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Emerald Group Publishing Limited
Copyright © 2011, Emerald Group Publishing Limited
Advertising to children in Japan
Article Type: Legal briefing From: Young Consumers, Volume 12, Issue 4
The Act Against Unjustifiable Premiums and Misleading Representations in Japan (Act No. 134 of 1962) (the “Premiums and Representations Act”) contains fundamental legal principles with respect to regulations in Japan on expressions in advertisements. Article 1 of the Premiums and Representations Act provides that “the purposes of this Act are to prevent inducement of general consumers to particular transactions of goods or services by means of unjustifiable premiums and misleading representations in connection with such transactions, and thereby to protect interests of general consumers by establishing certain provisions of restrictions on or prohibition of conducts that are likely to inhibit voluntary and rational choices by general consumers.” As such, the regulations against misleading representations under the Premiums and Representations Act serve as a consumer-oriented national policy in order to create and ensure environments/circumstances in which consumers can make voluntary and rational choices of goods or services.
Such purposes to regulate advertising expressions under the Premiums and Representations Act pertain more exactly to advertising targeted at children whose intention and capabilities to “voluntarily and rationally” choose goods or services are poorer than adults. Thus, it is generally believed that regulations on advertising targeted at children should, in general, be stricter.
This article discusses particulars of statutory regulations and self-regulations applicable in Japan with respect to advertising targeted at children, thereby making clear critical points in producing and displaying advertisements by advertisers, advertising producers and advertising media.
Regulations on national level
Article 1, Paragraph 1, of the Child Welfare Act in Japan (Act No. 164 of 1947) requires all Japanese citizens to “endeavor to ensure that children are born and brought up in sound mental and physical health conditions.” While the Child Welfare Act provides for such general principles for protection of children, the Act contains no specific provisions regulating advertisements targeted to children.
Article 4, Paragraph 1, of the Premiums and Representations Act generally regulates advertising. The provisions in this Paragraph, however, merely regulate representations targeted at general consumers. Moreover, none of the provisions in the Premiums and Representations Act contains any specific regulations with respect to advertising targeted at children.
In order to specifically elaborate on those regulations under the Premiums and Representations Act, industries set forth their respective detailed rules with respect to matters relevant to premiums or representations in their Fair Competition Protocols subject to authorization by the Fair Trade Commission of Japan pursuant to Article 12, Paragraph 1, of the Premiums and Representations Act. It is essential for advertisers to refer to the relevant Fair Competition Protocol, if any, applicable to the particular product or service in producing an advertisement. Such Protocols, however, do not particularly regulate advertising targeted at children, either.
In addition, advertising for certain industries, such as medical, pharmaceutical, banking, financial or securities transaction and insurance industries, is regulated by special statutes. These statutes, however, have no regulations that give any special attention to advertising designed toward children as advertising targets.
Regulations on local government level
Meanwhile, on a local government level, a number of local governments adopt the so-called “ordinance to protect and nurture juveniles” for the purposes of improving environment for juveniles and preventing particular conducts that would likely harm welfare for juveniles and thereby to seek sound development of juveniles. Those local governments regulate advertising that is considered harmful to juveniles under their ordinances.
By way of illustration, the Tokyo Metropolitan Government has established the “Ordinance Concerning Nurture of Juveniles” (Ordinance No. 181 of 1964). Article 14 of this Ordinance provides that “if form or content of an advertisement significantly stimulates sexual feelings of juveniles or significantly encourages cruelty of juveniles and thereby would likely inhibit sound growth of juveniles, the Tokyo Metropolitan Government may order a change of such form or content of the advertisement and take other necessary measures against the advertiser or its managing agent.”
With respect to regulations on advertising targeted at children, self-regulations described below have more specific particulars than the above-mentioned governmental laws and regulations. Such self-regulations practically play, as significant guidance to be complied with, an important role in creating particular advertisements.
General principles in self-regulations for advertising industry
In Japan, advertisers, industries, advertising media and the advertising industry respectively adopt self-regulations with respect to advertising on a voluntary basis. In particular, as self-regulations applicable to the entire advertising industry, a self-regulatory body comprising advertisers, advertising media and advertising creators in Japan sets forth general principles on advertising, which include key considerations with respect to advertising designed toward children.
