Advertising to children in Argentina

Citation

Pardo, D.A. and Fernandez Pfizenmaier, P.G. (2011), "Advertising to children in Argentina", Young Consumers, Vol. 12 No. 2. https://doi.org/10.1108/yc.2011.32112baa.002

Advertising to children in Argentina

Article Type: Legal briefing From: Young Consumers, Volume 12, Issue 2

Preface

In Argentina there are many federal laws and self-regulatory codes and guidelines that specifically address advertising directed to children. Our federal legislation and self-regulation bureau work side by side to ensure that advertising addressed to children is legal, decent, honest, truthful, and respects their needs.

It is worth mentioning that under Law No, 26.579, dated December 22, 2009, that modified our civil code, minors’ incapability ceases by reaching legal age on their eighteenth birthday. Consequently, this new rule has changed the legal age from 21 to 18.

Please note that in addition to the general provisions found in the Argentine Constitution, the Consumer Protection Act and the Code of Ethics and Self-Regulation of CONARP (Argentine Council of Advertising Self-Regulation (CONARP, n.d.), there are certain advertising media and product categories subject to restrictions imposed by federal legislation.

Moreover, our recently modified National Broadcasting Law provides, among other things, a safe harbor in which both programs and advertisements must meet certain requirements as regards their contents.

Also, the Convention on the Rights of the Child, ratified by Argentina, expressly establishes the need to protect children of all information or material which could be harmful to their physical and mental health.

Below we detail the main self-regulatory principles governing advertising directed to children as well as the applicable legislation in the area.

Media law

The Convention on the Rights of the Child, which ranks above national laws according to Article 75, Section 22 of the National Constitution, provides in its Article 17 that:

States Parties recognize the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health.

In this respect, a new Act of Audio-Visual Media Services was recently enacted providing for limitations to media contents, compelling owners of licenses of communications to comply with the restrictions related to protection of minors, among others:

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  establishing a time protection for children from 10 p.m. to 6 a.m.;

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  inserting the caption “Warning, unsuitable for children and teenagers” before broadcasting shocking flashes or information that might affect the ethics of child protection during hours not reserved for an adult audience;

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  devoting at least three hours per day on network television to programs with an appropriate content for children and teenage viewing; and

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  prohibiting the participation of children under the age of 12 in TV programs that are broadcast after 10 p.m.

Regarding advertising, the new Act considers all advertisements addressed to children urging them to purchase goods/services to be against the best interests of children and teenagers, playing upon their lack of expertise or naivety. The same is to be said about advertising directed to persuade fathers or tutors.

Code of Ethics and Self-Regulation of CONARP

The Ethic and Self Regulation Code of the CONARP (Advertising Self-Regulation Board) states, as one of its principles, that “advertising has to respect moral principles and moral customs” (Art. 1).

CONARP dedicates an entire section to “Advertising and its Effects on Children and Teenagers”, which establishes the principles that advertising directed to young consumers should comply with. Basically, the code states as a general principle that advertising addressed to children “must not exploit their naivety or lack of experience”, and must not present information or images that might result in their physical, emotional or moral harm.

Please bear in mind that there is a Self Regulation Commission (SRC) within the Council for Self-Regulating Advertising (CONARP) that deals with claims against advertising made by any of their associates that infringes those guidelines. The ten-member SCR can act either ex-officio or at the request of any person who files a complaint in respect of any ad that violates any provision of the Code of Self Regulation and Ethics for Advertising (“the Code”). Within two days from the date of receipt of the complaint, the SCR shall meet and deliberate. If, after the deliberation, the SCR decides that no provision of the Code is violated by the ad, it shall inform the complainant of its decision.

If, on the contrary, the SCR concludes that there is a violation of the Code, then it shall inform the interested parties in writing of the infringing company or agency, pointing to the provisions infringed upon. The SCR shall also invite the interested parties for a hearing to present their views and arguments.

In the event that the SCR decides that the ad is contrary to the principles of the Code, it will ask the company and agency to withdraw (cease broadcasting) the same within 24 hours. If the company and agency agrees to this, then the SCR shall inform the complainant and close the file.

In the case that the company or agency does not respond or decides not to obey the resolution, the SCR shall inform this fact to the complainant within a 24-hour period, and shall inform the public through the media and press about the ad in question and the attitude of the company/agency involved.

Under Section 35, the advertising of products directed to children and teenagers may not advertise goods or services that, because of their nature, quality or ordinary use, should not be used by children or exaggerate the nature, characteristics, performance or duration of goods or services, and neither should they make them feel inferior or unpopular, disloyal or lacking in courage for not buying the advertised product.

Advertisement of toys is also regulated by the Code, which states the requirements that ads must comply with in order to avoid disappointment in children.

Tobacco, alcohol, medicines, food, and other categories of products

The Code of Ethics and Self-Regulation of CONARP refers to advertising of certain categories of products, providing in its Article 32, Section 8, that alcohol, tobacco and cigarette advertising must be oriented exclusively to adults, and warns especially against broadcasting such messages in magazines for young people, TV, radio or the movies, e-mail, the internet, mobile phone and other alternative means during the hours dedicated to children. People representing or appearing as minor must not participate in those messages and/or ads. The participation of minors shall only be acceptable as long as there is no violation of health and ethic principles, and/or when it does not lead to consume such products.

