Best seller

Philip Circus, the director of legal affairs at the Institute of Sales Promotion (ISP), describes his career in law as “eccentric”. After being called to the Bar in 1975 he worked at the Confederation of British Industry (CBI) for two years. His stint at the CBI provided him with the platform from which he launched his 25-year career in the advertising and sales promotion industry. During this time he has also held several positions, including chairman of the CBI’s Consumer Affair’s Committee; membership of the Government’s working parties on prices, credit and environmental labelling; and membership of the National Consumer Council and the Independent Television Commission’s (ITC) Advertising Advisory Committee. Circus joined the ISP in 1990 to head up the legal function.

The ISP is a trade association that exists to push sales promotion to both industry and the regulatory authorities. It aims to protect the rights of organisations that use sales promotion as part of their sales and marketing activity through best practice and self-regulation, in line with the British Codes of Advertising and Sales Promotion.

In broad terms, sales promotion is concerned with the short-term shifting of goods and services. It can range from something as simple as a free toy inside a cereal box to a pub’s happy hour, from a prize draw to win concert tickets to token collection schemes. Circus believes promotional marketing is now being taken a lot more seriously and says that advertising agencies are increasingly using this technique.

The ISP legal department aims to provide members with expert advice on sales promotions insofar as they relate to UK laws and industry codes. Unlike most other legal departments, Circus provides an advisory service to members of the ISP in exchange for a fee. Consequently, Circus compares himself with a private practice lawyer.

“The difference between my job and a normal in-house lawyer is that most of my advice is projected outwards rather than inwards,” he explains. “The legal advisory service is the most important membership benefit that the ISP provides. And it’s arguable that it’s the best membership benefit provided by any trade association in the marketing field. It’s therefore truly a flagship of the ISP.”

The department handles around 2,000 enquiries a year and works with 85 per cent of the top sales promotion agencies and many promoters, including the likes of Heinz, Coca-Cola, Kellogg’s, Nokia, Procter & Gamble and Land Rover, on all areas of advertising and marketing law. For example, can a company operate a prize draw legally, or use someone else’s trademark on a promotion? Circus deals with all sorts of weird and wonderful pieces of legislation, including the Trading Stamps Act 1964 and the Mock Auctions Act 1961, as well as advising on intellectual property and consumer law issues.

Additionally, where appropriate, he also advises members on any issues arising from mechanical, budgetary, logistical or administrative aspects of a promotion.

There are no other lawyers in the ISP’s legal department, although Circus works with a panel of very experienced sales promotions practitioners. Unlike other in-house departments, it is an income generator for the ISP. “The ISP has a unique service, which is frankly impossible for our main competitors to compete with, especially on price,” says Circus.

Occasionally, Circus seeks advice from external lawyers, for example on issues concerning HR, but he tends to instruct small firms run by lawyers that were at law school with him. The department’s annual legal spend is only £5,000, which, according to Circus, is significantly less than the amount paid to lobbyists. Circus adds that a lot of private practice lawyers want to get closer to the ISP, but that this is mostly in relation to non-advisory work – speaking at conferences, for example.

Last year Circus advised Consignia in relation to a Valentine’s Day promotion aimed at encouraging people to post greeting cards instead of delivering them in person. Consignia offered two Jaguar sports cars to those people who drew red hearts on the backs of envelopes. This was achieved by putting the names and addresses of recipients into a free draw. Circus explains that this raised a very interesting issue under the Lotteries and Amusements Act 1976 as to whether or not this constituted an illegal lottery. The 1976 act unfortunately does not state the meaning of lottery, so in his advice to Consignia,Circus relied on Lord Widgery’s judgment in Readers Digest.

Williams (1976), in which the then Lord Chief Justice set out the three components of a lottery: a distribution (ie a prize), chance and a payment or contribution.

Circus concluded that, although the Consignia promotion contained a prize and an element of chance, there was no payment by the participants. He argues that the only payments were made by the senders for postage stamps.

Circus is currently advising members on an ongoing dispute with the British Olympic Association (BOA) relating to certain rights that the organisation is given under The Olympic Symbol etc (Protection) Act 1995. The BOA argues that the 1995 act prevents organisations from offering tickets to the Olympic Games without its permission. The ISP rejects this argument and believes that the BOA’s interpretation of the legislation is too wide. “To safeguard their licensing and sponsorship activities, the BOA vastly overstates the rights that the legislation gives them,” says Circus. “But from the position of the ISP, we have to protect our members against a wholly unreasonable interpretation of the act by the BOA.”

Circus says that one way in which this dispute might be resolved is if both parties apply to the court for a declaration of their rights under the 1995 act. He will suggest this to the BOA, but suspects that the idea will be rejected. Although it is, he says, “a way of putting the BOA members on the back foot”.

In addition to advising members on the legal implications of a sales promotion, Circus is also involved in public affairs and lobbying. He represents the ISP on the Committee of Advertising Practice, which drafts the codes that are administered by the Advertising Standards Authority.

Currently, he is in discussions with the European Commission on the draft regulation on sales promotion and the draft framework directive on unfair trade practices. In the UK he is lobbying the Government in relation to certain provisions of the Licensing Bill that deal with pub happy hours and their knock-on effects, particularly in relation to binge drinking.

Circus combines his work for the ISP with private client work through Lawmark, the marketing law advisory service, which was set up in 1980. As a principal in Lawmark, his clients have included Interflora, Guinness, the London Marathon, Hoover, the Orient Express and the Millennium Dome, to name but a few. He also advises a number of advertising, sales promotion and public relations agencies.

“Lawmark’s a rather strange variation of private practice and provides me with an additional income,” he says. “This makes it possible for me to work for the ISP.”
Philip Circus
Director of legal affairs
Institute of Sales Promotion

Statistics
Organisation Institute of Sales Promotion
Sector Marketing/Trade association
Turnover £1m per annum
Membership 22
Employees Six, plus a number of external consultants
Legal capability One, plus four panel members
Director of legal affairs Philip Circus
Reporting to Director General Edwin Mutton
Main law firms None