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chinese crested dog

VIEWS: 32 PAGES: 9

									                                                                            07/285


                                     DECISION

                             Meeting 14 August 2007


Complaint 07/285


              Complainant: D. Falconer & Others
              Advertisement: Lion Nathan New Zealand Limited

Complaint: A television advertisement (key number STN 60001) for Steinlager Pure
shows actor Harvey Keitel walking towards the camera making a number of
statements including “What you say no to always defines you.” As he walks past a
rocket in a theme park he says: “You said no to nuclear power even though you
invented it”. An image of a roller coaster is in the background when Keitel says:
“When the world said Everest couldn’t be conquered you said no”. An image of a
man with a puppet gorilla accompanies the words: “And when they said box office
hits could only be made in America, you said no to that too”. In the background as
Harvey Keitel orders a drink at a bar, there is a woman walking a Chinese Crested
dog, while he says: “And now you are saying no to genetic modification”. The
advertisement ends with an image of a Steinlager Pure bottle and the words “No
Additives, No Preservatives” and “keep it pure”.

Complainant, D. Falconer, said:

“Where: Steinlager Advertisement - last night TV 2 or 3
Who: Steinlager
Product: Beer

Complaint -
Makes an inference that the Chinese Crested Dog is in fact genetically modified
when in fact it is not.

I saw the ad again last night at 9:10pm on TV 3. It is for the Steinlager Pure
advertisement on TV.”


Duplicate Complainants shared similar views.
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The Chairman ruled that the following provisions were relevant:

Code of Ethics

Rule 2: Truthful Presentation - Advertisements should not contain any statement or
visual presentation or create an overall impression which directly or by implication,
omission, ambiguity or exaggerated claim is misleading or deceptive, is likely to
deceive or mislead the consumer, makes false and misleading representation,
abuses the trust of the consumer or exploits his/her lack of experience or knowledge.
(Obvious hyperbole, identifiable as such, is not considered to be misleading).


Legal Counsel for the Advertiser, Lion Nathan New Zealand, and Agency,
Publicis Mojo Limited, said:
”
1    I act for Lion Nathan New Zealand Limited and their advertising agency,
     Publicis Mojo Limited. I am instructed by them to lodge this submission in
     response to complaint 07/285.

2    The advertisement in question is a television commercial for a new beer called
     Steinlager Pure and which has been appearing on the three television channels
     at various times after 8.30 pm. Steinlager Pure is a smooth flavoured lager with
     all New Zealand ingredients (malted barley, hops, yeast and water) and is
     completely free of additives and preservatives.

3    Rule 2 of the Code of Ethics has been highlighted as the relevant provision by
     the Advertising Standards Authority.

4    The advertisement in question features the well-known American actor called
     Harvey Keitel whose many parts have included a lead role in the New Zealand
     film "The Piano" (1993). Keitel credits Jane Campion for helping him alter his
     tough-guy persona with his surprisingly romantic portrayal of Holly Hunter's
     lover in that film, although his more typical, cool machismo was again evident
     in the film "Pulp Fiction" (1994). He has received an Academy Award for Best
     Supporting Actor in the film "Bugsy".

5    The advertisement shows Keitel walking through an amusement park on Coney
     Island. As he does so he speaks about the landmark achievements of New
     Zealanders. These are expressed as saying "no" to various things and
     triggered by images or props in the immediate vicinity, as follows:

          "no" to nuclear power even though you (Lord Ernest Rutherford) invented
           it, with an associated image of an old-fashioned rocket

          first to say "no" when only men had the right to vote (as the result of the
           work of Kate Sheppard) with the associated image of a bearded lady in a
           booth

          when the world said Everest couldn't he conquered, you (Sir Edmund
           Hillary) said `no', with an associated image of a summit of a roller coaster
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          when the world said box office hits could only be made in Hollywood, you
           (Peter Jackson) said `no', with an associated image of an ageing busker
           with a stuffed toy monkey

          and now saying `no' to genetic modification, with an associated image of
           a somewhat unusual looking dog trotting past Keitel in the background.

     After this build up, the advertisement winds up with the punchline, you are even
     saying "no" to additives in your beer and the final observation that "it is good to
     know you take a stand when it counts".

6    The whole tone and style of the build up in the advertisement is portrayed in a
     humourous and deliberately exaggerated way reflected in the phraseology, the
     accompanying music, the somewhat obsolescent setting and the somewhat
     antiquated props. It is reminiscent of something from one's childhood. It
     conjures up scenes from a fairground from one's childhood. The dog is also
     quite different from dogs that we would normally see in New Zealand and is
     perhaps an animal that you would not be surprised to find in the setting of a
     fairground.

