In this article we look at some of the key legal and regulatory obligations for companies when advertising and marketing products to children and offer some tips to assist in complying with these obligations.
What are some of the key legal and regulatory obligations?
Australia currently has in place a set of regulatory and self-regulatory arrangements governing the promotion of products to children, the aim of which is to ensure that advertisers and marketers develop and maintain a high sense of social responsibility in such advertising and marketing.
For all forms of media, including television, radio, newspaper, magazine, cinema, outdoor signage, internet and e-mail, there are several industry codes in place relating to advertising and marketing to children. These include:
- Australian Association of National Advertisers (AANA) Code of Ethics – the object of this code is to ensure that advertisements are legal, decent, honest and truthful and have been prepared with a sense of obligation to the consumer and society and a fair sense of responsibility to competitors;
- AANA Code for Advertising and Marketing Communications to Children – the object of this code is to ensure advertisers and marketers develop and maintain the highest level of social responsibility in advertising to children.
Advertising for food and beverage products to children under 14 is also subject to the:
- AANA Food and Beverage Advertising and Marketing Communications Code – the object of this code is to ensure that advertisers and marketers develop and maintain a high sense of social responsibility in advertising and marketing food and beverage products; and
- Responsible Children’s Marketing Initiative (RCMI) – for those companies which are signatories to the RCMI, the object of this initiative is to provide a framework for food and beverage companies, to help companies promote healthy dietary choices and lifestyles to children.
Advertising to children on television is also regulated by:
- the Australian Communications and Media Authority (ACMA), a statutory body which administers the Children’s Television Standards 2009 – which sets out the classification requirements for programs for children shown on television; and
- Free TV Australia which administers the Commercial Television Industry Code of Practice – which prohibits certain types of advertising in specified classification bands.
Other laws that may apply
There are also prohibitions in the Competition and Consumer Act 2010 (Cth) (CCA) which apply generally and to advertising in particular. They include prohibitions on misleading and deceptive conduct and on making false representations. For example, advertising that goods are of a particular standard, quality, value, grade, composition, style or model or have a particular benefit, feature, performance characteristic, history or a particular previous use, and that goods originate from a particular country or place, when they do not, will breach these prohibitions.
There are also product specific laws and regulations for the labelling of products, including, the Food Standards Australia and New Zealand Code (FSANZ Code) which prescribes mandatory labelling requirements for food and beverages. Certain products may also be the subject of mandatory safety and information standards which require specified goods to comply with particular packaging and labelling information, for example, toys.
Failure by a company to comply with these obligations may result in enforcement action by the relevant regulatory authority, and can include court proceedings, penalties and adverse publicity by the relevant authority as well as an expensive requirement to withdraw or remove the advertising and marketing.
Tips to help you comply with your legal and regulatory obligations in advertising and marketing to children
- Consider your audience – ensure that your messaging is not misleading or deceptive and it is presented in a way that is clearly understood by children
- Ensure that any disclaimers, qualifiers or asterisked or footnoted information is prominently displayed and clearly explained to children
- Avoid sexual imagery or statements which state or imply that ownership of a particular product will enhance their sexuality
- Avoid portraying images or events in a way that is frightening or distressing to children or demeaning to a person or group on the basis of ethnicity, nationality, race, gender, age, sexual preference, religion or mental or physical disability
- Avoid portraying images or events which depict unsafe uses of a product or unsafe situations which may encourage children to engage in dangerous activities or create an unrealistic impression in the minds of children or their parents or carers about safety
Use of Popular Personalities
- If using popular personalities or celebrities in your advertising in relation to a product, ensure that you are distinguishing between the commercial promotions and the program or editorial content
- If mentioning prices in advertising or marketing, accurately represent the price and avoid use of the words “only” or “just” in relation to a price and avoid implying that the product is within the reach of every family budget
- Ensure that any advertising or marketing materials do not undermine the authority, responsibility or judgment of parents or carers, nor must such material urge a child’s parents or carers to buy a product for them
- Do not draw any association with companies that supply alcoholic products or relate in any way to alcoholic products
- If including a competition in your advertising or marketing, ensure that you contain a summary of the rules for the competition and clearly disclose the closing date and any age restrictions
Additional tips for Food and Beverage Advertising to Children
- Do not undermine the importance of a healthy or active lifestyle and avoid encouraging excess consumption – this can be done through the representation of product or product portion sizes in the setting portrayed
- If making reference to the nutritional value or health benefits of a product, ensure that such references are accurate and appropriate to the level of understanding of the child and keep documentation to substantiate any claims you make on your products
- Ensure that any advertising or marketing does not improperly exploit children’s imaginations in a way which might reasonably be regarded as being based upon an intent to encourage those children to consume what would be considered as excessive quantities of that food
- Do not state or imply that possession or use of a particular food or beverage product will afford physical, social or psychological advantage over other children
- If you are advertising particular features of a product, ensure that those features are an integral element of that product being offered.
By Amy Cowper