Is your marketing too sexy?

When creating promotional literature for your restaurant, pub, bar or hotel, you should be careful not to mislead the public. The Portman Group, which represents the drinks industry, has established a Code of Practice on the promotion of alcoholic drinks and it is well worth knowing what this covers

The problem

Earlier this year the Portman Group's Independent Complaints Panel received a complaint regarding photographs on WKD's website. A number of the photographs featured young and attractive people, in close physical contact, holding WKD products. It was claimed that the photographs suggested that the product improved both sexual and social success.

The law

While the Portman Code is voluntary, it does have considerable influence as it has the backing of a large proportion of the drinks industry. The decision of the Complaints Panel should therefore be taken very seriously.

The panel concluded that by allowing consumers the opportunity to be associated with the attractive promotional staff in the photographs, the advertiser had suggested there was a connection between the product and sexual success. Furthermore, the effect of the photographs was to imply that close bonding and popularity were linked with the WKD brand, suggesting the product increased social success. As a result, the website was in breach of the code.

As part of the code, encouraging drunkenness is banned. While the photographs could not be proved to show actual drunkenness, there were ambiguous pictures which could have been interpreted as people being drunk.

Finally, the panel took into account the provision that promotional material relating to drinks should not incorporate images of people who are (or look as if they are) under the age of 25. It concluded that many of the consumers on the website looked under the age of 25, constituting a further breach.

Owing to the overwhelming decision of the Complaints Panel, the company behind the WKD website agreed to remove the pictures from the website.

Expert advice

The guidance provided by the Portman Group acknowledges that while it is tolerable to show people mixing and enjoying themselves, there is an inherent danger in close interaction between attractive people suggesting an association with sexual success.

As a result of this ruling, companies should, before displaying photographs on any marketing material, think about avoiding showing close physical contact between people. Avoid any photographs that show suggestive behaviour and consider any sexual connotations created by the clothing worn.

In relation to social success, the guidance note acknowledges the fact that people may "play up" for the camera. The risk is that the brand becomes associated with bonding, popularity and a good time. If you are looking to promote an event, consider avoiding using photographs that show exaggerated good times, consider what the actions of the parties in the photograph say about your brand, and consider whether the consumers would have posed in the same way had they not been drinking. Creating ambiguity - leading people to think that people in a photograph are drunk - or showing a lack of inhibition, should be avoided.

Beware!

Any hospitality business using images of consumers on promotional material needs to ensure that everyone is (or at least looks) over the age of 25. This age rule initially related to the use of models on drinks packaging but has now been extended to images of "real" people as well. The only exception is where photographs show people not apparently consuming alcohol. However, it is difficult to see how this exception will apply at licensed venues.

Failure to take into account the recommendations of the guidance note is likely to lead to a breach of the code. A member who fails to comply faces the risk of being expelled from the membership - which would generate negative publicity in the marketplace. Even if not a member, it is good practice to observe this guidance in view of the negative light in which the media frequently casts activities relating to alcohol.

Contact

Riaz Bowmer, partner and head of commercial at Kimbells Solicitors - on 01908 350252 or riaz.bowmer@kimbells.com