Advertising to children in Chile

Citation

(2010), "Advertising to children in Chile", Young Consumers, Vol. 11 No. 4. https://doi.org/10.1108/yc.2010.32111dab.001

Advertising to children in Chile

Article Type: Legal briefing From: Young Consumers, Volume 11, Issue 4

Advertising to children in Chile is, as in many marketing and advertising related topics, left mostly to self-regulation. However, in the particular case of advertising targeted to minors, self-regulative bodies have taken special care to specify the field and contents of the advertising campaign designed for teenagers and children. In addition, some legal texts such as The National Television Council Act and the Labor Code, have specific articles referring to broadcasting for children and hiring minors, as we shall further see.

1 General self regulation

The Chilean Code of Advertising Ethics (CCAE) is enforced by the Council for Self-regulating and Ethical Advertising (CONAR), a non-profit organization which essentially acts as an Arbitration Court that resolves disputes or complaints regarding decency issues, among other subjects. According to the code, advertising must respect the values, rights, and principles stated in Chile’s Political Constitution, especially regarding family ethics and values, whilst also recognizing freedom of speech as a pillar of advertising.

CONAR’s members include advertising agencies, organizations that group independent advertisers, and various media like television networks, radio stations, magazines and newspapers. By paying their monthly membership fees, they can elect the members of the board of directors, and can file complaints for any behavior that contradicts the code’s regulations. These complaints are handled first by the Board of Directors, and the procedures are filed before CONAR’s Advertising Ethics Court. Sanctions imposed by any of these are binding for members of CONAR, and may range from the temporary interruption of an advertising campaign to expelling a member.

It is important to note that CONAR has taken a keen interest in regulating advertising to children. In fact, of the 28 articles that compose the CCAE, an important part of them are dedicated to regulating this issue and one of its first provisions is the definition of what constitutes an advertising campaign that is directed to children or minors.

According to The Chilean Code of Advertising Ethics a child is anyone of 12 years of age or younger. A teenager is anyone between the ages of 12 and 18. This definition implies that any advert will be considered targeted to children in the following situations:

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  It is designed in such a way, that judging from the content, language and/or images used, it is especially suitable for attracting the attention or interest of the public belonging to that age group.

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  It promotes foodstuffs targeted mostly to children of that age group.

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  It will be broadcasted in media that is mostly targeted to children of that age or targeted to a general audience but is shown during broadcasting hours or sections of media that are directed to children.

If a given marketing campaign or advertising spot falls into any of these categories and does not comply with the Chilean Code of Advertising Ethics, CONAR is entitled to administrate sanctions, such as the interruption of the advertising campaign.

CONAR has taken a dual approach to regulating advertising to children. On the one hand, it provides general regulations that any advertising camping must comply with. On the other, it has explicit norms for certain industries such as tobacco, alcohol, food and beverage.

2 General self-regulatory framework regarding children

The CCAE provides a general framework for advertising to minors. It starts by acknowledging the responsibility that parents have regarding the mental development of their children. Likewise, it recognizes that advertising too has a role in this issue, as it is involved in the progress of the general understanding that children acquire of the world they live in.

Having this idea in mind, the CCAE states that information directed to children and teenagers must always consider the following aspects:

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  The physical and psychological characteristics of the audience, bearing in mind the special sensitivity that one must have when communicating with children.

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  Children’s lack of experience and low capacity to determine the veracity of advertising messages.

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  The use of minors in advertising must comply with the rules related to paid hiring.

Adverts directed to children must use language, visual elements and symbols that are comprehensive to children, and must avoid presenting promises that can create unreasonable expectations regarding the quality, price, performance or nutritional values of the goods offered.

3 Specific provisions related to the content and development of an advertising campaign

The fundamental idea behind self-regulation regarding advertising to youngsters is that campaign directors must not take advantage of the level of naivety or immaturity that is naturally present in this type of consumer. The Chilean Code of Advertising Ethics addresses this issue:

Advertising directed to children must take in consideration the level of knowledge and maturity of the targeted young audience. It must be especially careful when targeting young children who might lack the ability to understand the purpose of the advertising and distinguish it from non-advertising information.

Taking this general provision as a starting point, the CCAE then regulates in detail certain aspects that advertisers must consider when planning a campaign.

3.1 Violence and risk behavior

Advertising must avoid the use of violence or unjustified aggression or elements that can be associated with fear that might upset children.

Advertising must be careful in showing appropriate behavior and must avoid suggesting activities that can be harmful to children. Children must not appear in dangerous situations or having risky or irresponsible behavior, except in public service campaigns in which this is justified precisely to avoid the exposed behavior. Children must not appear alone in the street without supervision, unless he/she has the sufficient age to take care of himself. Pictures of children handling fire, chemical products, gasoline, medicines, electrical appliances, vehicles, heavy machinery or other elements that imply risk or danger in its handling, are not allowed.

Advertising shall be careful to avoid offering products or services that may cause physical or moral harm to children.

It must be noted that, notwithstanding the rules above stated, in practice, children do appear in dangerous or risky situations in many ad campaigns regularly shown in television and printed media. However, these situations are shown in a non-threatening manner. To put an example, certain breakfast cereal commercials portray children in adventurous and potentially risky situations in which obstacles are overcome by the consumption of the advertised product. But these situations are depicted in a comical fashion and do not represent real threats to the individuals involved.

