Lovehoney -- which calls itself "the global leader in sexual happiness" -- recently ran an outdoor billboard in London, near a train station, promoting "ball gags" for sale on its website.  The ad featured a photo of ball gag along with the headline, "Silence is golden, Harry."  At the bottom, the ad said, "Spare ball gags available at www.lovehoney.co.uk."  

The ad was challenged at the UK's Advertising Standards Authority, which is the UK's primary advertising self-regulatory body.  The complainant challenged the ad on two grounds -- that it was offensive and that it was inappropriate for display in a place where children could see it.  

Is the ad offensive? 

The UK Code of Non-Broadcast Advertising and Direct & Promotional Marketing (referred to as the "CAP Code") prohibits ads that are "likely to cause serious or widespread offence."  According to the rule, "Compliance will be judged on the context, medium, audience, product and prevailing standards."  Significantly, though, "Marketing communications may be distasteful without necessarily breaching the rule," and the fact that a product is offensive to some people is not sufficient to violate the rule. 

Noting that "a ball gag was a sex toy that was placed in the mouth of a person to limit them from talking," the ASA said that it considered that some people would find the image of the item, and references to it, to be distasteful.  The ASA concluded, however, that the ad was unlikely to cause serious or widespread offence.  

Was the ad placed inappropriately? 

The CAP Code also says that "Marketing communications must be prepared with a sense of responsibility to consumers and to society."  

The ASA explained that the billboard was placed at a busy train station -- an untargeted medium -- where it has the potential to be seen by a large number of people, including children.  The ASA concluded that, given the subject matter of the ad, it was "inappropriate for children to see."  Finding that the ad violated the CAP Code's social responsibility standard, the ASA said, "We considered that while younger children were likely to be unaware of what the item was, older children might have greater awareness of what the object was intended for." 

What about the reference to Prince Harry? 

The ASA didn't appear to consider -- at least in its decision -- whether using Prince Harry (and an apparent reference to his book, Spare) created any issues under the Cap Code.  This was interesting, particularly in light of the fact that the Cap Code generally prohibits references to members of the Royal Family without their permission. 

Why is this case relevant to marketers in the U.S.? 

Although the billboard challenged here is pretty specific, and relates to compliance with the UK's own advertising standards, the case does raise some interesting things for marketers in the United States to consider.  

Most significantly, if this billboard had run in the United States, it's not likely that it could have been successfully challenged at the National Advertising Division, which is the primary advertising self-regulatory organization in the U.S.  That's because the NAD's jurisdiction is limited to questions relating to "the truth or accuracy of national advertising."  While the NAD recently expanded its jurisdiction to include "national advertising that is misleading or inaccurate due to its encouragement of harmful social stereotyping, prejudice, or discrimination," it's not likely that the ad violates this standard. 

There are self-regulatory organizations in the United States that that consider issues beyond whether an ad is truthful or misleading.  For example, the Children's Advertising Review Unit guidelines, which apply to advertising directed to children under the age of 13, require ads to be "respectful of human dignity and diversity" and prohibit advertising that "could unduly frighten or provoke anxiety in Children" or that "encourages behavior inappropriate for Children (e.g., violence or sexuality)."  As another example, the Distilled Spirits Council of the United States advertising code requires that distilled spirts advertising should portray products "in a responsible manner and reflect generally accepted contemporary standards of good taste."  And, to give one more example, the American Gaming Association's code prohibits casino advertisers from departing from "contemporary standards of good taste that apply to all commercial messaging, as suits the context of the message or the medium utilized."  

While self-regulation may not be an issue for a sex toy store's advertising -- or lots of other potentially controversial advertising -- in the United States, it's likely that the media organizations themselves may refuse to run the ad or may limit when the ad can be shown.  For example, the ABC network guidelines say that, "Advertising for intimate, personal care, contraceptive and fertility products is acceptable on a case by case basis" and "should be presented in a sensitive and tasteful manner, and will be subject to scheduling restrictions."  Twitter prohibits all advertising of sex toys on its platform.  And, if you're thinking of running an ad for sex toys on the New York City subway, that's prohibited too.  (If you're interested in reading about the the battles over sex toy advertising in New York City's transit system, you can read about that here.)

And, finally, what about that reference to Prince Harry?  Unlike in the UK, the general rule in the United States is that you're prohibited from using a person's name, picture, or likeness in advertising without the person's written consent.  What about the fact that the ad only featured a first name?  It's likely that a court would still find that -- since the ad was an obvious reference to a specific person -- the use would be prohibited.  (Check out, for example, the famous case that late night talk show host Johnny Carson brought against Here's Johnny Portable Toilets.)