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Emerald Group Publishing Limited
Copyright © 2009, Emerald Group Publishing Limited
Child’s play? Advertising to children in Canada
Article Type: Legal briefing From: Young Consumers, Volume 10, Issue 3
Catherine Bate and , Wendy ReedHeenan Blaikie LLP, Toronto, Canada.
In Canada, advertising to children is governed by a patchwork of federal and provincial regulations, and self-regulatory codes and guidelines. How to define a child, as well as what restrictions might apply when adverting to a child depends, in part, upon: the medium used; the product being advertised; the geographic region for which the ad is intended; or the industry group membership of the advertiser. This paper canvasses children’s advertising in Canada, paying particular attention to broadcast advertising (which faces the strictest restrictions of any media in Canada), advertising food to kids, and the general prohibition against advertising to children in the province of Quebec. We conclude with a discussion of other general considerations, including issues surrounding the management of personal information of children and teens.
1 The medium: broadcast
Broadcast advertising is the most extensively regulated form of advertising to children in Canada. Interestingly enough, the requirements stem from conditions imposed on broadcasters, rather than on the advertisers directly. Compliance with the Broadcast Code for Advertising to Children (the “Broadcast Code”), a self-regulatory code administered by Advertising Standards Canada (ASC), is a condition of license for broadcasters. All broadcast advertising directed at children under 12 is therefore pre-cleared for compliance with the Code by ASC’s Children’s Clearance Committee.
The Broadcast Code applies to any paid message that is carried in, or immediately adjacent to, children’s programming, or messages deemed to be directed towards children, regardless of the programming during which it is aired. The Broadcast Code is intended to address the special qualities of children that make them particularly vulnerable to certain types of advertising, and in particular, commercials that take advantage of a child’s inability to distinguish between fantasy and reality.
While the full Broadcast Code should be consulted prior to preparing children’s advertising, some key provisions include:
Factual presentation. The presentation of a product must not exaggerate characteristics such as speed, size, color or durability. The actual size of the product must be clearly established, for example, by showing the toy in a child’s hand. The results to be achieved in a construction, craft or modeling toy or kit must represent those achievable by an average child.
Product prohibitions. Products not intended for use by children include those specifically prohibited by federal or provincial law (e.g. alcohol, tobacco, and drugs and natural health products (excluding children’s fluoride toothpaste)).
Avoiding undue pressure. Children’s advertising must not directly urge purchase, or urge a child to as a parent to make a purchase or inquiry. When promoting premiums or contests, the product must receive at least equal emphasis as the premium or contest. Age restrictions for participating must be clearly communicated.
Scheduling. The same commercial, or more than one commercial promoting the same product, cannot be shown more than once per half-hour of children’s programming.
Promotion by characters. Puppets, persons and characters well-known to children may not be used for endorsements. This does not apply to characters created by an advertiser to promote its own products.
Price and purchase terms. Parts or accessories that might be thought to be part of the product, but that are sold at an additional cost, must be made clear in both audio and video. Cost must not be minimized through use of terms like “only” or “just”. When some assembly is required, you need to tell children that “it has to be put together”.
Comparison claims. Commercial messages cannot diminish the value of other products or services, and cannot make comparisons against the previous year’s model of the same toy or other children’s item.
Safety. Commercial messages must not portray people in unsafe acts or situations, or show products being used in a dangerous manner.
Social values. Children’s advertising must not encourage or portray values inconsistent with the moral, ethical or legal standards of contemporary Canadian society. It must not imply that possession or use of a product makes the owner superior, or that not having it would leave the child open to ridicule or contempt.
Most private broadcasters in Canada rely upon Telecaster Services of the Television Bureau of Canada (“Telecaster”) to clear advertising, such that it is not necessary for each station to vet advertising independently. Telecaster specifically requires that children’s advertising be approved by ASC under the Broadcast Code. The Canadian Broadcasting Corporation (the “CBC”), a Crown corporation, does not accept advertising in any kind of programming or websites it deems to be directed to children under 12 years of age, and products that appeal to children and require adult supervision may not be advertised adjacent to children’s programs.
2 The product: a focus on food
As noted above, certain products including alcohol, tobacco, and most drugs and natural health products, cannot be advertised to children. There are those who would wish to see a similar outright ban with respect to advertising food to children. To date, the regulation of advertising food and beverages is restricted to self-regulation, rather than legislative measures in Canada.
