THE PUBLIC HEALTH (Alcohol) Bill hit the news again towards the end of the year, as it finally made a reappearance in the Oireachtas after years of delay.
The alcohol industry has been quite vocal in its opposition to certain measures in the bill, including the restrictions it would place on advertising.
There have been numerous claims and counterclaims from both sides of the debate but, seeing as it’s Christmas time, we thought we’d put one of the more well-known claims to the test.
Claim: “In effect, the iconic Guinness Christmas ad will be banned [under the Public Health (Alcohol) Bill].”
What was said
First of all, to set the scene, here’s the advert in question in full.
That it would be banned was a claim made by lobbyists the Alcohol Beverage Federation of Ireland (ABFI). In September, it said the new rules will have “far-reaching negative consequences for alcohol advertising”.
In a video posted on its Twitter page, it said the following:
The Public Health (Alcohol) Bill contains stringent restrictions on advertising content. These restrictions are disproportionate and will not achieve their aim of reducing harmful drinking.
In effect, the iconic Guinness Christmas ad will be banned. Here is what ad might look like once the Bill comes into force.
It then proceeds to show its representation of what the ad would look like if the alcohol bill comes into effect. It says that no animals or people could be shown, for example.
#PHAB will have far-reaching negative consequences for alcohol advertising #CBLive pic.twitter.com/THqTAM6IOv
— ABFI (@ABFI_Ireland) September 18, 2017
In a later statement sent by the ABFI, it said that the “new laws will mean that adverts showing people, places, animals, storylines and happy scenes will all be banned”.
So what exactly does the law say?
Here’s where it gets tricky.
The section on advertising in the bill is quite small. Here’s what is says: “An advertisement for an alcohol product shall not contain anything other than…. all or any of the following”:
What’s listed there are the things that can go into an advert. This includes a reference to one or more alcohol products, an image or reference to the country and region of origin of the product, the premises where it was manufactured, and the price of the product concerned.
The law says that a “person shall not advertise, or cause to be advertised, an alcohol product unless the advertisement” complies with this section.
So any advertisements for alcohol can only include any or all of the 13 things listed there. And, indeed, animals, people, action sequences (aside from the production process), or storylines are not listed there.
But is the ABFI right about all aspects of the advert? Let’s break it down.
Bit by bit
Let’s say this first, the ABFI does make clear that this is what the ad “may” look like when it omits so many parts of it in the mock-up above.
The first part shows a wide shot of the Custom House in Dublin, from across the Liffey. It then shows a man out walking his dog as snow begins to fall.
On this one, it would appear that the part with the man would certainly have to be omitted.
Just to be clear, the phrase “no people” does not appear in Section 12, subsection (7) of the Public Health Alcohol Bill. That is used by the ABFI, here. When it says “no people” it is effectively drawing attention to the fact that “people” aren’t included in the list of things you can include in an advert.
Then, we have a couple throwing snow at each other. That’s out now, under the new laws, as are the people parting with kind words a few second later.
But what about later on in the ad? It then shows various location scenes. The ABFI says these images would be gone. Like these:
This is open to interpretation, however. The law says an alcohol advert can contain “an image of, or reference to, the country and region of origin of the product concerned”.
Of course, Guinness is made in Dublin, Ireland. So images and references to them would appear to be fine, under the laws.
Another scene shows a pub with a “closed” sign. Again, as it’s clearly an Irish pub somewhere in the country, that may fall under this provision. The ABFI say that it would miss the cut because it features a “storyline” but this is a tricky one, and certainly up for interpretation where the law is concerned.
Taking these parts that would definitely have to be taken out, they add up to approximately 23 seconds of a one minute advert.
Let’s break that down.
Under the interpretation of the law, it’s clear that the following scenes would almost certainly go:
So that’s less than half of the 60-second advert.
And what about those other elements of the advert that the ABFI say would go?
