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 developing motor vehicle advertisements.
Board considerations under the FCAI Code
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.
As well as being considered under the FCAI code, complaints about motor vehicle advertisements may be considered under the AANA Code of Ethics if they contain content that may breach provisions of the Code.
The issues raised by complainants about motor vehicle advertisements mainly relate to:
- driving practices that would breach the law
- excessive speed
- unsafe driving, and
- environmental damage.
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.
Recent cases found in breach of section 2(a) of the FCAI Code:
BMW 0127/14, Chrysler Australia 0053/13, Mini Australia 0128/13, Nissan 0195/13, Nissan0203/13, Nissan 0204/13, Nissan 0205/13, Nissan 0230/13, Nissan 0246/13
Advertisers should take care in the development of their advertisements to ensure that they do not create an overall impression of unsafe driving.
2 (b) Driving in excess of speed limits
The Board’s approach to section 2(b) is to determine whether the motor vehicle appears to travel at a speed in excess of the legal speed limits in the relevant jurisdiction of Australia.
Cases 0272/11, 0357/11, and 0386/11 highlighted that motor vehicle speed was sometimes unclear or difficult to judge in advertisements. However, speed could be inferred by vehicle acceleration, advertisement context and audio and visual cues. In these particular cases, driving appeared to be controlled and within speed limits, so the Board dismissed these complaints.
Advertisers should ensure that use of references to acceleration capabilities must not give rise to an overall impression of speed in excess of speed limits.
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.
Issues discussed under Section 2 (c) of the FCAI code have included:
- the use of fog lights (Chrysler Australia 0091/13)
- the promotion of active braking features (Ford Motor Co 0178/13 & 0280/13)
- road rules regarding driver and passenger’s body parts staying inside vehicles when driving (BMW Group Australia 0165/12, Peugeot Australia 0330/12)
- indicating when changing lanes (Honda 0303/12)
- the use of seatbelts (BMW Group 0235/11)
- the correct fitting of children’s restraints (Volkswagen Group 0365/11 &0366/11)
In the FCAI code, other examples are given such as the illegal use of hand-held mobile phones in moving motor vehicles.
Advertisers should be cognisant and comply with all relevant road rules and legislation which may apply.
2 (d) Driving while being fatigued, or under the influence of drugs or alcohol
The ASB has recieved no complaints under this section of the code.
2 (e) Deliberate and significant environmental damage
The Board’s approach to section 2(e) is to firstly consider whether the advertisement shows material which appears to deliberately and significantly harm the environment, used more often in advertising off-road vehicles.
Cases for Chrysler Australia 0412/11 and Holden 0443/12 were considered under section 2 (e) of the FCAI code, and was dismissed by the Board. These cases highlight the distinction between driving off road on varying terrains in a safe manner and deliberately harming the environment. The Board in these cases determined that although the vehicle was shown driving across different terrains, it was not shown to be significantly harming the environment throughout the advertisement.
Advertisers may use scenes of motor sport or vehicle testing in advertising, subject to the following:
- the advertisement does not display material in breach of the provisions in clause 2,
- the scenes are clearly identifiable as part of an organised motor sport activity or testing, for which a permit would normally be available in Australia, or
- the racing or competing vehicles depicted have clearly identifiable racing livery.
A case for Holden 0182/13 featured a closed test track environment with a professional driver performing a ‘hot lap’ around this track. In this case, the Board considered that the professional racing attire of the driver, the disclaimer text ‘closed test track’ and the testing procedure were clear, and this case did not breach clause 3 of the FCAI Code.
The Board considered clause 3 in a TV advertisement by Toyota 0287/12 which featured a famous professional driver mapping out an ultimate track by driving on a temporary proving ground leaving an imprint of a racing track. This advertisement made a clear connection with motor sport using an appropriate disclaimer, by showing preparation scenes with high visibility crew and had continued references to testing and clearly identifiable racing livery. This case was found to comply with all provisions of the FCAI Code.
Advertisers should note that if using a depiction of motor sport in advertisement, it must be made clear through the themes, visuals and racing livery that the driving activity is clearly part of an organised motor sport or testing practice.
4 Depiction of off-road vehicles
An advertisement may legitimately depict the capabilities and performance of an off-road vehicle travelling over loose or unsealed surfaces, or uneven terrain, not forming part of a road or road related area.
Such advertisements should not:
- portray unsafe driving
- portray vehicles travelling at a speed which would contravene the laws of the State or Territory in which the advertisement is published or broadcast, were such driving to occur on a road or road related area.
There are no recent cases which have been considered under this provision.
Issues not considered under the FCAI Code
In accordance with a Practice Note to the FCAI Code, made publicly available in April 2010, 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
Dismissed cases: Chrysler 0057/14, Isuzu 0138/14, Nissan 0144/14, KIA 0156/14, Nissan 0202/14, KIA 0231/14, Nissan 0316/14, Xoticar 0333/14, Isuzu 0408/14, Honda 0412/14, Mazda 0413/14,Mitsubishi 0506/14, Ford 0178/13, Holden 0182/13, Suzuki 0209/13, Honda 0251/13, Ford 0280/13, Nissan 0286/13, Hyandi 0294/13, Hyandi 0295/13, Holden 0296/13, Holden 0299/13, Hyandi 0312/13, Holden 0339/13, Mitsubishi 0343/13
In order to search for particular cases or issues, it is possible to do an advanced search for Standards Board cases and highlight certain FCAI issues.