7    It transpires that the dog is a Chinese Crested dog which is a pure bred dog
     that was to be found in China as early as the 13th century. It is recognised for
     its highly unusual appearance and, somewhat unkindly, some of its breed has
     attracted some unflattering awards around the world. It is not a dog which
     would normally be exhibited except at very specialised dog shows.

8    The choice of the Chinese Crested dog for the advertisement was a completely
     random decision and my clients certainly did not have any intention to insult or
     offend the breed or the people associated with the breed. This was far from
     their minds. While the implication from the advertisement is that the dog has
     been genetically modified, it is difficult to take this too seriously in the context of
     the whole advertisement.

9    We submit it is very much "obvious hyperbole" for the purposes of the
     exception in Rule 2 of the Code of Ethics and the advertisement should not be
     found to be in breach of that Rule.

10   This is also borne out by the results of research carried out on behalf of the
     advertiser. This was done through Smile City which is New Zealand's largest
     online research panel. The research questions were inserted into Lion Nathan's
     "multi-beverage tracker" and they were directed at a broadly representative
     audience of 18 to 65 year-olds throughout the country. The questions were in
     place for 2 weeks and as a result of this 232 people responded. Admittedly this
     is a relatively short response period but it does give us some indication as to
     what people thought about the advertisement. People were asked to what
     exent they agreed or disagreed with the following two statements:

          "I found the scene and people in the ad a deliberate exaggeration of the
           topics"

          "The scenes and people in the ad added humour to the ad and increased
           enjoyment of the ad".
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     The results are presented in graph form at Appendix A. It will be seen that 36%
     of the respondents totally agreed with the first statement, 28% were neutral and
     36% totally disagreed with it. In relation to the second statement 58% of the
     respondents totally agreed with it, 23% were neutral and 19% totally disagreed
     with it.

11   It is submitted that a percentage of 36% who wholeheartedly accepted that the
     advertisement was a "deliberate exaggeration" is a significant proportion of the
     population. This, together with the 58% who thought that the scenes and
     people added humour and increased the enjoyment of the advertisement,
     goes a long way to satisfying the "obvious hyperbole" character inherent in the
     advertisement and which was very much the outcome the advertiser wanted.

12   The advertisement certainly doesn't encourage the mistreatment of animals
     and, in this regard, is perhaps more innocuous than an advertisement for Walls
     sausages screened in the United Kingdom. The advertisement can be found at
     www.wewantwalls.co.uk         and    the   UK     ASA     determination     at
     www.asa.org.uk/ASA Appbase/Annual report 2004/top 10_broadcast6.shtml.
     The advertisement shows a dog fighting a man for a plate of cooked sausages
     and concluded with the dog jumping out of a window which the man then shut.
     Trying to jump back in, the dog hit the glass and slid down the window pane.
     Viewers complained that the advertisement would encourage abuse of animals,
     or frighten children, although most acknowledged that it was obvious that the
     dog was not real. The UK ASA considered that this type of exaggerated comic
     slapstick was unlikely to encourage real life mistreatment of animals or to
     frighten children. A similar outcome was reached in the case of another UK
     advertisement which showed a man attempting to catch a budgie between two
     slices of bread.

13   In summary, it is submitted that the advertisement meets the "obvious
     hyperbole" threshold for the purposes of Rule 2 and should be allowed to
     continue. We base this on the actual nature and context of the advertisement
     and which appears to be supported by the research findings.”


Television Commercial Approvals Bureau (TVCAB) said on behalf of the media:

“TVCAB has been asked to respond to this complaint under the Code of Ethics - Rule
2 truthful presentation.

There were several complaints from viewers who disagreed with the inference that
the Chinese Crested Dog shown in this advertisement was genetically modified.

In this commercial - "What you say no to defines you” Harvey Keitel states a number
of stances New Zealand has taken over the years such as saying no to nuclear
power and the first country to say no to only men having the right to vote. As he seats
himself at a bar and speaks of no to genetic modification a woman walking a Chinese
Crested dog passes along the pavement outside.
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TVCAB regret that a few complainants have taken offence at the implication but the
agency making the commercial assures us they did not intend to imply the breed was
genetically modified - it was purely meant to be a hyperbolic background shot.

We request that the implication be accepted as a genuine oversight and the
complaint be not upheld.”


Deliberation

The Complaints Board perused all relevant correspondence and the viewed a copy
of the advertisement. It noted the Complainants sincere concerns that the
advertisement for Steinlager Pure contained a clear reference to the Chinese
Crested dog as a breed that had undergone genetic modification and that this was
not correct.

