By Despina Lyons, Senior Associate & Trade Mark Attorney

Background

A recent decision from AdStandards provides a timely reminder of what is and is not acceptable when advertising motor vehicles in Australia. In a campaign titled “GIVE IT HEAPS”, Mazda Australia (“Mazda”) was promoting the Mazda BT-50 Ute. The creative team certainly took that literally and went too far in terms of showcasing the capability of the vehicle versus safety and instead of “giving it heaps”, Mazda should have given it “a bit less” to make sure that all of the requirements of the AANA Code of Ethics (“AANA Code”) and FCAI Voluntary Code of Practice for Motor Vehicle Advertising Code (“FCAI Code”) were complied with.

In the 30 second TVC, which you can view here, a group of people are seen talking about the hero, Robbo. Robbo is described as a brickie, a mountain climber, President of the fishing club, an ironman, a life saver, that he can shed his skin and read minds.

Alongside each description is some related footage of the Mazda BT-50 Ute. For example, when Robbo is described as a brickie, footage of the Mazda BT-50 Ute with wood pallets loaded in the tray reversing on a worksite is shown; when Robbo is described as a mountain climber, footage of the Mazda BT-50 Ute driving up a mountain is shown; and when Robbo is described as the President of the fishing club, footage of the Mazda BT-50 Ute is shown driving along a beach and in the water.

This TVC received a complaint, and we will discuss the complaint in the section below. As a reminder, the advertising industry in Australia is self-regulated and AdStandards is the independent body set up to receive, review and decide complaints made in respect of advertisements through the appointed Community Panel (“Panel”). Members of the public can make complaints about an advertisement on any medium and a single complaint is enough for AdStandards to investigate. Once a complaint is received, AdStandards will review the complaint to determine if the subject of the complaint is covered by one of the relevant advertising codes which AdStandards administers. AdStandards will then notify the advertiser of the complaint, and the advertiser is given the opportunity to respond to the complaint. The Panel will then meet to consider the complaint and make a decision. If the Panel decides that there has been no breach of a relevant code, then the complaint will be dismissed. However, if the Panel determines that there has been a breach, the complaint will be upheld, and the advertiser will be asked to change or remove the advertisement. The advertiser is given five days to comply. If they do not comply within this time period, AdStandards may take other action, including contacting the media owner to have the advertisement removed.

The Complaint and Mazda’s Response

In the complaint about the Mazda BT-50 Ute advertisement, an individual complained that “the advertisement encourages destructive and dangerous driving behaviour. The ad shows people discussing Robbo… he drives dangerously fast on rough roads and along a beach at speed and in the water. No regard for shorebirds, other beach users, safety etc. It promotes extremely dangerous and careless driving behaviour”.

Clause 2(a) of the FCAI Code prohibits advertisements for motor vehicles from portraying unsafe driving. As noted above and as is standard practice, the advertiser had the opportunity to respond to the complaint. In their response, Mazda explained that the depiction of Robbo driving the Mazda BT-50 Ute in the different circumstances is intended to showcase the capabilities and durability of the car and importantly, the advertisement is not intended to encourage the audience to do the same in circumstances where it may be dangerous or illegal to do so. In their response, Mazda also listed a number of reasons as to why the advertisement should not be considered as showing unsafe driving including references to disclaimers which direct users to review the owner’s manual before towing and engaging in off-road driving, that the commercial was filmed under controlled conditions, to check weights are within towing capacity and to comply with local regulations.

Clause 2(e) of the FCAI Code prohibits advertisements depicting deliberate and significant environmental damage. In response to this requirement, Mazda submitted that the advertisement does not show significant damage to the environment, it could not be construed that the actor or anyone involved with advertisement intended or attempted to cause environmental damage and permits and location agreements which were obtained required Mazda not to cause damage to the relevant locations.

While not admitting any contraventions of the FCAI Code, Mazda did refer the Panel to clause 3 of the FCAI Code which provides that advertisers may make use of scenes of vehicle testing or proving in advertisements. Mazda submitted that this is exactly what they were doing in the TVC.  However, this is a very restrictive provision, and Mazda simply did not do enough in the execution to ensure the advertisement in question would be covered by the provision.

