Background
Summary of Council decision:
Two issues were investigated, of which one was Upheld and one was Not upheld.
Ad description
A Facebook page, a Facebook reel, a paid-for Facebook post, and a poster for JD Sports and their range of Nike Air Max clothing:
a. The cover photo of the JD Sports Facebook page, posted on 4 March 2024, featured three images in a row. One image showed three stationary motorcycle riders wearing Nike Air Max clothing. Another showed a rider performing a wheelie on a motorcycle. A third showed a close-up of a Nike Air Max shoe that a rider was wearing while their foot rested on a motorcycle peg.
b. The Facebook reel, posted on 4 March 2024, featured shots of motorcycle and quad bike riders driving in an urban environment, while drifting and performing wheelies. The ad rapidly cut between shots of the driving and close-ups of the Nike Air Max clothing and shoes that the riders were wearing, including showing the shoes moving along the ground while the riders were driving. Superimposed text on the reel and in its caption stated, “*STUNTS PERFORMED BY PROFESSIONALS - DO NOT TRY AT HOME".
c. The paid-for Facebook ad, seen on 9 March 2024, showed a close-up of a Nike Air Max trainer that a rider had placed on their motorcycle’s peg.
d. A poster, seen on 12 March 2024, featured images of motorcycle and quad bike riders performing wheelies while wearing Nike Air Max clothing and shoes.
Issue
The ASA received 60 complaints, including from the British Motorcyclists Federation:
1. Some of the complainants challenged whether ads (a), (b) and (d) included illegal and irresponsible road usage.
2. Some of the complainants challenged whether the ads were irresponsible as they depicted motorcycle and quad bike riders wearing trainers and athletic wear rather than protective equipment.
Response
JD Sports Fashion plc (JD Sports) said the ad campaign ran from 4 to 26 March 2024 and showed footwear and apparel from the Nike Air Max range. They said the motorbikes were incidental, rather than central, to the ads, and explained that the imagery used was captured either within a warehouse space leased exclusively for the purpose of producing the ads, or on a closed road. They said a health and safety assessment, in consultation with the ads’ professional stunt riders, was conducted and the riders had confirmed that their motorcycles were road legal, albeit they did not feature number plates in the ads.
1. JD Sports said they did not consider that the ads depicted activities that broke the Highway Code, and that the focus of all the ads was on the clothing and footwear. They said that consumers would understand the images in ads (a) and (d) were staged for the purpose of advertising, and would not be encouraged to emulate the images simply because they were used within clothing and footwear advertising.
In their view the superimposed warning text in ad (b) would have discouraged consumers from copying the riding style shown, and highlighted that professional stunt riders showcased the footwear and apparel. They said it was unlikely that any viewer of the ad would consider it a real-life representation, due to the superimposed warning text.
BuildHollywood said ad (d) had been removed as part of their regular changeover cycle. They said the focus of the poster was on the footwear being modelled, that the ad did not feature anything that indicated it took place on a highway and that it could have been produced on a set or closed space.
2. JD Sports said the products advertised were not marketed as Personal Protective Equipment. They explained that, beyond a helmet, there was no legal obligation for motorcyclists to wear additional protective equipment. The clothing worn by the riders in the ads was therefore not in breach of any rule or recommendation in the Highway Code.
BuildHollywood said they understood the only legal requirements for motorcycle clothing applied to crash helmets, visors and goggles.
Assessment
1. Upheld
The CAP Code stated that marketing communications must not condone or encourage unsafe or irresponsible driving.The ASA acknowledged the road scenes had been filmed on closed public roads. However, we considered that would not have been apparent to viewers, as the roads shown were indistinguishable from open public roads. We understood motorcycles ridden on open public roads were required to display a number plate.
Also, Department for Transport (DfT) guidance stated that most quad bikes could not be used on public roads because they did not meet road safety standards. The motorcycles shown in the ads did not display number plates, and we had not seen evidence to show that the quad bikes met road safety standards. However, we considered the focus of the ads was on the riders’ clothes and viewers were unlikely to infer from the ads’ content any encouragement to depart from the law by using a non-plated motorcycle or a quad bike that did not meet appropriate standards on a public road.
Ads (a), (b) and (d) featured imagery of stationary and moving motorcycles and quad bikes, and included shots of their riders using them to perform stunts, such as wheelies and drifts. Ad (b) also included shots of a rider’s foot off a motorbike or quad bike peg and bouncing along the ground as the vehicle moved. We acknowledged that ad (b) stated “STUNTS PERFORMED BY PROFESSIONALS - DO NOT TRY AT HOME” throughout the ad.
However, we considered the manoeuvres depicted in ads (a), (b) and (d) would be unsafe and irresponsible if emulated on a public highway, and that the inclusion of warning text in ad (b) was insufficient to guard against the potential for the actions to be emulated.
The ads suggested that the manoeuvres were acceptable for a public road, which was where they seemed to take place. We concluded that in doing so the ads condoned unsafe or irresponsible driving.On that point, ads (a), (b) and (d) breached CAP Code (Edition 12) rules 1.3 (Social responsibility) and 19.2 (Motoring).
2. Not upheld
We understood that in the UK the only legally required protective equipment for operating a motorcycle was a helmet (subject to an exemption for a follower of the Sikh religion wearing a turban while operating a motorcycle). DfT Guidance recommended the use of specialised motorcycle gear when riding a motorcycle. In relation to quad bikes, it was a legal requirement to wear a protective helmet in Northern Ireland, although elsewhere in the UK it was not. The Highway Code recommended that they should be worn. The Highway Code did not prescribe further protective equipment when operating a motorcycle or quad bike.The riders in the ads all wore protective helmets, and as such the portrayal of action in the ads complied with the legal requirements for clothing and footwear when riding a motorcycle or quad bike. We did not consider the ads were irresponsible by featuring riders without additional protective cover.
On that point, we investigated the ads under CAP Code (Edition 12) rule 1.3 (Social responsibility), but did not find them in breach.
Action
Ads (a), (b) and (d) must not appear again in the form complained of. We told JD Sports Fashion plc to ensure that future advertising did not condone or encourage unsafe driving practices.
