Emerald Group Publishing Limited
Copyright © 2008, Emerald Group Publishing Limited
Advertising: getting it right for Kiwi kids
Article Type: Legal briefing From: Young Consumers, Volume 9, Issue 2.
When it comes to advertising to children, New Zealand has adopted the approach expounded in the African proverb “it takes a village to raise a child”. The area is governed not by one body alone but a variety of entities ranging from the government, to self-regulating bodies and industry groups. As a result advertisers must be aware of and heed a multiplicity of laws and rules of practice. Here we set out a brief overview of what is involved when advertising to kiwi kids.
Consumer protection legislation
Fair Trading Act 1986
The main consumer protection legislation in New Zealand is the Fair Trading Act 1986 (the “FTA”). In essence, the FTA prohibits anyone engaging in conduct which is or is likely to “mislead or deceive”. In addition, it prohibits anyone from making false or misleading representations in connection with the supply or possible supply of goods or services.
This means that the FTA will apply to all advertising campaigns including those aimed at children. That is not to say that all adverts will be judged in the same way. A court will take a subjective view of each advert; it will consider and assess each advert on its own merits and will take into account its content, audience, the media in which it appeared and the product in question.
To fall foul of the FTA is to run the risk of both civil and criminal sanctions. The remedies available to a court are very wide indeed. In a recent New Zealand case of misleading advertising, Glaxo Smith Kline was not only fined NZ$227,500 after pleading guilty to 15 criminal charges, they were also ordered to undertake a nationwide campaign of corrective advertising, on television and in the main newspapers. The fines involved may not appear particularly high however, when one considers that this case made international headlines having been brought to the attention of the Commerce Commission by two 14 year old girls (who discovered as part of a school science experiment that the ready to drink “Ribena” product contained no vitamin C at all), the damage to Glaxo Smith Kline’s brand “Ribena” far outweighed the costs of ensuring compliance with the FTA.
Gambling Act 2003
Most would not anticipate that the Gambling Act 2003 (the “act”) would be relevant when considering advertising to children. The Act however defines “gambling” in such a way that it will capture amongst other things promotions which require an individual to “pay or stake consideration, directly or indirectly, on the outcome of something seeking to win money [or money’s worth] when the outcome depends wholly or partly on chance … ”. The act makes such activities illegal unless they are specifically authorized. In practice the definition means that all promotions in the form of prize draws, instant wins or lotteries, must be carefully scrutinized to ensure that they are not prohibited. As a general guide if a promotion does not require the payment of anything more than the basic cost of postal or phone entry (or in the case of a sales promotion the usual price of the product) and is skill based, the promotion will not be considered gambling.
Experience has shown an increased use of the internet generally but specifically in relation to promotions aimed at children. To keep pace with technology and in particular the internet, the Act has also introduced a further prohibition on “remote interactive gambling”. This includes “gambling by a person at a distance by interaction through a communication device”. It is particularly important to be aware of this aspect of the Act as it may prohibit an otherwise authorized promotion such as an instant win or prize competition, if such a promotion is operated over the internet. For example an on-pack instant win promotion which would, in the ordinary course of events, be an authorized gambling activity would be considered “remote interactive gambling” if on opening the product the “winner” was presented with a code which was required to be loaded on the internet to find out what had in fact been won. It would depend on the exact nature of the promotional mechanism, but it may be possible to avoid issues such as this if the internet is used simply as a fulfillment mechanism and not a means of gambling.
Both the Advertising Standards Authority (the “ASA”) and the Broadcasting Standards Authority (the “BSA”) have worked together to design a self-regulating regime for advertising. They seek to maintain at all times and in all media proper and acceptable standards of advertising. Their overarching obligation is to ensure that advertising is not “misleading and deceptive either by statement or by implication” and they have together produced a set of rules specifically for the advertising of products and services to children.
