Citation
Dresden, B. (2012), "Legal and regulatory controls on advertising and marketing to children in the United Kingdom", Young Consumers, Vol. 13 No. 3. https://doi.org/10.1108/yc.2012.32113caa.002
Publisher
:Emerald Group Publishing Limited
Copyright © 2012, Emerald Group Publishing Limited
Legal and regulatory controls on advertising and marketing to children in the United Kingdom
Article Type: Legal briefing From: Young Consumers, Volume 13, Issue 3
1. Introduction
The UK advertising industry has long recognised the need to avoid exploiting the natural credulity and vulnerability of the young. Accordingly, stringent regulations have evolved over many years to safeguard their welfare.
2. Legal and regulatory framework
The Consumer Protection from Unfair Trading Regulations 2008 (the CPRs) are applicable to all promotions and marketing in the UK and provide a general prohibition of unfair and misleading commercial practices in business-to-consumer transactions. The assessment of what is misleading is linked to the average consumer from any group that is targeted by a particular commercial practice.
The Data Protection Act 1998 regulates the processing of information relating to individuals, including the obtaining, holding, use and disclosure of such information.
The UK Code of Non-broadcast Advertising, Sales Promotions and Direct Marketing (the CAP Code) is produced by the Committee of Advertising Practice and sets out general and industry specific guidelines governing advertising content in printed and electronic materials such as fax transmissions, website content, promotional emails, ad banners on social networking sites and search engine sponsored link ads. The CAP Code is enforced by the Advertising Standards Authority (the ASA).
The British Code of Broadcast Advertising (the BCAP Code) is produced by the Broadcast Committee of Advertising Practice and sets out general and industry specific guidelines governing advertising on terrestrial, satellite and interactive television and radio channels licensed by the Office of Communications (Ofcom). The BCAP Code is also enforced by the ASA.
PhonepayPlus is the agency which carries out the regulatory functions of the premium rate services market on behalf of Ofcom. Regulation is through the PhonepayPlus Code of Practice1, which contains provisions relating to the content, promotion and overall operation of premium rate products or services in the UK.
3. Who is considered a “child” in the UK?
As a general rule, an individual under the age of 16 is considered a “child” for the purposes of advertising law in the UK. Those aged 16 to 18 are often referred to as “young persons”. There are notable exceptions where advertising restrictions will be applicable to different age groups, for example, in the case of alcohol and slimming adverts, which must only be aimed at those 18 years and older.
4. Overriding principles in relation to children’s advertising
Physical, mental and moral harm2
Safety is arguably one of the greatest parental concerns and is subject to strict legal and regulatory controls in advertising. Generally, all advertisements must avoid showing children in hazardous situations, behaving dangerously or in close proximity to dangerous substances or equipment. They should not be encouraged to talk to strangers or enter strange places and, as they are quick to emulate others, they should not be encouraged to copy unsafe practices3. Scenes of violence or violent conduct in advertising should also be avoided.
Sexually provocative and explicit content in advertisements is of particular concern in the UK at present, with the Bailey Review4 reporting that society has become increasingly full of sexualised imagery which has created wallpaper to children’s lives and great concerns from their parents who feel powerless to do anything about it. Critics targets sexually explicit music videos, advertising and TV programming in general.
Credulity, loyalty, vulnerability and inexperience5
Children can be susceptible to misunderstanding, harm and disappointment. To safeguard them, the CAP and BCAP Codes rules state that advertisements should not exploit their credulity, loyalty, vulnerability or lack of experience, nor make them feel inferior or unpopular, disloyal or lacking in courage for not buying a product.
Advertisers are allowed to demonstrate the features of a product but should never exaggerate them or arouse unrealistic expectations. For example, a toy plane that doesn’t fly should not be advertised flying unless it is clear that someone is holding it or that it has been suspended on a wire.
Pester power6
Both the UK legal and regulatory regimes address long held concerns about pester power by preventing advertisers from encouraging children to ask their parents to buy particular goods or service. Rowntree’s famous “Don’t forget the fruit gums, Mum!” has long since been banned by advertising regulation.
Under the CPRs, advertising that includes a direct exhortation to children to purchase advertised products or persuade their parents (or other adults) to buy such products7 is also prohibited. Adverts of this nature are considered automatically unfair under the CPRs and may incur criminal liability. The CPRs contain a list of 31 banned practices which are always unfair and in breach of the CPRs. Although 29 of these also give rise to criminal liability, the use of pester power is one of two which do not8.
This is reflected in the CAP and BCAP Codes which state that advertisements are not allowed to actively encourage children to make a nuisance of themselves to parents or advise them to ask their parents to purchase products9.
