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Product Placement Update: New Legislation

This is an update on the new legislation permitting product placement in UK broadcast television. It comes into force on 16 April. It gives effect to what Ben Bradshaw announced in February but there are some unexpected features which we describe in this note.

New rules on product placement

Regulations to implement Ben Bradshaw's 9 February Ministerial Statement on product placement in TV broadcasting have been laid before Parliament and come into force on 16 April, although broadcasters will remain bound by Ofcom's current prohibitions until it alters its Broadcasting Code some time this autumn.

Rules permitting product placement in on-demand programme services were made last year and have been slightly amended by these new Regulations.

Ben Bradshaw's Statement is available at the DCMS and the latest Regulations at the Office of Public Sector Information websites.

DCMS say that the new Regulations enact all the decisions which Ben Bradshaw announced in the Statement and they do indeed follow it closely. The detailed drafting does, however, introduce some interesting and unexpected features which will be of especial interest to those broadcasters and on-demand service providers who use acquired programming which contains product placement.

Children's programmes

In particular, the definition of a "children's programme" has changed. Where previously (in the 2009 Regulations) it had been defined simply in terms of a programme intended for viewing by the under-16s, irrespective of who made it, it is now limited to programmes for under-16s made for television and, for on-demand services, programmes for under-16s made for UK television alone.

So a programme for children which includes product placement and which was made for cinema showing will be permitted. If the programme was made for inclusion in a US (or French or wherever) on-demand service, it too will be permitted. But if it was made for inclusion in a television broadcasting service anywhere in the world, it will be prohibited. It is not clear why the rules should discriminate in this way against programmes made for broadcasting. It may just be an inadvertent consequence of the drafting. It means that broadcasters will be unable to buy in and show children's programmes from other broadcasters if they contain product placement. But if they were made for inclusion in any other kind of service (other than a UK on-demand service), there will be no problem.

Health and welfare restrictions

Television broadcasters will have to observe some special health and welfare restrictions so that, for example, there will be a complete ban on placing HFSS food and drink products in programmes to which the restrictions apply. The restrictions apply to any programme (other than a film) produced or commissioned either by the service provider or a connected person or by some other person for first showing in a UK television broadcast. So acquisitions are not affected unless they are for first showing in a UK broadcast. Acquisitions made for first showing on-demand in the UK are also not affected so an on-demand programme containing HFSS product placement, for example, could be sold to and shown by a UK TV broadcaster.

Informing viewers of product placement

Finally it is no surprise (because it was in the 2009 Regulations) that both broadcasters and on-demand providers will have to signal the presence of product placement at the beginning and end of a programme and at the end of ad breaks if the programme (including a film) has been produced or commissioned by the service provider or a connected person. So acquisitions are not affected but the connected person rule means that UK service providers with a film-making parent, sister or subsidiary may find this exceptionally burdensome. Unlike all other films, films made or commissioned by a group company will have to be surrounded by these product placement signals.