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Circular
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Ottawa, 8 August 1988
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CIRCULAR No. 350, TO LICENSEES OF ALL TELEVISION BROADCASTING UNDERTAKINGS
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It has come to the Commission's attention that there is programming broadcast by television licensees which appears to be in violation of the limitations on advertising set out in the Television Broadcasting Regulations, 1987. These regulations generally restrict advertising content to 12 minutes in each clock hour of the broadcast day. Section 2 of the regulations defines a "commercial message" as follows:
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"commercial message" means an advertisement intended to sell or promote goods, services, natural resources or activities and includes an advertisement that mentions or displays in a list of prizes the name of the person selling or promoting these goods, services, natural resources or activities.
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As commonly understood, an "infomercial" is the combining of entertainment and information together with the selling and promoting of goods or services into a virtually indistinguishable whole. An "infomercial" may also involve the promotion of products mentioned in distinct commercial breaks in the programming. An "infomercial" therefore resembles a program but, in reality, constitutes a long commercial message for a given product or service. In some cases, programming is provided to television stations complete with advertising breaks. While "infomercials" may address any topic, the programming noted by the Commission is frequently related to the subjects of real estate, financial advice, travel, and health.
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There are two types of apparent infringement of the regulations which have come to the attention of the Commission with respect to "infomercials". In the first, the number of minutes of direct selling or promoting exceeds the 12 minutes per hour permitted by the regulations. One example is real estate programming in which the description of the properties for sale clearly exceeds the advertising limits permitted by the regulations. Another example is real estate programming in which, during the "program" itself - typically a discussion about a related topic such as the availability of mortgages - there are elements which directly serve to sell or promote goods or services.
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In the second type of infringement, the commercial breaks are clearly within the required limit of 12 minutes per hour and the balance of the programming contains no explicit messages concerning the sale or promotion of goods or services, but the subject matter, by the manner of its presentation and its relationship to the goods or service advertised during the commercial breaks, constitutes a form of advertising. An example of this type of infringement is programming presenting a particular approach to achieving personal wealth, presented in the format of an information program and containing commercial breaks that indicate where the viewer can obtain further information. In such programming, the impact of the commercial breaks is significantly enhanced by the "program". The Commission would therefore consider such programming, either in whole or in large part, a "commercial message" as defined in the regulations.
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At the same time, the Commission is aware of certain restrictions in small markets where creative and other resources are limited. For example, programming relating to travel and involving representatives of a travel agency is quite acceptable as long as it does not promote the interests of a particular commercial enterprise or focus on the products or services described in the commercial breaks.
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The Commission is particularly concerned by syndicated programming in which the commercial breaks are related, directly or indirectly, to the body of the program.
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Defining a Commercial Message
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The Commission intends to continue to rely on its television licensees to classify "commercial messages" as defined in Section 2 of the Television Broadcasting Regulations, 1987. In order to provide further guidance to licensees and avoid complaints, the Commission has identified two criteria for use in determining the commercial content of a television program.
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1. An intention to sell or promote
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As set out in the definition in the regulations, an intention to sell or promote is an integral part of a "commercial message". In programming where there is an explicit advertising message, for example, a company logo or an image of a product for sale, this intention is self-evident. An intention to sell or promote, however, is also present in programming with no explicit messages but with indirect or implicit advertising outside of the recognizable commercial breaks.
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2. The Mix of Functions (selling or promoting, informing, entertaining)
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The mix among the information, entertainment, and sales or promotion elements of programming can be a factor in deciding whether, in whole or in part, that programming should be considered a commercial message. Only if the mix of functions is heavily weighted towards information and entertainment, with very incidental sales or promotion, would the programming not be considered, in whole or in large part, a commercial message.
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CRTC Procedures
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In analysing apparent "infomercials" the Commission will generally adhere to the following approach:
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1. Identification of any commercial breaks in programming of this nature, and their total duration.
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2. Analysis of the programming to determine if there is an intention to sell or promote a product or service, whether there exist a direct relation between the program nature and the commercial message or not.
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Fall 1988 Television Licence Renewal Hearings
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Many television licensees have applications for licence renewals scheduled for public hearings in the fall of 1988. The Commission wishes to advise these licensees that they should be prepared to demonstrate that the schedules proposed for the forthcoming licence term respect its policies and regulations as described above. While the Commission encourages licensees to use all available resources in order to broadcast programs of interest to consumers, it is of the view that consumers should be protected from disguised advertising messages and that all broadcasters should be subject to their same regulation with respect to advertising material. If licensees believe that some of the programs described in their licence renewal applications could be considered "infomercials", they should develop plans for alternative programming.
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Fernand Bélisle
Secretary General
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