The ASA and BSA work closely together and their regime is based on the understanding that children are entitled to certain rights and protections pursuant to the United Nation’s Convention on the Rights of Children (the “Convention”). The Convention recognizes that a child has the right of freedom of expression. That right is also said to include the freedom to seek, receive and impart information and ideas of all kinds. Children therefore have the right to receive a variety of information including advertising. This however is fettered by Article 17(e) which requires that there are “appropriate guidelines for the protection of the child from information and material injurious to his or her well-being.” Out of this has grown the Code of Advertising to Children (the “Code”) and the BSA’s Childrens Television Policies, which is implemented by the ASA.
The Code defines children as persons below the age of 14. This is a helpful directive, however promoters must remember that specific types of advertising may have their own age criteria. For example; tobacco liquor and the promotion of credit facilities.
More specifically, (although not exhaustively) the Code states that advertisements should not:
portray violence, undue aggression, or menacing or horrific elements likely to disturb children;
encourage anti-social behavior;
be urging kids to ask parents to buy particular products;
suggest to children any feeling of inferiority for not having the particular product;
show children in unsafe acts except in relation to safety messages;
depict toy weapons;
encourage kids to participate in gaming or gambling;
undermine the role of parents in educating children;
represent persons, characters or groups who have achieved celebrity status in advertising to promote food or drink in such a way so as to undermine a healthy diet;
abuse the trust of or lack of knowledge of children;
fail to take account of the knowledge, sophistication and maturity of its audience;
fail to make clear where products require assembly or addition items such as batteries;
encourage inappropriate purchase or use including excessive consumption; and
actively encourage children to drink or eat treat food in excess or in substitution for main meals.
Additionally the BSA has put in place specific rules relating to the time and dates when television advertising is prohibited, or restricted, the use of pay per call phone numbers and how and what can be sponsored and/or advertised on television.
Although these regimes are self-regulating, most if not all promoters strive to comply with the Code. All complaints and their respective decisions are published by the ASA and this in itself is a powerful deterrent. The decisions made by the ASA and the basis for them are periodically questioned. In a recent case, for example, Marc Ellis, former All Black (New Zealand’s national rugby team) turned entrepreneur questioned why a cartoon advertisement for his juice company “Charlies” which showed himself and a friend peering over a fence to see the neighbour sunbathing naked had been held to be offensive. He questioned why such an advertisement (shown before the children’s watershed) was offensive to children when it appeared immediately after the 6pm news which showed “bloodied bodies in Baghdad, naked body-painting … and security camera footage of a school boy being kicked … ” The answer is - the difference (perceived or otherwise) between “advertising” and the clinical presentation of news.
For some time now, various pressure groups have been lobbying against the freedom to market and advertise various food and drink products to children. Despite the fact that both the ASA and BSA have produced specific guidelines in this area the various pressure groups are convinced that the rising numbers of obese children requires more targeted and specific legislation.
The Public Health Bill was introduced into Parliament in late 2007 and although it is designed to update existing public health legislation it could, if passed in its current form, make significant in-roads on the freedom of food and drinks manufacturers to advertise their products. The government, for example, would be able to make regulations at any time to reduce, or assist in reducing the risk factors associated with or related to non-communicable diseases. Obesity clearly falls within this category and suggestions to date have included specifying how supermarkets place healthy/unhealthy food and a total prohibition on advertising junk food to children on television.
This however is still at Bill stage, and for the time being at least, the key to all advertising aimed at children in New Zealand will continue to be ensuring that:
it is fair, clear and not misleading;
your promotion is not an illegal gambling activity; and
you are not promoting tobacco, liquor or credit to a child.
Erich BachmannManaging Partner, Hesketh Henry, Auckland, New Zealand
Liesl KnoxSenior Associate, Hesketh Henry, Auckland, New Zealand
Commerce Commission vs. GlaxoSmithKlien; Release No. 112 27 March 2007.8.30 p.m. - prior to which no programming unsuitable for children may be shown.