Clause 2.6 of the AANA Code provides that advertisements shall not depict material contrary to prevailing community standards on health and safety. If an advertisement contravenes the FCAI Code clauses prohibition against showing unsafe driving, it follows that the TVC will also contravene clause 2.6 of the AANA Code on the basis that unsafe driving is contrary to prevailing community standards.

Decision

The Panel referred to an overarching FCAI Code Guidance Note which provides that advertisers should avoid explicitly or implicitly drawing attention to the acceleration or speed capabilities of a vehicle given that excessive speed is a major cause of death and injury in road crashes. The Guidance Note further provides that the use of disclaimers cannot be used to justify the inclusion of material which otherwise does not comply with the FCAI Code.

While some of the scenes were deemed acceptable, the Panel analysed the TVC and in the scene where the Mazda BT-50 Ute is seen reversing on the worksite, the Panel held that this scene does depict reckless and unsafe driving. The Panel noted that a worksite would typically be classified as a road or road-related area and not an off-road setting. The Mazda BT-50 Ute is seen reversing at speed, around a corner where the driver would have limited visibility. The Panel considered that if this driving behaviour would occur on a worksite, it would pose a safety risk to anyone nearby. Accordingly, this scene was held to be in contravention of clause 2(a) of the FCAI Code.  Indeed, if the conduct occurred on a road or road-related area, it would be incredibly dangerous – this is sufficient for the FCAI Code to be breached, and Mazda was thus in trouble.

Regarding the rest of the TVC, the Panel referred to clause 4 of the FCAI Code which provides that advertisements may legitimately depict the capabilities and performance of an off-road vehicle on non-road or road related areas, and some flexibility is provided here. But only provided that all other provisions of the FCAI Code are adhered to. In this respect, the Panel considered the rest of the TVC and was comfortable that the scenes where the Mazda BT-50 Ute was shown driving on the beach and other off-road areas appeared to be at appropriate speeds, the driver appeared to be in control of the vehicle and the TVC was appropriately showing off the capability of the Mazda BT-50 Ute. These scenes were held not to contravene clause 4(a) regarding unsafe driving.

In regards to the claim of environmental damage under clause 4(e), the Panel considered that there was no indication that the areas shown in the TVC were ones where a vehicle could not drive and the Mazda BT-50 Ute is shown being driven in a responsible manner which would be unlikely to cause environmental damage. The TVC did not breach this section of the FCAI Code. The TVC did breach clause 4(a) as noted above. In response to the Panel’s decision, Mazda amended the TVC to remove the reversing shot of the Mazda BT-50 Ute.

Take Aways

This decision provides a number of timely reminders. Firstly, when advertising motor vehicles, safety needs to be given paramount consideration. While there are provisions for and flexibility regarding legitimately depicting a vehicle’s capabilities, and there is always some room for creative licence in motor vehicle advertising, this cannot be taken too far and the driving behaviour and scenarios which are used to showcase the capabilities of the vehicle need to be consistent with the Codes, and must meet the basic requirement of depicting safe driving. The decision and the Guidance Note also highlight that while disclaimers have their place, they are not a panacea when the advertisement does fall foul of the FCAI Code and provisions.

While there is always the opportunity available to respond and argue why an advertisement meets the standards, it is much better to be proactive and seek clearance advice before launching advertisements. Ultimately, avoiding issues pre-production will save OEMs significant sums in wasted production budgets if advertising falls foul of Codes and cannot be saved. Having specialists like us review campaigns before broadcast avoids the potential negative PR around a campaign, the downtime involved when awaiting a decision, the need to re-cut and amend advertisements, and the costs involved, all of which significantly impacts the economic success of campaigns.

Contact us

If you would like further information on advertising standards and how it impacts on you or your business, please contact one of our experts below. We can provide tailored legal and practical advice to assist you with clearing advertising material. We can also assist to tailor a response should you receive a complaint from AdStandards.