The Japan Advertising Review Organization, Inc (“JARO”) is a self-regulatory body of advertising in Japan. JARO receives approximately 6,000 complaints and inquiries a year from business entities and consumers with respect to particular advertisements. JARO reviews the truthfulness and accuracy of advertising complaints raised by consumers, competitors and others. JARO, when necessary, recommends that advertisers modify or discontinue questionable advertisements. Such recommendations are reported, if appropriate, to the advertising bodies concerned for their reference and information. For such review, JARO has adopted the “JARO Reviewing Standards” since February 1978. These Standards contain a general rule that reads “advertising should be paid attention to in view of influence of advertising over children.” These Standards, however, embrace no specific provisions with respect to advertising designed toward children. JARO has adopted no standards other than the above-mentioned general reviewing standards, and routinely reviews advertisements in accordance with the Premiums and Representations Act and self-regulations adopted by other self-regulatory bodies.
Another advertising industry organization, the Japan Advertising Agency Association, has adopted the “Code of Ethics” since 1971. The “Creative Code” contained in the “Code of Ethics” provides that “advertising should be paid attention to in order not to interfere with sound growth of juveniles.” The Code has, however, no particular provisions pertaining to advertising designed toward children.
Self-regulations for specific advertising media
Certain self-regulatory bodies have been established by advertising media. Self-regulations adopted by such self-regulatory bodies provide for more particularized rules or guidelines with respect to advertising designed toward children.
The Japan Newspaper Publishers and Editors Association, a self-regulatory body of the newspaper media industry in Japan, adopted the “Newspaper Advertising Standards” on May 19, 1976, as amended on March 20, 1991.
The Federation of All Japan Outdoor Advertising Associations, a self-regulatory body of the outdoor advertising industry in Japan, adopted the “Outdoor Advertising Code of Ethics” in August 1964.
The Film Classification and Rating Committee, a self-regulatory body of the movie industry in Japan, adopted the “Movie Advertising Reviewing Standards” in April 2009.
These self-regulations, however, have no particular provisions with respect to advertising designed toward children.
Meanwhile, the self-regulatory bodies concerning magazine advertising and television advertising have adopted detailed self-regulations. These self-regulations are the most detailed ones with respect to advertising toward children, and thus provide fairly valuable and informative standards and, as such, would serve as guiding criteria in applying general and broadly-worded provisions adopted in other self-regulations.
The Japan Magazine Advertising Association has adopted the “Magazine Advertising Standards,” the ninth edition of which was released on May 20, 2011. These Standards set forth the following self-regulations with respect to advertising in magazines targeted at or designed for children:
“As for advertisements in magazines the primary reader segment of which is envisioned to be minors as well as advertisements for goods concerning the younger generation, their content and specific expressions should be paid closer attention to in order not to disturb the younger generation’s sound growth and, in particular, the following should be kept in mind:
(a) Place no ads that would be likely to extremely stimulate sexual or cruel feeling, or adversely affect their mental health;
(b) Place no ads of toys or sporting equipment whose design or functions would directly threaten their lives or bodies;
(c) Comply with laws and regulations on prohibition of drinking alcohol beverages and smoking by minors;
(d) Endeavor to obtain parental consent to children’s purchase of expensive goods or services targeted at children;
(e) Pay full attention to the younger generation’s purchasing behavior to prevent any possible troubles arising from their immature judgment under relevant laws and regulations;
(f) Place no ads of so-called “date matching service” websites designed to provide opportunities for developing sexual relationship or companionship in magazines targeted at children under 18 years of age;
(g) Confirm whether advertisement scripts seemingly of “date matching service” websites in all magazine and, in particular, those whose readership include children, display a caution with respect to prohibition of children’s use of such web sites, as required by laws and regulations;
(h) As for notice ads of internet web sites through the use of personal computers as well as mobile web sites through the use of mobile phones, be fully aware of contents of such web sites. In particular, place no advertisement of websites that contain harmful information for children such as those containing information inducing criminal conducts or suicides, information extremely stimulating sexual desires or information containing extremely violent or cruel content, and thereby endeavoring to safeguard children from being victims of vicious sales methods and so forth; and
(i) Place no ads in regard of gambling. In particular, as for ads which would encourage a gambling spirit such as those with respect to “winning tips” for prize draws or sweepstakes in magazines targeted at children, pay full attention to the provision of sufficient particulars in placing such ads so that they would not go too far, not just complying with the Premiums and Representations Act.”
