Product Placement - Landmark German decision in "Pick up" case

The Lower Saxony media regulator NLM objected to the product placement of the "Leibniz Pick up" chocolate biscuit made in 2014 in a sequence of the TV series "Ich bin ein Star – holt mich hier raus" (Dschungelcamp) qualifying it as being inadmissible. The legal definition of product placement is "the identified representation of goods in programmes in return for payment of for similar consideration, in order to promote sales". Under the Interstate Broadcasting Treaty (RStV), product placement is admissible, inter alia, in light entertainment programmes (Art. 44 RStV) provided that several requirements are met, one of them being that the product shall not be unduly prominently placed (Art. 7 (7) sentence 2 no. 3 RStV).

On 18 February. 2016, after having viewed the criticised sequence through an oral hearing, the 7th Chamber of the Administrative Court confirmed the assessment made by NLM that the product had been unduly prominently placed. Although the Interstate Treaty authorises product placement in the given context of entertainment programme, even by means of strong prominence, it prohibits "undue prominence" so that the separation between commercial and editorial content could remain recognisable. A placement is considered as "unduly prominent" if the advertising purpose dominates the events of the programme and the natural flow of action is thereby placed in the background.

• The first scenes of the product placement still maintained the dramatic context of the programme and thus respected the legal requirements. The product was used as an award for the hungry candidates and their jubilation upon opening the box was part of the action of the programme. Likewise, the close-ups of the candidates consuming the chocolate bar with relish did not yet constitute a breach of the ban of undue prominence.

• The point beyond which the product placement became undue and therefore inadmissible, however, was reached by the later following statements of individual candidates relating to the product in the interview cabin ("jungle phone"). These statements exclusively refer to the product although the action has already been completed. In case there is an excessive oral appraisal of the product by participants of the programme without any further action taking place, the product is considered as being accentuated "unduly prominently" and the product placement is therefore inadmissible. At this point of the programme, the actual action had been completed. According to the decision, the advertising purpose dominated in these scenes, in particular because of the individual statements of the participants.

RTL has the opportunity to appeal this decision before the Lower Saxony Upper Administrative Court in Lüneburg.

• Press release NLM (DE)

Source: EPRA Secretariat