Think BR: What does the new experiential marketing code mean for marketers?
How will the new experiential marketing code be enforced and what happens if marketers don't comply, asks Jo Farmer, partner, Lewis Silkin LLP
Jo Farmer, partner, Lewis Silkin LLP
Some types of experiential marketing are already covered by the Advertising Standards Authority (ASA) and the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code), such as the content of leaflets, posters, coupons, promotional prize draws and competitions.
However, given the nature of experiential as a new and still evolving discipline, there has been growing concern that some types of experiential marketing are currently not covered by the CAP Code or any other existing self-regulatory code in the UK.
For example, sampling, face to face marketing and live performances normally fall outside of the CAP Code’s current remit.
The Institute of Promotional Marketing (IPM), with input from a number of trade bodies and other interested parties, has therefore drawn up the 1st edition of the Experiential Marketing Code of Conduct to try to address these gaps, and it launched on 5 March 2012.
What does it cover?
The main focus of the new code is to cover brand ambassadors carrying out sampling, face to face marketing and live performances to promote a brand.
It doesn’t, however, cover brand ambassadors in the sense of celebrities or talent who are recruited to be the face of a brand in advertising and other promotional messages.
The code includes a number of new guidelines, for example:
- Experiential marketers must respect the public. For example, marketers must not force a product or sample on a consumer (which could well have an impact on the more forceful sampling techniques used at some London train stations).
- When conducting food sampling, marketers must display allergy and ingredient information prominently.
- No food or drink samples should be given to children under the age of 12 without their parent’s consent.
- Marketers must carry out a risk assessment before starting the experiential campaign.
- Marketers must dispose of all litter.
- Experiential marketing for alcohol brands must be done in a responsible way (for example, the campaign can’t imply social success, link alcohol with sexual activity or seduction or encourage anti-social behaviour). There are also guidelines when employing brand ambassadors to give out samples of alcohol where the brand ambassador is over 18, but under the age of 21.
- Experiential marketing aimed at children must not take advantage of children’s vulnerability or credulity, such as by encouraging pester power or encouraging dangerous activity.
- Marketers must have adequate public liability insurance for their campaign.
How is it going to be enforced?
The new code certainly reads well - it’s all good common sense stuff, which is difficult to fault and which, if followed and adopted by the industry, should help in raising the bar on standards of experiential marketing.
So how is it going to be enforced and what happens if marketers don’t comply?
Well, for now at least, the code is being adopted by trade bodies and will be enforced through trade associations.
Ultimately, failure to follow codes adopted by trade bodies could lead to expulsion as a member.
The IPM has already adopted it and will expect its members to comply.
Other trade bodies like the Direct Marketing Association (DMA), Advertising Association and the Portman Group (for alcohol) contributed and helped write the code, so they will presumably also adopt it.
But for now, it is not going to be enforced through a complaints procedure and self-regulatory body as the ASA and CAP Code are.
However, one method of ensuring compliance with the code remains, and this will probably be one of the biggest sticks to guarantee compliance for experiential agencies.
Most agencies will have signed up to contracts with their clients, and most of those contracts will have a clause which states that the agency must comply with all relevant UK laws, regulations and codes of practice.
Coca-Cola has already publicly gone on record to say that it not only supports the new code, but will be expecting all of its agencies to comply with it (which is hardly surprising given that the drinks brand was part of the working group that helped draft the new code).
So, even if there isn’t a self-regulatory body policing compliance at this stage, advertisers may well threaten to terminate contracts with agencies or even sue for damages if agencies don’t comply.
Jo Farmer is a partner in the Media, Brands and Technology department at law firm Lewis Silkin LLP.
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