An 'over-zealous' ASA can expect gender stereotyping bans to be questioned

A baby left on a conveyor belt whilst two dads are distracted by... cream cheese. A woman waits by a pram, whilst men are depicted as astronauts and athletes... to sell electric cars.

Steve Kuncewicz: 'We're likely to see more cautionary tales'
Steve Kuncewicz: 'We're likely to see more cautionary tales'

The effectiveness of these campaign messages aside, they are the first adverts to fall foul of Advertising Standards Authority (ASA) rules on gender stereotyping, stating ads cannot contain stereotypes which are likely to cause harm or widespread offence.

Both ads were cleared for broadcast by Clearcast, which would have taken gender stereotyping issues into consideration. From one regulator's point of view, these adverts were fine, with Clearcast stating the ASA has been "over-zealous". So why has the ASA taken such a hard-line stance against these adverts in particular?

Such a prescriptive approach is likely to leave the ASA’s decision now facing independent review.

These aren’t the most overt examples of gendered adverts we see day-to-day – so why were they singled out?

Volkswagen received only three complaints. Mondelez (owner of Philadelphia), whose ad was pulled for reinforcing ideas that men are "ineffective" caregivers, believes it is in a "no-win situation"; it originally decided to feature two dads to avoid showing a stereotypical image of a mother handling childcare tasks – as depicted in Volkswagen’s ad.

The response to these initial rulings suggests there’s some way to go before agencies feel they have a handle on the new requirements.

The tension between creatives being legally compliant and getting a message across creatively is something those in PR, marketing and advertising must deal with every day. Whilst the ASA exists to protect consumers from harmful or misleading messaging, it should also take a supportive role in ensuring agencies keep within regulation, therefore improving the depictions of gender as broadcast to the public. With the ASA doling out blanket bans on what constitutes possible harm to the public on the basis of gender stereotypes, we risk losing the nuance in an important public debate.

As it stands, the process for an ad being banned under a gender stereotype rule breach is the same as for any other misstep. Should an agency wish to appeal a decision, it will need to explain the intention behind the content in question, and justify how it doesn’t reinforce negative stereotypes – in a fairly quick manner. Without further clarity, it will be difficult for agencies to prove that their ads do not risk negative impact or harm.

We’re likely to see more cautionary tales as the ASA’s approach comes into sharper focus and helps the industry get to grips with it, and it’s likely to leave future similar decisions vulnerable to independent review.

Whilst the agency is trying to do the right thing socially, what the right thing is practically is yet to be defined.

Steve Kuncewicz is partner and advertising specialist at commercial law firm BLM

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