Blog: Experiential marketing: playing by the rules

There are a number of rules, regulations and laws covering experiential marketing. James Rix, founder of StreetPR, gives the lowdown on five important areas to discuss with your experiential agency.

James Rix: rules and regulations for experiential marketing
James Rix: rules and regulations for experiential marketing

Face-to-face marketing is an incredibly powerful tool, and there has been an explosion in the number of campaigns using brand ambassadors, handing out samples, leaflets and coupons on the streets, at busy travel hubs, in shopping centres and at festivals and music and sporting events.

Unfortunately, due to recent changes in the law, there are brand ambassadors out there who could land the brands using them in court or even in jail. That’s because some agencies either don’t know or deliberately aren’t following the rules, regulations and laws that cover experiential marketing. We’ve put together a checklist of the five most important things you must discuss with your experiential agency. Otherwise, you could be facing questions from thecouncil, the police, Her Majesty’s Revenue and Customs or the Home Office.

How are brand ambassadors being paid?

When you hire an agency to run a campaign for you, they will quote you an hourly rate for brand ambassadors. If it sounds too low to be true, it probably is. Brand ambassadors can no longer be paid as self-employed, because HMRC says they are under ‘supervision, direction or control’. Even if they are models or dancers, as soon as they put on any branded clothing to represent a brand – the yare no longer self-employed. They are told when to work, where to work, how long for, what to do and how to do it, so they are employees. That means tax and National Insurance has to be deducted at source.

Employees must be paid either via an agency’s own payroll system or through an HMRC-certified payroll provider such as ePayMe.co.uk, which is one of the biggest. Unfortunately, not all agencies follow these rules – we’ve even had people quit because other agencies aren’t deducting tax. However, these agencies and their clients could be in for a rude shock, as HMRC could hand them a bill for unpaid back taxes plus punitive fines. If an agency can’t pay and goes belly up, HMRC may come after the client brand instead.

Have staff got work permits?

The recent case involving upmarket burger chain Byron should have made any company that hires temporary workers worried. Byron had no idea that some of its workers had got their jobs by using what were apparently "sophisticated forgeries" of legal documents. In an industry like ours, where we may need to find large numbers of staff at short notice (we had 24 hours to find 30 staff for a major campaign last week), it may be tempting to accept people’s word that they have the right to work in the UK without question.

But don’t risk it. Make sure everything is fully checked and documented. You can be fined an unlimited amount and sent to jail for up to five years "if you know or should have known" (the government’s words) that you have employed someone who doesn’t have the right to work in the UK.

Don’t poison the punters

If you’re a food and drink marketer, killing a customer with a dodgy sample will also kill your brand. If you’re using brand ambassadors to sample food and drink products, then you must employ promotional staff with a knowledge of food safety rules – demand to see the relevant up-to-date paperwork.Your whole logistics chain must be geared up for food and drink sampling as well – transport, storage, preparation and distribution must be designed to ensure people don’t get sick. Don’t forget allergies. If a consumer says they are allergic to something and it is unclear whether it’s in the product, then brand ambassadors can’t give it to them.

Be incredibly careful when sampling food and drink to children, which for safety’s sake means anyone who looks like they could be under 16. Brand ambassadors should get consent from a parent or responsible adult before handing out any food and drink samples to children.

You can’t park that here...

Experiential activity must not risk the health and safety of the consumers your staff interact with, passers-by or your own employees. If you are working with props, tables, displays or vehicles and trailer rigs, the rules are the same: they have to be safe to use and safe to be around.You can’t block public highways without permission, whether it’s with a stand, a truck or just boxes. If you do, and a member of the public hurts themselves because you’ve blocked the road or the pavement, you are going to be in a world of trouble.

You may also need space to store items like free samples or marketing materials where they don’t pose any risk to people. If you are on private land – a supermarket or shopping centre car park, or an event venue – you still have to follow health and safety rules, and the venue owner may have additional requirements. Vehicles and heavy equipment should only be moved and used by suitably qualified staff, must be regularly maintained and must have the required safety certificates.You also need insurance – ours covers us for up to £10 million, which is what the bigger venues we run activations in demand.

Have you factored in logistics?

If you want to hand out samples or leaflets or set up a stand or rig on private property, then you need the landowner’s permission. Similar rules apply to shopping centres, entertainment venues and sports arenas and supermarkets – in fact, any space which is ‘owned’ by someone. You even need permission to hand out leaflets in a muddy field where there’s a festival going on. It’s not just any old field: it’s somebody’s field. And if you thought the streets of London were paved with gold for experiential agencies, think again. You will need to get permission to hand out samples or leaflets in public spaces, such as the streets of London’s West End, too.Many smaller agencies tend to agree to sampling campaigns for which they have the staff but the moment any samples need to be couriered, stored or distributed can often lead to panic as they don’t foresee these things or see the bigger picture. A good campaign is about more than just having good staff – it takes proper planning and execution from the outset.

Comment below to let us know what you think.

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