Data protection
The Data Protection Act sets out key principles to be followed by anyone processing personal data – “processing” and “personal data” are very widely defined to encompass most businesses holding any information about individuals. The principles include fair and lawful processing of data, restricting data collected to that required for specific purposes, not keeping that data for any longer than is necessary for those purposes and ensuring the accuracy and security of any data collected.
The Information Commissioners Office (the ICO) publishes guidance on the interpretation and application of these principles.
In order for any data processing to be fair, at least one of various conditions specified in Schedule 2 of the Data Protection Act must be met. If the data is sensitive, further conditions apply. If the data subject is a child, the only conditions it will be possible to meet (since the child is unlikely to be party to a contract etc) are that the child has consented to the processing, or the processing is necessary to comply with a legal obligation or to protect the child’s vital interests.
The ICO Code of Practice on “Personal Information Online” advises that, as a general rule, personal data should only be collected from a child with the “explicit and verifiable consent” consent of his or her parent/guardian, unless that child is aged 12 years or over10.
The CAP Code states that marketers must not knowingly collect personal information from children under 12 without the consent of that child’s parent or guardian11. The CAP Code also prohibits marketers from knowingly collecting personal information about any third parties from children under the age of 1612.
Advertisers should recognise that children generally have a lower level of understanding than adults. Consequently, websites that collect information from children must have strong safeguards in place to ensure any processing is fair and the age of the child is verified. Notices explaining the way children’s information will be used should be clear and appropriate to their age group and not exploit any lack of understanding. If parental consent is needed, there must be some way to verify this. It will not usually be sufficient to ask children to confirm that their parents have agreed by using a tick box.
Scheduling
Broadcasters must take special care when scheduling advertisements which might be unsuitable for children or young persons, for example where content may frighten or distress children or refers explicitly to sexual matters. As well as restricting unsuitable material by reference to time of broadcast, consideration must be given to the target audience of the programme during, or adjacent to which the advert appears.
Certain products may not be advertised during or adjacent to programmes likely to appeal to audiences of three specific age groups. For example:
- •
Under 18s: alcoholic drinks, gambling (except lotteries), slimming products and premium-rate services.
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Under 16s: lotteries, certain gaming, medicines and supplements, films/computer or console games carrying (or expected to carry) a rating of 15+ or above, high fat/salt/sugar foods.
- •
Under 10s: sanitary protection products and condoms.
Rule 32 of the BCAP Code13 also obliges broadcasters (rather than advertisers) to comply with the Ofcom Code on Scheduling of Television Advertising14, which considers advertising allowances in public service TV broadcasting15.
When considering scheduling restrictions, broadcasters cannot comply with their obligations simply by following any stated time restrictions (e.g. post-watershed); they must consider other factors, such as school holidays and Christmas periods, when children may be watching family-orientated programmes at a later (or earlier) time in the day.
Video games and films
As a general rule, advertisers should ensure that the content of this type of advertising is suitable for the intended audience, based on both the audience figures for broadcast times and the content of the programmes around which it will be broadcast.
The CAP Code16 generally restricts content that condones or glorifies violence so advertisers must carefully consider the use of guns or weapons, gratuitous nudity, sexual images and references to drugs in all advertising. Radio advertising should avoid sounds of people in pain, fear or suffering.
Video games rated as “18+”, “16+” or “15+”17, and films rated 18 or R1818 should not be scheduled in or around programming that targets, or is likely to appeal to, viewers under the age of 16. This will include unrated games or films which are expected to receive such a rating.
5. Sector specific restrictions and prohibitions when advertising to children
Alcohol
The restrictions on alcohol advertising in broadcast and non-broadcast media demonstrate the Government’s ongoing concern over alcohol consumption in general, and the increasing problems with binge drinking, particularly among the young. This concern affects advertising, as the general view is that it will encourage children to start drinking and that they must be protected and prevented from doing so.
Generally, advertisements for alcohol should not target, or be likely to appeal to, anyone under 18, especially by reflecting or being associated with youth culture or showing adolescent or juvenile behaviour. Further, no medium should be used to advertise alcoholic drinks if more than 25 per cent of its audience constitutes under 18s.
People who are featured in a significant role (even if not drinking) must be over, and look over, 25 years of age (the only exception being family celebrations where children can be included in an incidental role provided they are not drinking alcohol). In relation to TV and radio, advertising should not use a person, character or celebrity whose example is likely to be followed, or who would strongly appeal to under 18s19.
