Product placement in film and television: keys, limits and precautions

Julia Martínez Zaragoza, lawyer at Bardají&Honrado, addresses the always controversial issue of product placement, which can cause problems in film and television audiovisual productions if each case is not carefully examined.

As readers of this article most likely already know, the use of advertising integrated into audiovisual content It is one of the possible ways of financing the productions. One of the most subtle ways to do this is through product placement or product placement, as it is commonly known.

In the product placement, the product or brand that you want to promote is included within the common thread of the audiovisual work forming an integral part of it and without having a promotional burden.

Although product placement is generally allowed, some must be taken into account. limitations imposed by law when carrying out this practice. The regulatory body that mainly regulates the possibility of issuing advertising of this type is the General Law of Audiovisual Communication of last July 2022 (which replaces the previous one from 2010), although there are other regulations that complement it and that must be taken into account.

Restrictions and requirements

Firstly, and like the rest of advertising practices (self-promotions, advertisements, telesales...), a series of rules apply to product placement. general restrictions that have so much to do with type of advertising as with him kind of product.

• Regarding the restrictions relating to type of advertising The rule says that advertising cannot be carried out that could violate fundamental rights: dignity, discrimination for any reason (sex, race, origin, disability, beliefs, nationality, heritage and a long etcetera), that encourages harmful behavior, or that uses the image of women in a humiliating manner. Furthermore, advertising cannot harm minors of physical, mental or moral age, nor incite or encourage them to make any purchase, nor can they be incited to take or carry out violent behavior, or provoke a rejection of their self-image.
• Regarding the type of product, it is not allowed to advertise products considered harmful to health (nothing that has to do with cigarettes or medications outside of what is established by its regulatory law) and in relation to other products such as top alcoholic beverages o no a 20º, esotericism, gambling and betting, may be advertised following certain guidelines indicated in the Law, more or less rigorous depending on the danger of such advertising for the health of the public.

To these general restrictions are added others specifically applicable to the placement of the product in audiovisual productionsWell, this practice not allowed on news and current affairs programs, in those related to issues related to consumers, in religious programs, nor in children's programs.

Furthermore, the Law establishes a series of essential requirements To consider that the product placement is done correctly:

• You may not influence the editorial content or the organization of the programming schedule or the catalog in a way that affects the responsibility and editorial independence of the service provider of audiovisual communication.
• will not be able directly encourage the purchase or rental of goods or services nor include concrete promotion references to said goods or services.
• You should not grant a undue prominence to the products in question.
• It is necessary indicate that this is a product placement at the beginning, at the beginning of each resumption after an interruption, and at the end of the program.

The issue of undue prominence

Of these four requirements, perhaps the third is the one related to the undue prominence of the product, the more controversial Due to the interpretive difficulty regarding what should or should not be considered undue prominence. In fact, the most famous judicial cases regarding product placement have revolved precisely around the compliance or not with this requirement.

Los judicial matters most famous in terms of product placement have revolved around compliance or not with the requirement of the product prominence.

An example of this is the Sentence of the National Court of June 14, 2019 that annulled (the Supreme Court later confirmed this annulment) an economic sanction to Atresmedia for a value of 413,434 euros that had been previously imposed by the CNMC having made a product placement of a gardening materials series in a program dedicated to this sector. In the opinion of the CNMC, this product placement would have given undue prominence to said products, however the courts considered that such prominence did not occur and that the advertising action had been carried out lawfully.

Although each case must obviously be examined to this, from the resolutions of the CNMC and the sentences of our courts it is possible to extract some common guidelines when considering the existence or not of undue prominence. In this sense, the following factors are especially relevant: (i) the duration of the shot in which the product appears; (ii) the closeness or visual effects of the same; (iii) the reiteration of plans; (iv) the realization of verbal mentions regarding the virtues of the product; and (v) that the product in question not part of the logical decoration of production and therefore ceases to be a decorative element.

How are product placement and covert advertising different?

Compliance with the requirements described when carrying out a product placement is essential to distinguish this practice from the covert advertising. Both the Law and the CNMC are especially blunt with the prohibition of surreptitious and subliminal advertising, being another of the exceptions generally applicable to all types of advertising.

Specifically, the covert advertising It is one that misleads the population as to whether advertising is really being done or not, since at the beginning it is not perceived (although an effort is made "extra” by the user). For its part, the Subliminal publicity It is one that, directly, is not perceived in any way by the public.

The most important difference between product placement and the covert advertising is the existence or not of a advertising purpose.

The most important difference between product placement and the covert advertising is the existence or not of a advertising purpose. As we said, the product placement should not directly encourage the purchase of the product or service, which implies that its presence within the audiovisual work must have a non-substantial character, in the context of a certain decoration, and in any case devoid of any promotional load. Covert advertising, however, has a clear advertising purpose, which can be achieved by highlighting the virtues of a product of a certain brand, so that the public can be led into error ignoring its existence and inciting them to buy certain products without clearly indicating it.

Regarding covert advertising, the Sentence of the Supreme Court of December 13, 2021, which came to Confirm (which had already been previously confirmed by the National Court) a financial penalty of 196.038 euros previously imposed by the CNMC to Mediaset for carrying out covert advertising of a series of erotic products in the chapter titled “An anniversary, a toupee and a tupper-sex meeting” from the series The one that is coming. In the episode a session of tupper-sex in which a wide variety of erotic articles were shown, explaining their benefits and positive characteristics, also showing both the mark as website in which they can be purchased.

Covert advertising is a topic in which limits between legality and illegality are, sometimes, diffuse.

Both the National Court and the Supreme Court considered that, although the existence of product placement in the episode of the series had been reported, the set of images in which the articles and the brand appeared had, as a whole and in reality, an advertising purpose hiding it with the activity of tupper-sex, without it being in any case a product placement due to its own characteristics.

Therefore, yes, it is possible to do product placement in audiovisual productions as long as it conforms to the limits and requirements established by Law, and provided that a case of covert advertising. It is therefore a topic in which the The boundaries between legality and illegality are sometimes blurred., so despite the general lines outlined here, each case must be the subject of a detailed analysis.

Julia Martínez Zaragoza

Lawyer at Bardají&Honrado

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