By Bianca Lopez, Solicitor

Honey Birdette has once found itself again being leered at by Ad Standards. The notoriously risqué lingerie brand is this time in hot water over imagery the brand featured on posters for their recent “Fashion Fetish” campaign. This isn’t entirely new of course. Even though images of scantily clad women are considered far more acceptable when used in advertising for lingerie brands as compared to other industries, sometimes lingerie brands can go too far and need to be pulled up. However, what makes this case interesting is that it is one of the rare examples where a brand has decided to ignore the determination of Ad Standards and refuse to pull their advertising.

What is all the fuss about?

The brand displayed a number of posters featuring a scantily clad model wearing nipple pasties and a harness and holding leather and chain accessories. While this sort of imagery is very on-brand for Honey Birdette, the issues came about following the brand’s decision to display these posters in the store fronts of Honey Birdette stores, most of which are within shopping centres. Again, lingerie brands are allowed to show (mostly) women wearing their products, provided the material is not overtly sexualized or degrading, etc, pursuant to the AANA Code of Ethics sections 2.2 and 2.4.

Importantly, point of sale material, in-store posters, and similar do fall within the definition of “Advertising” under the Code, and thus determinations by the Ad Standards Community Panel under the Code will apply to these posters.

Following a number of consumer complaints, the Ad Standards Community Panel completed a review of the posters and concluded that the imagery that was featured was in breach of the Code, handing down their determination on 9 November 2022. For the full Ad Standards determination, please see here. Particularly, Ad Standards determined that Honey Birdette’s in-store posters were in breach of both section 2.2 (for featuring exploitative or degrading behaviour), and section 2.4 for displaying sexual appeal and nudity without sensitivity to the relevant audience.

As is standard process, Ad Standards notified Honey Birdette and advised that the posters should be removed from the store fronts. This is consistent with the standard outcome where an advertisement is found in breach of the AANA Code – the advertiser is updated, and the material needs to be adjusted or removed from broadcast, publication or display. Honey Birdette provided an initial response to the original complaint, stating that the images did not breach the standards as they were portraying their products in a positive light, however, Honey Birdette did not provide any further response following the Ad Standards determination nor made any effort to remove the posters from the store fronts in the shopping centres.

This is not the first time that Honey Birdette caught the eye of Ad Standards. In the past twelve months, there have been a number of similar complaints made to Ad Standards about various Honey Birdette advertising campaigns, most of which involved overtly sexual imagery featured in store fronts. In response to each Ad Standards review or Community Panel determination, Honey Birdette has held firm that the advertisements were not inappropriate and did not provide any further comment or take any action to have the advertisements removed. So… what happens then? We discuss this further below.

Not in front of the kids!

It is important to note that it is not entirely the content of the advertising that was the cause for Ad Standards concern. Instead, the concern here related partly to the location of the advertising.

A recurring element in the complaints made to Ad Standards about the Honey Birdette posters was reference to the fact that the posters were displayed in the store fronts of Honey Birdette stores within shopping centres, which are expected to be family-friendly environments. The situation would have been different if the imagery in question only appear in adult-content or in adult-specific media. Given that Honey Birdette stores are often located next to stores that would be visited by families, the posters were therefore visible to children in the shopping centres.

In September 2020, the AANA announced changes to the Code of Ethics and supplementary Practice Notes that related specifically to the use of sexual imagery in advertising. The changes were in response to the increased community concern around the growing use of sexual imagery in advertising and, as a result, children being exposed to this type of imagery. The aim of the AANA’s changes was to bring into focus the importance of protecting children from inappropriate sexual imagery and to avoid the use of overtly sexual images being used in advertising.

Specifically, the AANA guidance notes were updated to provide clear guidance that overtly sexual images are not appropriate in outdoor advertising or shop front windows. For further information on the changes to the Code and the AANA guidance notes, please see here.

It is possible the Community Panel would have reached a different determination if the posters were not visible from the community areas of the shopping centres. To explain further, there is similar imagery present on the Honey Birdette online store website, which we understand has not been complained about and as such Ad Standards has not had to rule on that material (it is unlikely, in our view, that it would be an issue). It follows that Honey Birdette may not have caught Ad Standards’ eye if the posters were in-store but not visible from the community areas (that is, facing away from the store front so that you could only see the posters if you were actually in the store).

This brings into focus the importance of understanding the audience of the advertising that you are bringing to market. It is not Ad Standards position to take down advertising that is genuinely showcasing products and services in a positive light, however Ad Standards is required to protect the interests of the consumers, particularly children, against the sensitive type of images featured in advertising such as this case.

Keeping abreast of the regulations

As a reminder, the Australian advertising industry operates under a system of self-regulation overseen by the AANA, and it operates with the intention of maintaining high advertising standards across the industry as a whole. All stakeholders are appropriately invested in this concept, as it serves everyone. The basis for the system of self-regulation is that there is industry support for the rules that govern advertising, and active participation by advertisers and advertising agencies to comply with these rules, largely to avoid the imposition of a far more onerous and non-commercial system that would more than likely apply if there was more government intervention. In short, the industry is best placed to regulate itself, and for the most part, it does so very effectively.

Importantly, where advertisers are found to not be complying with the regulatory framework, the self-regulation system also provides a way to assist with the removal of advertising that is inappropriate or in breach of the AANA Codes. For example, participating media operators may facilitate the removal of advertising should the Community Panel determine that the removal is the best course of action. For example, a free to air TV network will not broadcast an advertisement once it becomes aware that it was subject to an adverse Ad Standards finding. It follows that Ad Standards can seek the assistance of the shopping centres and the relevant landlords to remove the posters featured in the Honey Birdette stores, if Honey Birdette continues to not comply. How effective this would be of course, remains to be seen. We have seen similar “alternative” approaches to take downs in the past, such as the Wicked Campers examples. In those cases, Wicked Campers ran a business that provided station wagons and campervans for hire to tourists, and the vehicles were painted with slogans and jokes. In many instances, they were quite crude and in more than one case, quite offensive. Complaints were upheld about these messages on the basis they were Advertising under the Code, and when told to remove the Advertising, Wicked Campers refused to acknowledge Ad Standards’ authority. Only later, once the Queensland roads authority interceded and canceled the registrations of the vehicles in question did Wicked Campers pay attention.

In this case, we see the issue of a store refusing to take down own in-store posters as being a particularly problematic one, because of the confusing overlap between advertising, visual merchandising, decoration, and sales material. Just like in the Wicked Campers example, Honey Birdette is pushing their argument firmly, and there is little that Ad Standards can do in this case – however, we will need to watch this space on whether alternatives are used to get the job done here.

The system of self-regulation only continues to operate effectively for as long as advertisers continue to uphold the standards and integrity of the system, including operating to a level of best practice and being clear on the requirements under the Code and any process to follow in the event of a complaint or review. In other words, if everyone plays by the rules. As long as the self-regulatory system operates effectively, it will avoid the risk of the government intervention that would not be as efficient or appropriate for the advertising industry.

Accordingly, if advertisers start to knowingly breach the industry regulations, or even fail to comply with the determinations of the Community Panel, which is arguably worse given the impact of having inappropriate advertising in market, it does put pressure on the self-regulatory system as a whole. Should there be obvious gaps in the industry where advertisers are just not complying with the Codes, it does leave room for government intervention to take place.

This highlights that there is a vested interest in brands and their advertising agencies operating within the framework that the AANA and Ad Standards has developed.

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