In 2007, the industry took self-regulatory action by introducing the Children’s Food and Beverage Advertising Initiative (the “Initiative”) in Canada. The Initiative is a voluntary program under which participating companies – including some of Canada’s leading food and beverage companies, such as General Mills Canada Corp., Hershey Canada Inc., PepsiCo Canada, and others – have committed to shift their advertising to children to an emphasis on “better-for-you” foods, on leading a healthy, active lifestyle, or have committed not to advertise to children under 12 at all. Under the Initiative, participants have agreed to:
devote at least 50 percent of advertising that is directed to children to healthy eating and healthy living;
incorporate only healthy dietary choices or healthy lifestyle messages in children’s interactive games;
reduce the use of third party licensed characters in association with food that does not meet the initiative’s criteria for health food or lifestyle options;
not seek to place food or beverage products in program content for media primarily directed to children; and
not advertise food or beverage products in elementary schools.
While the initiative is only binding on voluntary participants, guidelines have also been introduced under the Broadcast Code, regulating how food may be advertised to children in broadcast media by any advertiser. Specifically:
Advertisements representing mealtime should clearly and adequately depict the role of the product within the framework of a balanced diet, and snack foods are clearly presented as such, not as substitutes for meals.
Every “child-directed message” for a product or service should encourage responsible use of the advertised product or service with a view toward the healthy development of the child.
Advertising of food products should not discourage or disparage healthy lifestyle choices or the consumption of fruits or vegetables, or other foods recommended for increased consumption in Canada’s Food Guide to Healthy Eating, and Health Canada’s nutrition policies and recommendations applicable to children under 12.
The amount of food product featured in a “child-directed message” should not be excessive or more than would be reasonable to acquire, use or, where applicable, consume, by a person in the situation depicted.
If an advertisement depicts food being consumed by a person in the advertisement, or suggests that the food will be consumed, the quantity of food shown should not exceed the labeled serving size on the Nutrition Facts Panel (where no such serving size is applicable, the quantity of food shown should not exceed a single serving size that would be appropriate for consumption by a person of the age depicted).
3 Geographic region: Quebec
The Province of Quebec is the only province in Canada, and in fact the only jurisdiction in North America, in which commercial advertising directed at persons under 13 is prohibited (subject only to limited exceptions). The prohibition was upheld as a constitutional limit on freedom of speech by the Supreme Court of Canada (Irwin Toy Ltd v. Quebec (1989)).
Section 248 of Quebec’s Consumer Protection Act (the “CPA”) states:
Subject to what is provided in the regulations, no person may make use of commercial advertising directed at persons under thirteen years of age.
The CPA provides guidelines to help determine whether a given advertisement is “directed” at persons under 13. Section 249 provides that the “context of the presentation” is to be considered. In particular, one must look at:
the nature and intended purpose of the goods advertised;
the manner of presenting such advertisement; and
the time and place it is shown.
It is important to note that, under Section 249, even if an advertisement is contained in printed material (or aired during broadcast time) that is intended for persons 13 years of age and over, or both children under 13 as well as persons 13 years of age and over, it may still be considered to be directed to children.
To aid in determining whether a commercial ad is directed to children, the Application Guidelines published by the Board charged with administering the CPA, indicate that particular attention will be given to the following criteria (Application Guide for Sections 248 and 249, reprinted November 1996):
The use of persons with whom a child can identify, the undue use of children, the use of children’s voices, of heroes, of imaginary or fanciful creatures, and of animals.
Any particular emphatic use of the parent-child relationship or any other relationship involving dependence upon an adult (e.g. a teacher), resulting in an undue exploitation of these bonds.
The use of animated cartoons.
The use of music which particularly appeals to children.
Also, at the technical level, the use of such methods as spectacular sound and color, fast-cutting animation and repetition.
Finally, the CPA provides a broad definition of “to advertise” which, according to Section 252, means “to prepare, utilize, distribute, publish or broadcast an advertisement, or to cause it to be distributed, published or broadcast.” This includes advertising on the internet.
Regulations under the CPA set out three exceptions to the broad prohibition against advertising to children:
Ads in a magazine or insert directed at children that is for sale or inserted in a publication which is for sale and which is published no more than at intervals of three months.
Ads announcing a program or show directed at children.
Ads that are constituted by a store window, a display, a container, a wrapping or a label, or ads which appear in or on such locations.
