When it comes to politically incorrect ads, lone consumer still has powerful voice

In this post-turn-of-the-millennium decade, it is surprising that political correctness is still a landmine for advertisers. Most of the 'politically' sensitive hurdles have been successfully negotiated in television programming and print editorial. Think, for example, of the flamboyantly gay Jack on 'Will and Grace' or the National Post's use of the 'F-word.' However, advertisers have always been held to a higher standard. I, for one, don't understand this and would welcome an explanation.

In this post-turn-of-the-millennium decade, it is surprising that political correctness is still a landmine for advertisers. Most of the ‘politically’ sensitive hurdles have been successfully negotiated in television programming and print editorial. Think, for example, of the flamboyantly gay Jack on ‘Will and Grace’ or the National Post’s use of the ‘F-word.’ However, advertisers have always been held to a higher standard. I, for one, don’t understand this and would welcome an explanation.

Advertising Standards Canada is a bastion of political correctness. One could even argue that ASC’s raison d’être is to protect the thin-skinned and humourless consumer.

Each year, ASC publishes a summary of the consumer complaints it receives. The 2000 Ad Complaints Report makes instructive reading. There are many interesting statistics buried in the 24-page report.

For example: television advertisements account for more than half the complaints. Food advertising attracts substantially more complaints than alcohol advertising. However, alcohol advertisers are either more aggressive or subject to higher standards or both. A startling 64% of the complaints against alcohol advertisements were upheld compared to 10% of the complaints against food advertisements. Quebec advertisers are more likely than any others to cross the line.

Complaints relating to gender portrayal were down last year, and a disturbing upward trend in complaints involving the depiction of men has been arrested. However, as the report shows, the lone consumer still has a very powerful voice.

Last year, ASC received 1143 complaints relating to 815 advertisements. 152 complaints were upheld and these related to 62 advertisements. This means that, on average, fewer than 3 consumer complaints were required to shut down an advertisement. Considering that most complaints involved television and that TV commercials cost hundreds of thousands of dollars to make and hundreds of thousands to broadcast, these 2.4 consumers per advertisement carried enormous clout.

Now, let’s back up a bit. The Consumer Complaint procedure relates primarily to breaches of the Canadian Code of Advertising Standards. The stated objective of the complaint procedure is to ‘create and maintain community confidence in advertising.’

More than half the consumer complaints received last year related to Clause 14. This is the catchall clause in the Code and is entitled ‘Unacceptable Depictions and Portrayals.’ It deals with advertisements that condone any form of discrimination, that condone or incite violence or ‘reprehensible behavior’ (a term that is charged with political correctness), that ‘demean . . . any person, group or profession, product or service or attempt to bring it or them into public contempt or ridicule . . . or appear to encourage . . . conduct or attitudes that offend the standards of public decency prevailing among a significant segment of the population.’ (Emphasis mine.)

If you grossly over-simplify the situation, 2.4 consumers, on average, are being allowed by ASC to speak for a ‘significant segment of the population.’ Surely this is delicacy taken to an extreme. Canada has a literate and well-educated population. ASC has done a commendable job of advertising its complaint procedure. If an ad were really offensive to a significant number of Canadians, there would be hundreds of complaints received, not one or two including the inevitable rants from the lunatic fringe.

The 2000 Ad Complaints Report summarizes the successful complaints. Most of the ads involved are identifiable. In almost every case relating to ‘gender portrayal’ or ‘unacceptable depictions and portrayals,’ the perceived offence is so mild as to be laughable. In fact, in most cases, the ad is laughable – the complainants just don’t see the humour.

In the very rare cases, where an advertiser shows poor judgment, an ill-conceived ad will attract dozens or hundreds of complaints. This happens once or twice in a very bad year and these ads should be pulled. The others, I submit, are perfectly tolerable in a world that tolerates Howard Stern and TV shows like Chains of Love. In fact, the 2.4 complainants may be depriving other less sensitive consumers of advertising that they enjoy.

ASC also adjudicates consumer complaints dealing with misleading claims and other issues that do not involve taste or political correctness. This is a valid role. The fact that an ad is misleading may not be apparent to consumers who are being misled. Let the 2.4 complainants act as watchdogs in these cases.

But when ASC and its consumer complaint panels make judgments regarding ‘standards of public decency prevailing among a significant segment of the population,’ the record shows they are acting on insufficient evidence. A few squeaky wheels are wreaking a lot of havoc and everyone else is paying the price.

Susan Vogt practises marketing and trademark law at the Toronto offices of Gowling Lafleur Henderson LLP. She can be reached by phone at 416-862-5439 or by e-mail at susan.vogt.@gowlings.com.