Asked to write a legal article for boys' month, the mind wanered through a variety of lateral thoughts as to what to entitle it.
First I thought of ‘boys toys’ but then realised this could raise expectations that I would be writing about toys for adults and taking the opportunity to rehearse my Christmas wish-list. Then I thought of ‘boy brands’, but felt this might raise fears of a badly spelt article about Louis Walsh or similar. Finally sense returned and I defaulted to the theme for November, ‘boys month’.
So, think of boys, particularly primary school age, and you might typically think of sport, fighting, racing, flying, superheroes, and action generally in terms of theme or of action figures, trains, building sets, vehicles, R.T. and gaming consoles, mobiles and other electronic platforms in terms of product. Of course if this had been an article about boys toys for men, then the list would have been completely different… or maybe not.
Either way, it appears that soon such prejudicial thoughts could get brand owners, merchandisers and marketers into legal trouble, particularly if you tend to have similarly stereo-typical thoughts about merchandising brands and themes for girls and you’re tempted to emphasise the difference between the two.
Not to be confused with longstanding sex discrimination laws, a report on how marketing affects equality between men and women and perpetuates gender stereotypes has recently been adopted by the European Parliament. The report is not legally binding at the moment, but could be used to encourage regulators such as the Advertising Standards Authority (ASA) to monitor the use of gender stereotypes in advertising more closely. It is even possible that the report could be used as a basis for introducing new legislation.
Sound a long way off? Well in some ways the foundations are already in place for such a move; the International Chamber of Commerce (ICC) has long had a policy stating that advertising should not be discriminatory in terms of gender. In line with this, the ASA’s Committee for Advertising Practice (CAP) Code states that “It is illegal (with a few exceptions) for an advertisement to discriminate against women or men …”.
Arguably though, public opinion has had and will continue to have a bigger impact upon gender marketing than regulatory change. As traditional sexist barriers continue to erode, so will gender marketing necessarily become less fixated on stereotypes.
Nestlé’s 'Not for Girls' advertising campaign for the ‘Yorkie’ chocolate revolved around the message that Yorkie bars were not for girls. A series of women very obviously dressed up as stereotypical male characters were then ‘found out’ as women and refused Yorkie bars by shopkeepers. That campaign was and is of course perfectly legal, not just for the reason that it’s not meant to be taken seriously, but primarily because there is of course no actual discrimination at point of sale of the confectionary.
Unquestionably though, the Not For Girls campaign still provoked significant adverse reaction in the UK and even more so in other markets such as Norway. Whether that public reaction will encourage Nestlé to change its campaign looks unlikely, but it must make it less attractive for other brands to follow suit with similarly styled campaigns.
Perhaps the impact of changing public opinion will be most keenly felt in the boys sector. Whilst UK boy brands and merchandise are increasingly diverse and imaginative and have done much to dilute typical gender stereotypes, marketing in this sector can lag behind.
As a result, criticism of such stereotyping is bound to increase, if the reaction in other European countries is anything to go by. Take the example of Sweden’s Trade Ethical Council against Sexism in Advertising against Lego. The Council complained that Lego’s catalogue was degrading to both girls and boys, because it depicted a boy playing in a blue room with a fire station, a police station, trucks and an aeroplane, whilst a girl was shown playing in a blue room with equally stereo typical toys.
That degree of censoriousness may not yet have arrived in the UK, perhaps Lego’s own example illustrates this when - a couple of years ago Lego successfully defended a complaint to the ASA that animated, laser-firing, Bionicle, action figures shouldn’t be TV advertised when children of pre-school could be expected to be viewing.
Nor has the UK yet followed the example of other European countries in terms of the ban on sales of specific product-types targeted at boys, such as war toys.
However, it’s fair to say that further change is likely to come soon and, if it is not via self-regulation generated by public opinion, the EC will more than likely be driving the changes.
Ian Down is a partner in the entertainment, marketing and intellectual property department at Hamlins LLP, solicitors, in Regent Street, London and specialises in marketing and media law. Readers are advised that lawyers are like licensors – before you get a licence to rely on their advice you have to engage and pay them first. So please note that this article does not represent advice which may be relied upon or for which any responsibility is accepted by www.licensing.biz, the author or his firm.