Where one of the three exceptions does apply, the advertisements will still be subject to all the detailed restrictions set out in Section 91 of the Regulations (although for ads falling under the in-store exemption, only paragraphs a to g, j, k, o and p apply). Under Section 91, the advertisements may not:Recent enforcement activity under the prohibition has focused, not surprisingly, on advertising food to children. Of particular note, in January of 2009, Saputo Inc. pleaded guilty to multiple charges of advertising to children surrounding a 2007 campaign for Vachon snack cakes. The campaign featured a dancing guerilla named Igor, who according to the company was intended to promote physical activity to children. The campaign was advertised online and involved the dissemination of product and ad materials in daycare centers. In total fines totaling $44,000 were imposed for 22 charges.
4 Other considerations
In addition to the Broadcast Code, ASC also administers the Canadian Code of Advertising Standards (the “ASC Code”), a self-regulatory code that is applicable to advertising in all media. Clause 12 of the Code puts forward the general principle that advertising directed at children “must not exploit their credulity, lack of experience or their sense of loyalty, and must not present information or illustrations that might result in their physical, emotional or moral harm.”
This concern about the naïveté of children under 13 is also reflected in the Canadian Marketing Association’s Code of Ethics and Standards of Practice (the “CMA Code”). The CMA Code is only binding upon members of the CMA, but is often regarded as setting “best practice” standards for industry, in particular with respect to approaching the personal information of children and teens.
Canada’s federal private-sector privacy legislation, the Personal Information Protection and Electronic Documents Act, does not specifically address the issue of collection of personal information from children. Turning, then, to the guidance of the CMA Code (and, to a lesser extent, interpretation guidelines under the ASC Code), suggests:
Parent/guardian consent should be obtained to collect personal information from children under 13.
In the context of contests, parental permission is not required where minimal information is collected, only the parent (not a child winner) is contacted, and the information is not used, disclosed or transferred outside of the context of the contest.
For teens from 13 through 15, marketers may collect and use contact information with the express consent of the teen, but the express consent of the teen’s parent or guardian is needed to disclose the contact information to a third party.
To collect other personal information (beyond contact information) from teens aged 13 through 15, the marketer must obtain express consent of the teen’s parent or guardian.
At the age of 16, no parental consent is required. Only the express consent of the teen is required for the collection, use and disclosure of personal information.
We note that, under common law in Canada, consent provided by a minor freely, without duress or deception and with sufficient mental capacity, would be enforceable unless the minor repudiated the consent before attaining the age of majority, or within a reasonable time thereafter. Under the Civil Code in Quebec, however, only persons who have reached the age of majority can validly provide any consent to use their personal information.
While advertising to children is generally prohibited in Quebec, elsewhere in Canada it is possible for marketers to advertise directly to children. In doing so, advertisers must be sensitive to how easy it may be to mislead, confuse or influence a child. In the broadcast media, this concern will be most strictly enforced and only those ads that are approved under the Broadcast Code will be allowed to air. Advertising food to children will continue for the foreseeable future to be a sensitive issue, not only in Canada, but also at a global level. The advertising community in Canada has undertaken self-regulatory measures to address these concerns. It remains to be seen whether these will be seen to suffice or whether legislative action will come into place.
Abbreviations: (a); Exaggerate the nature, characteristics, performance or duration of goods or services.; (b); Minimize the degree of skill, strength or dexterity or the age necessary to use goods or services.; (c); Use a superlative to describe the characteristics of goods or services or a diminutive to indicate its cost.; (d); Use a comparative or establish a comparison with the goods or services advertised; (e); Directly incite a child to buy or urge another person to buy goods or services or to seek information about it.; (f); Portray reprehensible family or social lifestyles.; (g); Advertise goods or services that, because of their nature, quality or ordinary use, should not be used by children.; (h); Advertise a drug or patent medicine.; (i); Advertise a vitamin in liquid, powdered or tablet form.; (j); Portray a person acting in an imprudent manner.; (k); Portray goods or services in a way that suggests an improper or dangerous use thereof.; (l); Portray a person or character known to children in order to promote goods or services, with certain exceptions.; (m); Use an animated cartoon process, except to advertise a cartoon show directed at children.; (n); Use a comic strip, except to advertise a comic book directed at children.; (o); Suggest that owning or using a product will develop in a child a physical, social or psychological advantage over other children of his or her age, or that being without the product will have the opposite effect.; (p); Advertise goods in a manner that misleads a child into thinking that, for the regular price of those goods, he or she can obtain goods other than those advertised.
Published in conjunction with the Global Advertising Lawyers Alliance (GALA) (www.gala-marketlaw.com). GALA is an alliance of lawyers located throughout the world specializing in advertising law.