As to mail-order businesses through magazines targeted at children, the Ethic Committee of the Japan Magazine Advertising Association established the following self-regulations on April 1, 2009:
“As for advertising with respect to mail-order purchases in magazines whose primary readership is envisioned to be children, their content and particular expressions should be paid a closer attention to in order not to betray children’s trust in magazine advertising and not to disturb children’s sound growth, and advertisers should determine whether to place a particular advertisement pursuant to the following self-regulations:
1. As a rule, do not place any ads with respect to mail-order purchases, which require an advance payment by purchasers;
2. As a rule, do not place any ads with respect to mail-order purchases, which reject returns;
3. When placing ads in magazines targeted at small children, more strictly investigate the identity of the advertiser as well as the goods or services, and thereby confirm the legitimacy and propriety of advertising expressions;
4. Adopt an ordering method, which requires parental consent by demanding the signature or seal of a parent. In particular, keep this in mind in adopting an ordering method through the use of a personal computer or a mobile phone;
5. Place no ads, which feature a giveaway item and eventually contemplate a particular transaction;
6. When using a small space for introducing goods, avoid lack of sufficient explanation and, if and where appropriate, indicate those matters, which are permitted to be omitted under the Act on Specified Commercial Transactions;
7. As for advertising of value-added goods such as “something that brings you happiness” the price of which is higher than otherwise, avoid using unscientific languages in ads of such goods, and place no ads of such value-added goods when they are pretty expensive;
8. When the particulars of goods are unclear from the language of ads, place no ads of mail-order purchase, which requires placing of orders initially for product catalogues. For the avoidance of misunderstanding, indicate correct and clear descriptions of the products; and
9. Indicate the complete company name, address and telephone number of the advertiser. The indication only of a P.O. Box number is inappropriate.”
The National Association of Commercial Broadcasters in Japan has adopted the “Broadcasting Standards” since January 1970, amended as of January 22, 2004, to regulate television advertising. These Standards are accompanied by the “Key Considerations Concerning Television Advertising to Juveniles” (established in March 1982, as amended as of March 18, 2009) containing the following provisions:
“In enforcing the Broadcasting Standards on television advertising designed toward children, advertisers should pay attention to the matters set out below in order to be more mindful of such advertising.
1. Subject matters of these Key Considerations are as follows:
(1) “Juvenile” means a child who is 12 years or younger of age and is immature as to its personality;
(2) “Commercials toward Juveniles” means Commercials of Goods or Services toward Juveniles and Commercials of Program to Juveniles;
(3) “Commercials of Goods or Services toward Juveniles” means television commercials for goods or services which are often purchased by Juveniles, such as toys, confectionery and stationery; and
(4) “Commercials in Programs for Juveniles” means Time CM or PT inserted in educational television programs narrowly for Juveniles or television programs of animation, fairy tales, television dramas, games and the like.
2. As to Commercials to Juveniles, advertisers should pay attention to the matters set out below.
(1) Do not deal with any matter, which is contrary to the mind of a reasonable person and would impair good moral characters of Juveniles;
(2) Do not deal with any dangerous conduct, which may be copied by Juveniles;
(3) Do not deal with any matter, which causes a feeling of terror among Juveniles;
(4) Do not deal with any matter which implies anti-social conducts that affirm violence or impairs dignity of life; and
(5) Do not deal with any matter, which is inappropriate for a conversation topic at home, intended to be used personally/secretly or related to alcoholic beverages or tobacco products.
3. As to Commercials of Goods or Services toward Juveniles, advertisers should, in addition to the matters described in the foregoing Paragraph, pay attention to the matters set out below.
(1) Avoid any expression which is intended to utilize Juvenile’s feeling of inferiority or superiority, prompting fears of being isolated, absent having the particular product;
(2) Avoid any expression, which exaggerates, or causes to overestimate, performance of a particular product or feature of a particular service;
(3) Avoid any expression which unduly encourages Juveniles to purchase a particular product or service, utilizing their sense of trust in parents, teachers, heroes/heroines of TV shows, celebrities or the like;
(4) In running sweepstakes or giving premiums, avoid any expression, which overly encourages Juveniles’ gambling spirit and purchasing desire. As such, advertisers should comply with the Premiums and Representations Act and its subordinate regulations as well as the Fair Competition Protocol concerned. Advertisers should not place an advertisement with respect to a campaign in which Juveniles may be given cash then and there;
(5) Do not deal with a campaign in which Juveniles may be given premiums as considered dangerous or harmful to them;
(6) Avoid any superlative expressions such as ‘the best in Japan,’ ‘the best item’ or ‘currently the most popular item’; and
(7) Pay attention to the obtainment of parental consent or other requisite consent in receiving an order through mail-order.
