Retailers: beware the ban on gender stereotyping

The Committee of Advertising Practice (CAP) has introduced a new rule, accompanied by Guidance, to combat negative gender stereotyping in ads. The test now (or rather from 14 June 2019 when the new rule comes into force) is whether the ad is "likely to cause harm" – a far lower threshold than the previous test of "widespread or serious offence".

The twist

The key takeaway is that gender issues are now subject to a much lower test as to what is acceptable by the Advertising Standards Authority (ASA). Also, humour won't save you! Anyone involved in the production of an ad which touches on gender stereotyping in any way should revisit the guidance as a matter of course.  Failing to do so could lead to an embarrassing, and expensive, pulling of a media campaign.

Why is this important for retailers?

It’s more important than ever for retailers to be extra careful about how they portray gender. Any breach, or even perception of a breach, could result in significant reputational (and potentially resultant financial) damage to your brand.

The development

There were a number of ads in 2017 that received backlash from the public due to gender stereotyping, such as the GAP ad that dressed a young boy as a “scholar” in contrast to a young girl dressed as a “social butterfly”, and the KFC ad which mocked two men’s emotional anxiety.  Concerns over the portrayal of gender stereotypes led to an ASA review and consultation in 2018.  This has resulted in the recently released new rule and accompanying guidance.

The CAP Code currently only allows the ASA to intervene if an ad causes “serious or widespread offence”.  The new rule (4.9 of the CAP Code and 4.14 of the BCAP Code) significantly changes this, stating that “marketing communications must not include gender stereotypes that are likely to cause harm, or serious or widespread offence”.

The ASA has stated that humour and banter will not be considered as mitigating factors in instances where there is gender stereotyping and added that when contemplating complaints, it will take into account:

• the ad's likely impact as a whole and in context
• the view of the group of people that have been stereotyped
• the use of other stereotypes, such as race, age and disability, in the ad.

Digging deeper

The guidance sets out five scenarios, including descriptive examples, where the ASA may come to the conclusion that harm has been caused.

1.  Scenarios featuring gender-stereotypical roles and characteristics

The guidance states that roles include “occupations or positions usually associated with a specific gender”, whilst characteristics include “attributes or behaviours usually associated with a specific gender”.  It clarifies that it is possible to portray individuals in their gender stereotypical roles.  However, ads should avoid positing that the gender’s role and characteristics depicted:

• are solely associated with one gender
• limit the choice of behaviour or occupation of that gender
• cannot ever be undertaken by the other gender.

Example ads which may fall foul of the new rule include those which:

• starkly contrast male and female stereotypical roles
• highlight any gender not succeeding in a task solely due to their gender, or
• portray that a woman’s application of make-up is more important than other parts of their life.

2.  Scenarios featuring pressure to conform to an idealised gender-stereotypical body shape or physical features

The guidance states that ads are allowed to contain attractive, successful and healthy people.  However, ads should not intimate that a person’s mental wellbeing and happiness is dependent on conforming to the idealised gender-stereotypical body shape or physical features.  Further, ads which depict people as unsuccessful or unattractive should not insinuate that the sole reason is because they have not conformed.  Importantly for weight loss products and services, the guidance clarifies that ‘responsible’ ads will still be permitted. 

3.  Scenarios aimed at or featuring children

The guidance confirms that ads can be clearly directed at children of a specific gender, even when the activity or product is typically associated with that child’s gender.  But they should be careful to avoid portraying what they seek to promote as unambiguously applicable to only one gender.  In addition, ads should not directly contrast a boy’s stereotypical characteristics to a girl’s characteristics.

4.  Scenarios aimed at or featuring potentially vulnerable groups

The guidance advises that ads should show understanding to the mental and physical health of individuals in vulnerable groups who may feel pressure to adapt to certain gender stereotypes. 

Ads targeted at new mums implying the importance of attractiveness and being a good housewife over their emotional health and ads directed at teenagers suggesting that a gender-stereotypical body or characteristic is essential to a successful social or love life are both examples of ads that may be deemed likely to harm potentially vulnerable groups. 

5.  Scenarios featuring people who don’t conform to a gender stereotype

The guidance warns that ads, which jeer those who do not fit to gender stereotypes, even when used with humour, will be unacceptable under the new rule.  One of the examples given is that of a man mocked for undertaking “female” roles. 

Want more like this? This blog was adapted for retail from our snapshot series, bringing you a regular roundup of key legal developments for the modern commercial lawyer.