If you were to also exclude these parts of the advert and only include references to Dublin and Ireland (as reference to place of origin) and the end shot of the brewery itself, then around 31 seconds of the advert would be excluded.
By this measure, the shots of the pub would be taken out but is also up for debate on whether that would be banned, as it could be argued that it’s a reference to the place of origin.
So, no matter the interpretation you take, only around half the advert would need to be cut under the new laws.
Legal perspective
TheJournal.ie spoke to some legal experts in the area of media and advertising to get their perspective on the advert and the claims made about it.
Laura Fannin, from Hayes Solicitors, cited the criteria set out in the law for the things that can be included in advertisements and said adverts “can contain any of those things but nothing more”.
“Ads can only contain those very functional things,” she said. “There are certain parts of the advert – such as people and animals – that wouldn’t fall under this criteria.”
On the images of Dublin that appear in the advert, Fannin said that these sections would still be eligible for inclusion under the laws.
She said: “It all depends on how it’s interpreted. On a reading of how the bill is currently drafted, it would appear that references to a place of origin would be allowed.”
On when it would be changed, Fannin pointed out that it’s not like the advert will suddenly disappear if this Bill is enacted.
“It says in the bill that the provisions will come into effect ‘not earlier than three years’ and at a time when the Minister appoints,” she said.
And, as the Public Health (Alcohol) Bill has not exactly been rushed through the Houses of the Oireachtas, it is likely to be well into the next decade before the advert would need to be changed or scrapped entirely if the laws are enacted with the same wording that they have now.
For and against
The merits of an alcohol drinks brand advertising in such a way has been put under the microscope from groups such as Alcohol Action Ireland, which argues that the measures are good for society because the drinks industry will “no longer be able to hijack our every moment, reflect every emotion or share every success” in ads such as the Christmas Guinness one.
The ABFI’s director Patricia Callan, meanwhile, said: “These restrictions will make it extremely difficult for all drinks companies to advertise their products.
In particular, these restrictions are very harmful for small producers and new entrants who have invested heavily in breweries and distilleries across the country, are bringing new products to market and have less brand awareness.
Speaking on a debate in the Oireachtas on the Public Health (Alcohol) Bill, Fine Gael Senator Martin Conway said: “At one stage, the pitch that the lobbyists were making to us with regard to advertising was based on the Guinness Christmas advertisement.
I said frankly at the time that I did not care less about the Guinness Christmas advertisement. They have three or four years to pay people to come up with another creative advertisement to capture the imagination of the public.
Verdict
We asked the Department of Health for its opinion on whether the ad would be banned but it declined to comment.
We contacted the Advertising Standards Authority of Ireland, and here’s what they said: “At this time, the ASAI can only comment on individual queries and their compliance with the ASAI Code. ASAI cannot comment on specific cases, as to do so may prejudice any future case which could be complained about in the future. ASAI will review the provisions of the Code once the bill is enacted.”
So, we took what it says in the laws into account, and also the opinion from legal experts on interpretation of the Bill.
The claim, again, was: “In effect, the iconic Guinness Christmas ad will be banned [under the Public Health (Alcohol) Bill].”
Taking all that into consideration, we rate this claim: Mostly TRUE
As our verdicts guide explains, this means: “The claim is close to accurate, but is missing significant details or context. Or, the best available evidence weighs in favour of the claim.”
The ABFI is careful with its wording here. It says “in effect”. It doesn’t say that the ad will be banned, it says that “in effect [it] will be banned”.
By stripping over 20 seconds from the advert, you are taking away a significant portion of it. It is similarly unlikely that the advert would be repurposed – with the same music and imagery used – and just broadcast without those banned elements.
The ad as it currently exists would not be be allowed to be broadcast once the provisions of the law come into effect.
But to say that it’d be banned altogether is not the case, and some of the elements that the ABFI say would be excluded altogether – shots of the pub etc. – are subject to the interpretation of the law.
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