by Duane Dedman, Commerical Compliance Specialist, Reviewed & Cleared Media Law
Welcome to The Wonderful World of Commercial Compliance © 1955*
In February 2024, Product Placement [PP] on UK television reaches the grand old age of 13 – a teenager. And, like most teenagers, it hasn’t really made its mark yet. But will it ever? Why hasn’t it become a ubiquitous piece of the UK broadcasting landscape as – say - sponsorship has?
Well, I think one of the main reasons – incredibly after 13 years – is that there is still a great deal of confusion over what can (and can’t) occur within a PP arrangement. And – because of this confusion - some programme makers, brands and broadcasters consider it too time consuming and a lot of effort for too little gain.
So, to try and clear some of the confusion up, let’s [briefly] summarise the rules.
The rules of Product Placement – what’s restricted
Some formats (e.g. current affairs, religious and children’s programming) cannot contain PP.
Some channels (such as the BBC’s public-service channels) cannot contain PP. BBC channels owned by BBC Studios (Dave, Gold etc.) can contain PP. However, there may be additional guidelines that producers have to follow alongside the Ofcom rules, for these channels and other commercial channels.
Some products (cigarettes, alcohol, gambling products etc.) cannot feature in PP arrangements. However, the rules are different for on-demand content. For example, alcohol can be product placed for on-demand content, subject to other rules.
The rules - 3 key principles of Product Placement
There must always be sufficient editorial justification for the inclusion of PP. Ask yourself: ‘what’s the reason for a product or service appearing in my show in the first place?’ If there’s a big enough editorial reason, then you should be on safe ground.
References to placed products, services and trademarks must not be unduly prominent.
Ah - undue prominence! Another misunderstood concept. Editorial justification and undue prominence go hand-in-hand. The stronger the editorial justification, the more prominence can be justified. For instance, if a child character in a soap has a toy with them in every scene they appear in, this could compromise the undue prominence rule. BUT if there was a strong enough reason – editorially - why the child holds a toy at all times, then this would be ok. For instance, if the child’s parents were divorcing, the toy would be acting as a comfort or security for the child as a reminder of stability and/or the family home. This reasoning [the justification] would then be conveyed within the storyline.
Promotional references are prohibited to ensure there is clear, blue water between programmes and advertising. Promotional references can include an encouragement to purchase, pricing details and any availability information. For example, wording on packaging saying ‘the world’s number one toy’ or simply a line of dialogue saying ‘what a brilliant toy, everyone got that for Christmas, it was cheaper than I thought too’, would be seen as a promotional reference.
The benefits of Product Placement
For broadcasters and indies, PP provides revenue to the production. For brands, PP brings exposure to the audience. But, what’s not commonly known, is that programme makers can enter into agreements with brands about the manner in which a product is to be used. For example, a contract can be drafted detailing that a certain make of car can be driven by a specific character and how often it is used. Subject – of course! -- to the editorial justification & undue prominence rules.
Also, it’s perfectly acceptable for PP arrangements to be created at the pre-production stage, meaning some clarity and calm can be given to commissioners, commercial colleagues and compliance folk.
So, that’s the good news. Below are some of the obstacles and suggested ways as to how these obstacles could be successfully navigated.
The obstacles of Product Placement
The size and structure of broadcasters
PP works if there is a sizeable audience, to make the investment worthwhile for brands. The smaller your audience, the more difficult it will be to persuade brands to invest in PP. The obstacle could also be that the broadcaster is too large and/or fragmented: if the commissioning team isn’t aligned with the commercial team and, in turn, the compliance team, then it’s going to be an uphill battle trying to exploit PP opportunities. Perhaps the solution for this will be market-driven: in the need for more content and in the climate of budgets being squeezed, broadcasters will have to be more creative in their funding models and embrace PP more readily.
Brands’ objectives and spending cycles
Spending cycles may not be aligned with broadcasters’ filming schedules. But, to better understand a brand’s objectives and spending cycles, relationships with media agencies are crucial. The objectives of brands may simply not be practical given the (perceived) onerous Ofcom rules. Which brings us to…
The onerous Ofcom rules
Successfully lobbying the Government about relaxing the prohibition on products such as alcohol and gambling would be a massive challenge, and I’m not convinced there’s the appetite for that fight at the moment. More realistically, broadcasters could be braver when they have a strong editorial justification to feature products more prominently – the difference between undue prominence and due prominence.
Negotiating agreements
Negotiating any split with broadcasters will depend on when in the process you’re exploring PP and it may - ultimately - boil down to what was agreed within the original commissioning agreement or what each channel’s production pack says about PP. Negotiations could be eased after knowing [forgive me in advance] the ‘art of the possible’. This is especially the case when considering PP for a new format, rather than an established one.
Time and effort
And the last obstacle, of course, is the culmination of the first four: that PP is ‘too much hard work’. This will only evaporate when more people – across industry – understand the limitations and the obvious benefits for all involved.
Questions?
If have any questions about PP, then drop me a line: duane@reviewedandcleared.com
*this relates to the year commercial TV arrived in the UK, not my age.