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The European Union is offering member states the chance to relax existing restrictions on product placement in TV programmes, but the UK Government is not too keen. Brinsley Dresden reports

As part of a wider consultation on the Audiovisual Media Services Directive (AVMS), the Department of Culture Media and Sport (DCMS) is currently asking for feedback on the question of whether the UK should liberalise its controls on product placement in TV programmes. The Secretary of State at the DCMS, Andy Burnham, recently caused consternation in the industry by making his own views – that the UK should not relax the current controls – known in advance of the consultation exercise.

Burnham’s principal reason for taking this line is that allowing product placement would “risk damaging viewer and consumer confidence in the integrity of UK-produced programming”. He feels that any economic benefits that might arise from its introduction would be modest in comparison, and that the existing rules give sufficient editorial leeway for the use of branded products to provide realism. This viewpoint is reflected in the DCMS consultation document, but the Government says that it “nevertheless remains open to other options if there are strong arguments that the concerns can be met”.

Although other European Union (EU) member states have taken a more relaxed view, the UK’s approach to product placement in domestic programming has always been that it is clearly prohibited as a result of the requirement that editorial and advertising material should be kept strictly segregated. This principle, which originates in the EU’s Television without Frontiers (TVWF) Directive, is reflected in section 10 of the Ofcom Broadcast Code, which simply states that “product placement is prohibited”.

In practice, this ban on product placement is qualified in two important respects. First, ‘prop placement’ (i.e. the inclusion of products or services within programmes where they are provided for no charge, or at less than cost) has become acceptable practice in the UK, as long as it is editorially justified. Secondly, product placement is permitted within films and programmes produced outside the UK, provided that no UK broadcaster benefits from such placement.

In both of these cases, however, there is still an overriding obligation on the UK broadcaster to ensure that the relevant products or services are not given undue prominence. This can mean that product references in imported programmes have to be edited before they can legitimately be broadcast in the UK.

The AVMS Directive, adopted by the EU in December 2007, is the new name given to a much-amended version of the TVWF Directive. Coming into force in December 2009, its scope has been broadened to cover ‘audiovisual media services’; in other words, both television broadcasting (whether delivered through traditional platforms or via internet or mobile phones) and certain types of video-on-demand.

One of the main changes introduced by the AVMS Directive relates to product placement. While article 3G of the directive confirms that the basic starting point remains that “product placement shall be prohibited”, it then goes on to lay out a fairly sweeping derogation, allowing member states to permit product placement in certain types of programming. The derogation is applicable “unless a member state decides otherwise” – so it is open to each of the 27 member states of the EU to decide whether or not to take advantage of the relaxation in rules.

The Directive allows member states to permit product placement in the following types of programming:

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