Freeths partner Simon Barker comments on recent risqué adverts and explains the ASA’s boundaries for proper clearance
The controversy around Balenciaga’s latest advertising scandal highlights a serious question for fashion and luxury brands. They would do well to stop and ask, “What are you doing?”
If brand owners want to avoid a Balenciaga blunder, then observing the four tenets of the Advertising Standards Authority’s (ASA) Codes of Practice is a great start: Make sure advertising is legal, decent, honest and truthful. Take great care in depicting children (some may say never work with children or animals) and avoid sexualised imagery that might be deemed indecent.
Brands need to employ objectivity from creative inception through to execution. Kim Kardashian and Kanye West (although ditched himself by the brand) were not quick to call this advert out, and why would they as current (and past) supporters of the brand?
Advertising’s raison d’être is to turn an eye, grab attention, even shock, and above all, to sell more product. Certainly, Balenciaga’s brand may be viewed as subversive. So, perhaps it’s easy for brands to find themselves in these sticky situations. However, can one ever justify featuring children with teddy bears wearing BDSM outfits? Really!
Freedom of artistic expression and the promotion of authentic brand values are all laudable aims, but they do not apply here. Balenciaga simply got it wrong. A PR disaster? Perhaps not, as they appear to have acknowledged their mistake. For sure, an entourage of celebrities have fallen into line behind them. That tells you these matters are firmly the brand’s responsibility.
Brands need to take particular care in featuring children, sexually objectifying women, and sexualising advertising; particularly where that is not focussed on product.
How do brands save themselves from being caught out? There has been a spate of repeat cases recently – so, are fashion brands failing to learn their lessons?
What the regulator says
In February 2022, the ASA called out Boohoo’s advertising which it found objectified and sexualised women in a harmful and offensive way. The regulator stated that Boohoo had breached the rules; noting that the advertisements were focussed on images of the women rather than the products.
This is not the first time Boohoo has come under scrutiny. In October 2019, the brand was in trouble for email marketing with the headline, “Send Nudes”, with an ‘eyes’ emoji! The advertising was held to breach the rules because it was socially irresponsible and likely to cause moral harm to children. Despite the emails only being sent to self-declared over-18s, ASA found online age was often misreported.
Does sex sell in 2022?
It is often said that sex sells, but online safety is a hot topic. Age-verification is important for brand owners to carefully consider if they want to indulge in risqué advertising.
Last summer, Pretty Little Thing exposed themselves in an advertising campaign featuring Alabama Barker, a 16-year-old brand ambassador. She was featured in provocative poses with the suggestive headline, “Y2K is Calling … channel that team dream realness with barely-there micro mini-skirts”.
ASA considered the poses to be sexual, depicting an under 18 in a sexual way, which was in breach of the rules. Again, it was not the first time Pretty Little Thing had been in deep water. In February 2020, they suffered criticism over a campaign featuring women in black vinyl knickers, cut-out orange bras and dragging neon bars in seductive poses. It’s difficult to paint in words! Once again, the regulator condemned the brand and considered the adverts were over sexualised, and objectified women. The regulator said the campaign was socially irresponsible, harmful, and offensive.
Advertising regulation and the potential PR consequences move with the times. Is sexual objectification of men the same as of women, and how does that sit with acknowledging non-binary people? It’s a case of ensuring the adverts are legal, for sure, and that they follow the rules, but it’s also a matter of objective judgment and subjective impression.
Some brands will want to be edgy and to push boundaries. There are grey areas, and a good lawyer with a proper clearance process to appreciate the risks can be worth their weight in gold.
Balenciaga may have got it wrong, but it is not always that simple.
Freeths partner Simon Barker is head of the firm’s intellectual property & media practice. He can be reached at firstname.lastname@example.org.