4. Advertisers should pay attention to the avoidance of expressions inappropriate for Juveniles in television commercials that a Juvenile appears on.”
Self-regulations for particular products
No self-regulation for particular products
Advertisements toward children are frequently placed for particular products such as confectionery, snack foods, toys and stationery. As such, advertisers might need to pay more attention to appropriateness of advertising of such products in that their advertising content should not adversely affect children’s sound growth.
There exists, however, no self-regulation on advertising designed toward children for particular products in Japan. The reality is that advertising toward children is only regulated by general laws and regulations on advertising or self-regulations for particular advertising media. By way of illustration, advertising of a junk food containing excessive amounts of fat or sugar is in no way prohibited or restricted in Japan. The reason for non-existence of regulations on advertising toward children for such products in Japan is presumably because little substantial harm to children in eating such products is seriously recognized in Japan (e.g. childhood obesity is not very customary in Japan), or even where a particular harm is recognized, it is generally considered that parents should avoid such harm at their own responsibilities.
In recent years, however, we can observe some cases in which misleading advertising of particular businesses has caused troubles in Japan. It is reported that, while a certain online game service on cell phones was advertised as being “free of charge,” some child users were in fact highly substantially charged for gaming, which gave rise to major repercussions1. In playing such online game, customers would have extreme difficulties in enjoying the game fully on an “as is” basis unless they purchase certain paid optional gaming tools or devices. Children, however, tend to believe or presume that every experience of the game is for free. The background of such problem arguably is that the advertising of such online games often emphasizes without any reservations that they are “free” and is thus devoid of sufficient notices or remarks which indicate that playing such games may be subject to tool/device use fees and the like2.
If such troubles become more rampant and serious, advertising of online games may become regulated in Japan in the near future. In fact, the National Consumer Affairs Center of Japan did, with a view to avoiding any such troubles related to the situations above, request the industry concerned that if an advertiser who provides online gaming services intends to charge tool/device use fees and/or other fees for playing the games, the advertiser be required to provide sufficient prior notices or remarks.
Tobacco and alcohol
Under the Minors’ Alcoholic Beverage Consumption Prohibition Act of Japan (Act No. 20 of 1922) and the Minors’ Smoking Prohibition Act of Japan (Act No. 33 of 1900), minors are banned from drinking alcoholic beverages and smoking, and sale either of alcoholic beverages and tobacco products to minors are also banned3. Thus, advertising of alcoholic beverages or tobacco products toward children is categorically prohibited and, accordingly, limitations on advertising of such products targeted at children are logically non-existent.
Nonetheless, in terms of social responsibility of tobacco business companies and alcoholic beverage business companies for prevention of minors’ consumption of alcohol and smoking, there exist in Japan governmental guidelines and self-regulations which require that advertisers pay attention to influence over children in advertising generally of tobacco products or alcoholic beverages, instead of dealing particularly with advertising targeted directly at children.
More specifically, the Tobacco Institute of Japan has long adopted the “Self-regulations Concerning Advertising and Marketing of Tobacco Products” (as amended as of July 27, 2007), which is designed to draw the industry’s attention to adverse effects of tobaccos on health and thereby to contribute to prevention of children’s smoking.
Likewise, the National Tax Agency of Japan has adopted regulations providing for certain rules with respect to labeling and representation requirements for bottles and packages of alcoholic beverage products, limitations on places to display such products as well as sales methods in the “Guidelines for Representation Standard Concerning Prevention of Minors’ Consumption of Alcoholic Beverages” (Circular No. 9 of the National Tax Agency, November 22, 1989). In addition, the Alcoholic Beverage Consumption Council comprised of eight relevant industry associations of alcoholic beverage business in Japan has adopted the “Self-regulations Concerning Advertising, Marketing and Packaging of Alcoholic Beverages” which provide for detailed rules for advertising of alcoholic beverages, with a view to preventing alcohol consumption by minors.
Akihiko Hara and Naomasa NakagawaAttorneys-at-law.
High Charges to Children for “Free” Games Gives Rise to Consumer Trouble Consultations, the Nikkei, December 17, 2009.
High Charges for “Free” Games; Troubles with Children Concerning Online Games, the National Consumer Affairs Center of Japan, December 16, 2009.
For the purposes of these Acts, a minor means a person who is under 20 years of age.
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.