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08.01.2015

Guideline on product placement

Product placement is customary primarily in the film and television industry, however it is only a legitimate practice under certain conditions. In this process, products and services are integrated into broadcasts. Product placement after all means "the effective tendency to blur the

Product placement is customary primarily in the film and television industry, however it is only a legitimate practice under certain conditions. In this process, products and services are integrated into broadcasts. Product placement after all means "the effective tendency to blur the boundaries between reality and advertising" (Rhineland- Palatinate Higher Administrative Court, 22.8.2013, Case: 2 A 10002/13.OVG).

Particularly in the confectionery industry, integrating products into films and television programming is a popular way of promoting sales. For example, various Ferrero products could be seen in the display window of "Spätkauf“, a kiosk and meeting place of members of the show "GZSZ" on an advertising poster.

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Another example is the Bahlsen chocolate cookie "Pick up!", which was seen in the show "Dschungelcamp", and in the Matthias Schweighöfer comedy "Schlussmacher".

Product placement is defined as the explicit mentioning or display of goods, services, names, trademarks, activities by a manufacturer of goods or a service provider in broadcasts in exchange for payment or other similar consideration with the aim of promoting sales. The provision of products or services without payment is product placement if the goods or services in question are of significant volume. In principle, product placement is impermissible, as is thematic placement and surreptitious advertising. This guarantees the separation between editorial content and advertising ("separation requirement"). In any case, Section 7(7) German Interstate Treaty on Broadcasting permits exceptions from this prohibition.

1. Requirements for permissible product placement

Section 7(7) Interstate Treaty on Broadcasting eases the strict requirement of separation between programming and advertising somewhat. Release from the separation requirement, however remains limited to a few exceptions, and these are subject to tight conditions.

a) Maintenance of editorial responsibility (no. 1)

In addition, maintenance of editorial responsibility and independence with regard to content and broadcasting space must still be guaranteed. The significant content of product placement, i.e. the subject matter, as well as the type of placement, must be approved by the editorial staff. Those responsible for editing must inform the broadcaster whether product placement will take place and if so which products and services are involved.

b) No promotional references (no. 2)

In order to prevent a further easing of the separation requirements, no direct promotional references to the acquisition of products and services can be made. This means that the trademark of the product, for example a refrigerator, may be visible in a film, but the quality of the products shown may not be explicitly praised or highlighted in a manner that does not correspond to everyday communication. The precise separation here can be a great challenge.

c) No emphasis (no. 3)

In addition, the product or service cannot be particularly emphasized. This standard is intended to protect the core of the principle of separation and has two protective aims. "Firstly, it is intended to protect the freedom of the media, as well as to maintain objectivity and neutrality of the media with regard to competition in the market as prerequisites for diversity of opinion in programming, secondly it serves to protect the viewers who approach editorial content in a more trusting manner than promotional messages.“ (Rhineland-Palatinate Higher Administrative Court, 22.8.2013, Case: 2 A 10002/13.OVG). Unlike prerequisite no. 2, emphasis does not entail explicit sales promotion by the praising of products and services, but rather the creation of an impression of this kind by other means. This can, for example, take place in a street scene by means of the insertion of an advertising panel.

Product placement must always be included in the flow of the scene, so the product cannot be emphasized more than is necessary for the performance of the scene. For example, the symbolic identification of a protagonist with the brand is not permitted because an endorsement of this kind results in that prominent person’s reputation to be transferred to the product or service.

2. Low-value products

In accordance with the legal definition of Section 2(2)(11) Interstate Treaty on Broadcasting, the placement of low value products made available free of charge cannot be considered product placement because in any case, there is no risk of a direct influence on the program. Otherwise a legitimate financing source and opportunity for cost savings would be removed. The difficulty is, however, in determining when the product is to be classified as of low value. In order to prevent potential abuse, a rather low threshold appears necessary. A relative limit of 1% could be envisaged, or an absolute limit of EUR 1.000 (in accordance with the ARD/ZDF Advertising Guideline of March 12, 2010, Article 9.1).

In the determination of low value, the value of the product or service itself is not to be used as a basis, but rather the rental costs, because expensive items, e.g., cars or houses, are often not purchased during the working on a film. These costs, however, are often very difficult to estimate as it would need to be determined which costs would have been incurred and for what period of time if the item had not been made available free of charge.

If the low value limit is not exceeded, there is still the risk that the placement may constitute (prohibited) surreptitious advertising.

3. Identification obligations

Section 7(7)(3) Interstate Treaty on Broadcasting has now created an identification obligation for product placement. This is intended to ensure transparency. This can, for example, be done by means of an appropriate caption at the beginning or end of the program.

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Authors

Ulrich Reber

Dr. Ulrich Reber

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