3.2 Feelings

Advertising must not encourage any feeling of inferiority or social rejection in children or teenagers for not purchasing the advertised services or products. It also must not suggest a feeling of lack of loyalty or duty if the advertised product is not purchased by the potential underage consumer. Advertising must not encourage children to overwhelm their parents into purchasing the advertised product.

3.3 Pricing and sales promotions

If advertising is directed to children and suggestions of pricing are stated, this information must be given clearly, completely and comprehensively. Any additional products offered must be clearly identified. If any additional products are required, such as batteries, this must clearly be stated in the advert. The same, if the advertised product is part of a series. Advertising must not exaggerate what a child can actually achieve from the purchase of the product.

Along with the above-mentioned rules, promotions implying winning a prize must comply with the following:

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  The promotion must not exaggerate the value of prizes or the probabilities of winning them.

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  They must clearly indicate when a proof of purchase is required to participate in the stated promotions.

Sales made by mail, catalogs or the internet must clearly indicate which of the products or services offered are appropriate for children.

4 Tobacco and alcoholic beverages

As noted before, due to the health issues involved in tobacco and alcohol consumption the CCAE has drafted explicit norms regulating advertisement of these products.

In effect, tobacco and alcoholic beverages shall not be advertised during broadcasting hours reserved for minors or in media targeted to children. According to the CCAE, consumption of these products shall not be encouraged.

In this kind of advertising, the following shall be avoided:

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  The use of minors, their image or their voice.

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  The use of situations that are proper to minors.

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  The use of media that is specially directed to children.

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  Exhibition of advertising in cultural or sport events that are specially targeted to children.

In addition to the rules given by CONAR, which is only a self regulatory framework that members pledge to obey and cannot be legally enforced, the Tobacco Act, Law number 20.105, has explicit rules regarding tobacco advertising. It bans any type of advertising of tobacco products to teenagers under the age of 18. Moreover, it prohibits the exhibition any tobacco related advertisements within 300 meters of a school. The infringement of this rule can lead to a fine of up to US$25,000.

In the case of alcohol, the Alcoholic Beverages Act issues harsh penalties, including jail, for anyone encouraging minors through direct or indirect means such as advertising, to alcohol consumption.

The purpose behind these regulations is to ultimately discourage the consumption of alcohol and tobacco. As official figures show, especially in the case of tobacco, underage use is currently quite high in Chile.

5 Food and non-alcoholic beverage advertising directed to children and teenagers

Advertising related to food and non-alcoholic beverage targeted to children must comply with the general rules already stated and, in addition, the CONAR establishes explicit dispositions related to the matter.

The CCAE states that advertising of these products must not lead to confusion in regard to the nutritional values of the foodstuffs. It also indicates that advertising must avoid the use of children that due to their physical characteristics may be subject to ridicule by their peers.

6 Advertising to children in television

The National Television Council Act is the main legal body that regulates television broadcasting. Regarding advertising and content targeted to children, it specifies a daily broadcasting schedule in which tobacco and alcoholic beverages may only be advertised from 10 p.m. to 6 a.m.

It also indicates that television services are forbidden to broadcast any type of excessive violence, cruelty or participation of children and teenagers in acts of violation of ethics or good customs. The previously stated rule is crucial cause due to it, the National Television Council can interrupt the advertising in a fast and effective manner.

7 Advertising with the participation of children

It is not uncommon for advertisers to use children in television campaigns to promote the sales of their products. However, the Chilean Labor Law is quite strict regarding the employment of children in any industry, including advertising. Actually, artistic work is the only kind of paid activity permitted to children under 14 years old.

To be legally hired to undertake paid work, children and teenagers need the authorization of their parents, grandparents or legal tutor. Along with this authorization, teenagers under 16 also need to comply with their schooling obligations to be legally hired.

It is also mandatory to comply with a certain quantity of hours and the kind of work must not be risky for their physical and/or psychological health.

8 Other legal remedies

Along with the above stated self-regulatory framework and the legislation for the advertising of specific industries, the Chilean Justice System does provide legal tools to obtain monetary compensation if any given individual is offended or harmed with the broadcasting or exhibition of controversial advertising material that is directed to teenagers.

For example, if a particularly violent or sexually oriented commercial, that is not necessarily target to children, is shown during the broadcasting schedule reserved for minors, as stated in the National Television Council Act, together with the sanctions imposed by CONAR and the NTA the offended individual may file a lawsuit demanding financial compensation for the moral damages suffered by the exhibition of said commercial.

It is important to note that in Chile, the number of civil lawsuits related to monetary compensation have risen in recent years. Therefore, advertisers are likely to face this type of legal challenges if they unwillingly act against the given self-regulatory and legal framework for advertising.

9 Conclusions

In Chile, advertising to teenagers is slowly shifting from self-regulatory bodies to legal mandatory texts that explicitly regulate and determine the content of advertising targeted to children. This is especially true in the case of the tobacco and alcohol industries but we foresee that the authority will eventually extend regulatory norms to other areas that have only been subjected to self-regulation, such as the food and beverage industries. Hitherto, self-regulatory norms are the general rule and legal provisions the exception.

Legal entities such as CONAR, The National Television Council, The Alcoholic Beverage Act and the Tobacco Act that regulate advertising to minors have drafted simple but effective legal measures to protect minors from certain content. It should be fairly easy for anyone planning to advertise in Chile to comply with these rules.

Acknowledgements

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.

Ariela Agosin and Oscar Molina AlbagliZaliasnik Law Firm, Miraflores 130, Piso 25, Torre Los Andes, Santiago, 8320215, Chile