Motor vehicle advertising
The Advertising Standards Bureau (ASB) has compiled information about the Advertising Standards Board (Board) approach in applying the Federal Chamber of Automotive Industries Advertising for Motor Vehicles Voluntary Code of Practice (the FCAI Code).
This information highlights issues that should be considered when creating/releasing motor vehicle advertisements.
Board considerations under the FCAI Code
Between July 2009 to June 2010 the Board considered 20 cases under the FCAI Code (list below). Three of these cases were considered further under the Independent Reviewer process.
In cases considered further by the Independent Reviewer the issues of concern included:
- depiction of unsafe driving
- driving practices which breach laws, and
- references to acceleration capability.
As a result of issues raised in recent cases considered under the FCAI Code, the ASB highlights that:
- regardless of where a car is depicted driving, the Board must consider whether the driving depicted would be unsafe if it were on a road or road-related area.
- the Board will give a broad interpretation to driving practices or other actions under section 2(c) and then consider whether the driving practice or other action would breach the law in the jurisdiction in which the advertisement is broadcast.
- advertisers must be aware of the need to meet the intent and spirit of the FCAI Code as expressed in the Explanatory Notes, not just the substantive provisions.
The Board’s approach
The Board’s recent approach under particular parts of the FCAI Code.
2 (a) Unsafe driving
The Board’s approach to this provision has, for some time, involved firstly considering whether an advertisement portrays ‘unsafe driving’, before considering the provision further. Recent cases considering this provision have confirmed the Board’s approach.
So, the Board will consider whether the advertisement depicts:
- unsafe driving, or
- unsafe driving that is reckless and menacing driving that would breach any Commonwealth law or the law of any State or Territory in the relevant jurisdiction.
In both cases, there must be a depiction of ‘unsafe driving’ for the Board to find a breach of the section.
2 (c) Driving practices or other actions in breach of any law
The Board’s approach to section 2(c) is to consider firstly whether there is a relevant ‘driving practice or other action’ to which section 2(c) would apply, having regard to the examples provided with that section. The Board has taken the examples provided in the FCAI Code as guidance regarding the intended application of this provision.
The Board has previously considered the depiction of fog lights on motor vehicles solely under section 2(a). This was on the basis that the use of fog lights was not a ‘driving practice’ within the meaning of section 2(c), having regard to the examples provided with that section (for example, in cases 428/09 and 576/09).
Following Independent Review (case 182/10), the use of fog lights is now considered as a ‘driving practice or other action’ under section 2(c). Having decided that something is a ‘driving practice or action’ the Board considers the entire scenario depicted in the advertisement to determine whether the vehicle’s use of fog lights would be likely to breach the relevant traffic laws in considering the application of section 2(c).
Explanatory notes
Two recent cases (215/10 and 298/10) highlighted the issue of advertisements making references to the acceleration or speed capabilities of a vehicle contrary to the direction contained in the Explanatory Notes to the FCAI Code. The Board expressed concern (echoed by the Independent Reviewer in case 215/10) that advice contained in the Explanatory Notes could be disregarded without any breach of the substantive provisions of the FCAI Code. Advertisers should take care to ensure that use of references to acceleration capabilities must not give rise to an overall impression of unsafe driving, speed in excess of speed limits, or unsafe driving practices.
Issues not a matter for consideration under the FCAI Code
In accordance with a Practice Note to the FCAI Code made publicly available in April 2010 (a copy is available on the ASB website) depictions of left hand drive vehicles driving on the right hand side of road and the absence of number plates on motor vehicles being advertised are outside the scope of the FCAI Code and will not be submitted to the Board for determination.
These matters (left hand drive vehicles and number plates) do not raise an issue of road safety or vehicle occupant protection.
The Practice Note was made available to the public following case 511/09, in which the Independent Reviewer expressed concern about the transparency of Board determinations when using advice from the FCAI that was not included in the FCAI Code itself or otherwise publicly available.
Recent advertisements considered under the FCAI Code
The 20 advertisements considered by the Board in the 12 months July 2009 to June 2010 are:
Dismissed cases: 344/09
– Honda; 362/09
– Nissan; 363/09
– Ateco Automotive; 428/09
– Mitsubishi; 434/09
– Toyota; 455/09
– Ford;
478/09
– Ford; 600/09
– Toyota; 97/10 –
Toyota; 134/10
– Chrysler Australia;
136/10
– Ateco Automotive; 169/10
– Mercedes-Benz; 214/10
– Lexus;
223/10
– Nissan; 286/10
– Mazda; 298/10
– Porsche.
Upheld case: 576/09 – Lexus
Subject of Independent Review: 182/10 – Hyundai (Dismissed); 215/10 – Lexus Australia (Dismissed); 511/09 – Land Rover – (Dismissed)