Moreover, in our country the advertising of alcoholic beverages is specifically regulated in Law 24.788 (National Law on the Prevention of Alcoholism, n.d.).

Such law, in its Article 6, prohibits all advertising or incentives to consume alcoholic beverages that:

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  are aimed at young people under the age of 18;

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  include young people under the age of 18 drinking alcohol;

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  suggest that the consumption of alcoholic beverages increases physical or intellectual performance;

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  use alcoholic beverage consumption to stimulate sexuality and/or violence in any way; and

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  do not include in visible wording and place the inscriptions “Drink in moderation” and “It is illegal to sell this product to anyone under the age of 18”.

Also, regulatory decree of the National Law against Alcoholism (Decree 149/ 2009), modified by Decree 688/09, provides the following:

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  The 18-year-old ban is applicable to all kind of publicity – direct, indirect (non-traditional), institutional, as well as to encouraging alcohol consumption in programs that are broadcast by mass media (radio and television) during restricted viewing time, when its main content is especially addressed to minors; in movies addressed to minors; in public events (sport, cultural or artistic) whose main content is addressed to minors; and in graphic media whose main content is especially addressed to children.

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  It is forbidden to use under-age children drinking alcohol in ads. This ban is applicable to all kinds of publicity – direct, indirect (non-traditional), institutional, ads broadcast by mass media (radio and television) or in movies. In order to broadcast such material, a sworn statement by advertisers is mandatory, certifying the exclusion of minors in alcohol-consuming roles. A mandatory requirement for broadcast is the presentation of sworn statement of the announcers certifying that minors shall not be included drinking alcohol.

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  It is also forbidden to broadcast ads suggesting that consuming alcoholic beverages improves the physical or intellectual performance of people. This ban involves ads or the incentive to drink using sportsmen, intellectuals, scientific or famous professionals; or in general famous people or people with special skills when the ad suggests that consuming alcoholic beverages improves their physical or intellectual performance.

Regarding tobacco products, they are regulated under Law No. 24.044, which provides many restrictions concerning the advertising of tobacco, cigarettes or other related products, namely:

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  these products may not be advertised on radio or TV between 8 a.m. and 10 p.m., except those that only identify a trademark and are excluded from the mass media premises;

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  advertising of these products cannot be done in publications addressed to minors nor in theatres allowing minors under the age of 18;

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  samples of this category of products must not be promoted nor distributed in schools, colleges, universities, teaching institutions, or in shows, performances or other activities addressed to the under-age public;

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  tobacco advertising cannot be endorsed by famous people whose acclaimed activity is related to children; and

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  tobacco ads may not feature anyone below the age of 18.

In addition, the City of Buenos Aires forbids sportsmen/sportswomen from wearing sportswear sponsored by alcohol or tobacco brands when they participate in competitions scheduled for people under the age of 18.

The advertising of medicinal products is regulated by Public Health Law No. 16463, National Decree No. 9463/1964, Ministry of Health and Environment Resolutions Nos 627/2007, 1061/2007 and 20/2005, and the Resolutions of the National Administration of Medicine, Food and Medical Technology (ANMAT) (Resolutions of ANMAT, n.d.), among others.

We found some restrictions scattered among Resolutions Nos 2339/2002 and 4980/2005 of ANMAT regarding young consumers, such as:

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  the advertising of medical devices for domestic use and medical or dental products must not include phrases or messages which are exclusively or mainly targeted toward to children or teenagers, except in prevention campaigns; and

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  children may not perform in ads for pediatric products, nor may they issue messages contained in them.

Moreover, it is forbidden to deliver free drug samples to children.

The above-mentioned resolutions also referrer to the advertising of food products stating that the ads of this category of products must not include phrases or messages which are exclusively or mainly addressed to minors under the age of 12, without adult guidance.

Promotions and sweepstakes

Permission must be obtained from the child’s guardian to participate in certain promotional activities such as promotional games.

In addition, the Official Rules of sweepstakes and promotions that generate direct resources to the organizer, measurable in money terms, and that exclusively come from the promotion itself, must expressly prohibit the participation of children under the age of 18.

Thus, minors (i.e. those aged under 18) may not be bound by the terms and conditions of a contract to which they are a party. It is advisable to seek the express consent of a parent/guardian when directing a prize promotion towards minors.

Dámaso A. PardoPartner with the IP Group of Perez Alati in Buenos Aires. He has been practising IP law for 20 years.

Paula G. Fernandez PfizenmaierAssociate in the IP Group of Perez Alati in Buenos Aires since 2006. Her main areas of practice are trade-mark prosecution and litigation, advertising law, internet law and privacy rights.

Acknowledgements

Published in conjunction with the Global Advertising Lawyers Alliance (www.gala-marketlaw.com). GALA is an alliance of lawyers located throughout the world specializing in advertising law.