The Chairman directed the Complaints Board to consider the complaints with
reference to the Rule 2 of the Code of Ethics.

The Complaints Board noted that Rule 2 of the Code of Ethics required truthful
presentation in advertising to ensure consumers were not misled or confused. The
Complaints Board also noted that Rule 2 acknowledged that obvious hyperbole, that
is identifiable as such, was not considered to be misleading.

In addressing the concerns of the Complainants, the Complaints Board noted the
response of Counsel for the Advertiser, who acknowledged the “Chinese Crested
dog as a pure bred dog that was to be found in China as early as the 13th century”.
The Complaints Board also noted the advice from Counsel that there was no
“intention to insult or offend breeders or the people associated with the breed”.

The majority of the Complaints Board agreed that taking into account the obvious
hyperbole employed in the advertisement to illustrate all the statements made by
Harvey Keitel, including a rocket to symbolise nuclear power and a roller coaster to
symbolise Mt Everest, along with a dog with distinctive features during a reference
to genetic modification, the advertisement was not in breach of Rule 2 of the Code
of Ethics.

A minority of the Complaints Board disagreed. In the minority’s view, the use of the
Chinese Crested dog to illustrate a statement about genetic modification was likely
to mislead the consumer about the dog breed and was an error of fact. The minority
of the Complaints Board did not consider that the hyperbole in the advertisement
prevented it from being in breach of the Code.

However, in accordance with the majority view, the Complaints Board ruled to Not
Uphold the complaint.




Decision: Complaint Not Upheld
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                                   DECISION

                               Chairman’s Ruling

                               18 September 2007

Complaint 07/285

Appeal 07/022


              Complainant: D. Falconer, G. Doyle, J. Bryce & Others
              Applicants: G. Doyle & J. Bryce
              Advertisement: Lion Nathan New Zealand Limited


Complaint: A television advertisement (key number STN 60001) for Steinlager Pure
shows actor Harvey Keitel walking towards the camera making a number of
statements including “What you say no to always defines you.” As he walks past a
rocket in a theme park he says: “You said no to nuclear power even though you
invented it”. An image of a roller coaster is in the background when Keitel says:
“When the world said Everest couldn’t be conquered you said no”. An image of a
man with a puppet gorilla accompanies the words: “And when they said box office
hits could only be made in America, you said no to that too”. In the background as
Harvey Keitel orders a drink at a bar, there is a woman walking a Chinese Crested
dog, while he says: “And now you are saying no to genetic modification”. The
advertisement ends with an image of a Steinlager Pure bottle and the words “No
Additives, No Preservatives” and “keep it pure”.


Complainant, D. Falconer, was of the view that the advertisement was misleading
as it made “… an inference that the Chinese Crested Dog is in fact genetically
modified when in fact it is not.”

Duplicate Complainants shared similar views.


The relevant provision was the Code of Ethics, Rule 2: Truthful Presentation.
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The Complaints Board ruled at its meeting on 14 August 2007 to Not Uphold the
complaints. Part of its deliberation said:

“The majority of the Complaints Board agreed that taking into account the obvious
hyperbole employed in the advertisement to illustrate all the statements made by
Harvey Keitel, including a rocket to symbolise nuclear power and a roller coaster to
symbolise Mt Everest, along with a dog with distinctive features during a reference
to genetic modification, the advertisement was not in breach of Rule 2 of the Code
of Ethics.”


Applications for Appeal

G. Doyle, NZKC member, Internationally accredited All Breeds Judge, submitted the
following application:

“I am in receipt of your decision re this matter and I find the result of your "enquiries"
to be less than acceptable.

I have read the letter from the legal representative of Lion Nathan and apart from a
considerable amount of extraneous drivel it also contains a major flaw and
unfortunately this flaw is one that may well have influenced some of your committee.

I refer to clause 7 and the statement that "It is not a dog which would normally be
exhibited except at very specialized dog shows".

I would submit that I have vastly more experience of dog shows than the writer and I
can say quite emphatically that the writer is completely wrong and is in my opinion
successfully misleading the committee.

Today in the mail I received the entries for a local All Breeds show, just one of many
run throughout the year in New Zealand, this show has a total of 104 different breeds
and the Chinese Cresteds rank as 16= in the number of entries. This makes a total
mockery of the so called legal opinion.

Also in the NZKC records the breed ranks as 72nd out of 194 registered breeds.

I and many other dog owners I have spoken to find the comments of the unnamed
legal representative to be as expected from a firm’s legal advisor, very slanted and
bordering on deliberately misleading.

