Citation
Hovda, J.S. (2014), "Catching the attention of young consumers in Norway – a short guide to compliance with the strict regulations on marketing directed towards children", Young Consumers, Vol. 15 No. 1. https://doi.org/10.1108/YC-02-2014-00425
Publisher
:Emerald Group Publishing Limited
Catching the attention of young consumers in Norway – a short guide to compliance with the strict regulations on marketing directed towards children
Article Type: Legal briefing From: Young Consumers, Volume 15, Issue 1
General marketing
Marketing directed towards children is in general permitted in Norway, but as our short guide will tell you it is rather strictly regulated and some forms of advertising are not permitted.
The Marketing Control Act and the Regulations on Unfair Commercial Practices constitutes the main legislation for general marketing in Norway. The Act was amended in 2009 to implement the Unfair Commercial Practice Directive (2005/29/EC) into Norwegian law, and the Regulations consists of an direct translation of the Annex I of the UCP directive, the so-called black list of commercial practices that is deemed unfair and illegal.
Even though the Norwegian legislation is based on the UCP directive, the Marketing Control Act goes further than the UCP directive in protecting children.
The Marketing Control Act defines children as person less than 18 years of age. In the assessment of whether a commercial practice contravenes the provisions in the Marketing Control Act, account shall be taken of age, development and other factors that make children particularly vulnerable. The assessment is stricter when the marketing is aimed at younger children.
The Marketing Control Act has two prohibitions on marketing towards children, namely the prohibition against direct exhortations to purchase or to persuade the parents to purchase and the prohibition against unfair commercial practices. Both provisions are discretionary and it must be assessed on a case-to-case basis whether a marketing practice contravenes any of these provisions.
The Norwegian Consumer Ombudsman (NCO) is the supervising administrative body for the Marketing Control Act. The NCOs work is based on a negotiation model, and for traders who infringe the prohibition against unfair commercial practices towards children the NCO seek to reach a voluntary settlement to terminate the practice before considering any penalties.
It is however important to note that the NCO is not obliged to seek a voluntary settlement were a trader has infringed the prohibition against direct exhortations to children to purchase or to persuade their parents to purchase. Infringement of this prohibition will lead to enforcement penalties, and it is therefore especially important to conduct a thorough assessment on whether a planned commercial activity will constitute an infringement of this prohibition.
Direct exhortations to purchase
It is prohibited to include in advertising direct exhortations to children to purchase advertised products or to persuade their parents or other adults to buy the advertised products for them. Advertising towards children containing phrases like "purchase here", "purchase now", "tell your parents to get" will normally constitute an direct exhortation.
There are a lot of other phrases that may be used that are less direct and it must be assessed on an individual basis, taking into account the advertisement as a whole, if it constitutes a direct exhortation to purchase. This is for example invitations to purchase online games and In-App games for children containing phrases like "upgrade now", which has been deemed an infringement of the corresponding provision in Sweden, but has yet to be challenged in Norway.
The method of communication is relevant in the assessment of whether the invitation to purchase is direct. Advertising directed by individual communication to a child by e-mail, telephone or SMS is generally considered a direct exhortation to purchase. Advertising in magazines for children, on posters, or on the back of a cinema ticket are examples of less direct methods of communication were the advertisement as a whole must be assessed to establish whether it constitutes a direct exhortation to purchase.
Unfair commercial practices
Unfair commercial practices towards children are prohibited. In the assessment of whether a commercial practice is unfair emphasis shall be given to whether the commercial practice is directed especially at children. Even if the commercial practice is not directed especially at children, emphasis shall be given to whether the practice, by virtue of its nature or the product, is likely to influence children, and to whether the trader can be expected to foresee the particular vulnerability of children to the practice.
Including any of the following elements in a marketing directed towards children may deem the marketing an unfair commercial practice:
Encourage breaches of the law, dangerous behaviour or breaches of ordinary safety norms.
Play on social insecurity, a bad conscience or poor self-confidence.
Employ frightening means or is likely to cause fear or anxiety.
Employ aggressive means like violence, sexuality or drugs.
TV-advertising
The Broadcasting Act and Regulations regulates advertising towards children in broadcasting and in on-demand audiovisual media services stricter than the Marketing Control Act does for general marketing. The Broadcasting Act and Regulations does however not apply to broadcasters transferring the signal from outside Norway and on-demand service providers established outside Norway, as the regulations have incorporated the AMS-directive article 3 on freedom of reception and retransmisson from other states.
The Broadcasting Act and Regulations prohibits all marketing directed towards children in television and on-demand services for broadcasters and on-demand service providers that falls under the scope of the regulations. In the assessment of whether advertising is specifically directed at children, importance shall be attached, inter alia, to the following factors:
Whether the advertisement concerns a product or a service of particular interest to children.
The time at which the advertisement is broadcast.
Whether children under the age of 13 are participants.
Whether animation or other form of presentation, which particularly appeals to children, is used.
The content and form of the programme.
Whether children under the age of 13 are participants.
When the programme is broadcast.
Who are potential viewers in relation to the time of broadcast.
Actual viewers.
The use of language in the programme.
Unhealthy food
There is a great focus from the Government regarding the regulation on advertising of unhealthy food and drinks towards children. For now, this type of advertising is self-regulated by the food industry that has set up Guidelines on how to conduct advertising of unhealthy food and drinks towards children.
Whether the system of self-regulation has had sufficiently effect will be revised by the Government in 2015, when it will be considered to set in force a new and much stricter legislation specifically aimed at marketing of unhealthy food and drinks towards children.
Advertisers fearing this stricter legislation are therefore especially careful when advertising unhealthy food towards children and are generally complying with the food industry Guidelines. According to these Guidelines children are defined as persons less than 13 years of age. Further the design of the packaging is not itself considered marketing of the product.
However the Guidelines reflect that special consideration to the childrens susceptibility and lack of experience should be given when considering promotional gifts, online games and promotions in connection to unhealthy food.
Alcohol, gambling, guns and tobacco
There is an absolute prohibition against advertising for alcohol, guns and tobacco in Norway. Also, gambling that is not licensed by the Norwegian Gaming Authority may not be advertised.
Jenny Sveen Hovda and Bente Holmvang
Jenny Sveen Hovda and Bente Holmvang are both based at Bull & Co Advokatfirma AS, Oslo, Norway.