offensive language or content which has the potential to cause offence, it is generally not enough to limit distribution to adults, but it may help.
- Choice of media – a banned TV ad is likely to cause much greater financial damage than a banned social media ad. If you intend to use deliberately provocative language to increase the impact of your marketing campaign, plan your media so that the offending advert can be taken down straight away if investigated and brief your PR teams in advance so that they can help manage any potential backlash.
- Ask for a second opinion – marketers producing advertising materials which contain potentially offensive language or content should seek legal advice, or the advice of the CAP Copy Advice Team for clarity. Our team are always on hand to offer advice relating to your advertising materials.