To those members of the panel who did vote in favor of upholding the complaint, my
thanks, to the remainder I would suggest that they get a grip on reality and check the
facts before making decisions.”

J. Bryce submitted the following application:

“Thank you for the copy of the Boards Decision relating to the Steinlager Pure
Television Advertisement - Complaint 07/285
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I wish to make it known to the ASA that I take issue with several points made in
this document:
       #2 The product's "smooth flavoured" taste and New Zealand content is not in
       question

      #4 The professional ability and "surprisingly romantic' on screen portrayals of
       the actor is not in question

      #5 The observation "a somewhat unusual dog trotting past" is highly
       subjective

      #6 "The dog is also quite different from dogs we would normally see in New
       Zealand" - this is untrue. Chinese Crested Dogs were first imported to New
       Zealand in the 1970's they are now well known and recognized by the general
       public. Once again I find the comment "an animal that you would not be
       surprised to find in the setting of a fairground" subjective. It would seem that
       the unnamed Counsel is attempting to paint a picture of ridicule. A rather odd
       comment as the advertisement does not portray the dog as a fairground
       attraction. The dog is seen "trotting past" the actor as he enters a bar.

      #7 Contains totally irrelevant and ill informed comment on the Chinese
       Crested Breed. I believe Counsel is referring to the Chinese Crested Dog x
       bred dog which won the title 'World's Ugliest Dog' - Counsel may also be
       interested in the many International Awards this Breed has achieved in
       competition against other breeds. I would be happy to provide these details.
       Chinese Crested Dogs are exhibited at most All Breed dogs shows in New
       Zealand. It is my understanding that the Chinese Crested Dog is now
       statistically the 16th most often exhibited breed in New Zealand.

      #8 Contains two extraordinary statements the first being "The choice of the
       Chinese Crested Dog for the advertisement was a completely random
       decision" The use of imagery is well researched, documented, and agreed as
       an integral part of advertising. The fine ethical line between fact and fantasy is
       one that all reputable advertisers are consistently aware of. Therefore I do not
       accept this assertion. Am I seriously being asked to believe that this company
       would have considered using a Labrador in this advertisement? The second
       statement I find extraordinary is "while the implication from the advertisement
       is that the dog has been genetically modified, it is difficult to take this too
       seriously in the context of the whole advertisement". This statement admits to
       implying the Chinese Crested Dog is a genetically modified breed - it
       also acknowledges this to be untrue.

      #9 A dangerous precedent is set as the company seems to believe that it is
       okay to imply an untruth if it is portrayed in a humorous manner. I strongly
       disagree.

      #10 & #11This research is qualitatively and quantitatively flawed, I do not
       believe any decision should have been based on such research.

      #12 This statement is irrelevant - there has been no suggestion made that
       any animal was harmed in the making of this advertisement.

      It is surprising to read that the TVCAB are willing to accept the 'implication' as
       a genuine oversight. I do not believe the producers of a glossy and
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        expensive advertisement such as this would unknowingly make this
        implication.
I wish to have this matter appealed.”


Chairman’s Ruling

The Chairman perused the applications for appeal. He then referred to five grounds
on which an appeal was able to proceed as set out in the Second Schedule to the
Constitution. These were as follows:

“6. APPEAL

(a)

(i)     The proper procedures have not been followed.

(ii)    There is new evidence of sufficient substance to affect the decision.

(iii)   Evidence provided to the Complaints Board has been misinterpreted to the
        extent that it has affected the decision.

(iv)    The decision is against the weight of evidence.

(v)     It is in the interests of natural justice that the matter be reheard.”


The Chairman noted that the appeals before him focused on the issue of whether
the advertisement implied that the Chinese Crested dog was a breed that had
undergone genetic modification, and whether this fact had been given due
consideration by the Complaints Board in making its determination to not uphold the
Complaint .

In the Chairman’s view, the Complaints Board had made a fair and balanced
decision on that issue based on the content of the advertisement and all
submissions received, and had not been unduly influenced by the responses from
the legal counsel for Lion Breweries or any other party. The Chairman reiterated the
majority decision of the Complaints Board where it said: “… taking into account the
obvious hyperbole employed in the advertisement to illustrate all the statements
made by Harvey Keitel, including a rocket to symbolise nuclear power and a roller
coaster to symbolise Mt Everest, along with a dog with distinctive features during a
reference to genetic modification, the advertisement was not in breach of Rule 2 of
the Code of Ethics.”

Having made the above observation, the Chairman said the applications for appeal
did not fulfill any of the five grounds on which an appeal was able to proceed.

The Chairman ruled that the applications for appeal be declined.


Chairman’s Ruling: Application for Appeal Declined

								
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