Food, dietary supplements and associated health or nutrition claims20
The area of food advertising to children, in particular foods that are high in fat, sugar and salt (HFSS)21, has been a controversial topic for the industry in recent years, given the dramatic rise in childhood obesity over the past decade in the UK. The NHS recently reported that three out of ten children in the UK are now classed as either overweight or obese22 and the government views this declining health trend as a ticking time bomb.
The advertising industry has responded by questioning whether advertising should be solely blamed for obesity, and questions still remain as to whether society’s attitude to junk food and obesity can be attributed to advertising, rather than a lack of awareness in society about nutrition and socio-economic factors.
In light of this, Ofcom responded to lobbying from various children’s and health-related organisations, which resulted in the CAP and BCAP Codes tight regulation on food advertising to children.
As a general rule, all advertising including but not limited to that aimed at children must generally be prepared with a “due sense of responsibility”23. Such advertising must not encourage or condone poor oral health or nutritional habits, promote excessive consumption of a food and must not put undue pressure on children to purchase food24. All promotional offers linked to food products must avoid creating a sense of urgency or condone excessive or irresponsible consumption25.
Licensed characters and celebrities likely to be popular with children must be used responsibly in all media. Such characters or celebrities cannot be used in non-broadcast and radio advertising targeted at pre-school or primary children except where promoting fruit and vegetables26.
These prohibitions will not apply where the characters or celebrities are used to present factual and generic statements about nutrition, safety or education27.
TV advertising may use these characters providing they are used with a due sense of responsibility, and never in relation to high fat/salt/sugar products targeted directly at pre-school or primary school children28.
These prohibitions do not apply to “advertiser-created equity brand characters”29, for example, Tony the Tiger for Frosties, or Ronald McDonald for McDonalds. Advertisers are still free to use such characters in their advertising aimed at children. In practice this means that a licence to use a character from a popular children’s programme such as “In the Night Garden” would be prohibited on HFSS food advertising aimed at pre-school children, whereas Tony the Tiger can continue to be used.
In relation to scheduling, TV advertising for HFSS foods may not be scheduled in or adjacent to programmes commissioned for, principally directed at or likely to appeal to, audiences below the age of 1630. The assessment of whether a programme is commissioned for, directed at or likely to appeal to under 16’s is a contentious subject. For example, the X Factor is not aimed at or commissioned for audiences under the age of 16, but is watched by a number of children and for now appears to escape the scheduling restrictions on HFSS foods.
CAP’s Guidance Note “Audience indexing: identification of programmes likely to appeal to children and young people”31 details how the ASA identifies whether a programme has, or is likely to have, particular appeal to children or young persons. For radio, the ASA considers Radio Joint Audience Research (“RAJAR”) audience figures in the relevant time-slot, the nature of the station and programming and whether the advertisement was scheduled when children are likely to be listening in large numbers. Further, broadcasters are required to have all advertising centrally cleared by RACC prior to broadcast32.
Nutritional and health claims may not be made on TV commercials for HFSS foods aimed at pre-school or primary school children33. Generally, nutritional and health claims in any advertising must not be misleading and should only be used where authorised by the European Commission.
Weight control and slimming products
All non-broadcast advertisements and promotions for any weight-reduction regime or service must not be directed at, or be likely to appeal to, persons under the age of 1834. Broadcast adverts for slimming or weight control products or services must not be addressed to persons under 18, nor can they feature any person under 18 who is likely to appeal this age group. This rule does not apply to calorie-reduced food and drinks provided the product is not presented as part of a slimming regime35. Note that there is no such exception to this rule in the CAP Code.
In relation to radio adverts, broadcasters are required to have all advertising centrally cleared by RACC prior to broadcast36.
Medicines
Advertisements for medicines must not be addressed to children37.
Gambling and lotteries
Generally, all advertisements for gambling must be socially responsible, have particular regard to the need to protect persons under 1838 and not appeal to them by reflecting or being associated with youth culture39.
Advertising must not include children and no one who is, or looks to be, under 25 years old may be featured gambling or playing a significant role. Adolescent, juvenile or loutish behaviour is also prohibited40. However, adverts that exclusively feature the good causes that benefit from a lottery and include no explicit encouragement to buy a lottery product may include children or young persons in a significant role41.
Advertising for family entertainment centres, travelling fairs, horse racecourses and dog race tracks, or for non-gambling leisure facilities that incidentally refer to separate gambling facilities (e.g. on a cruise ship) may include children provided they are accompanied by an adult and socialising responsibly in areas that the Gambling Act 2005 does not restrict by age42.
In relation to radio adverts, broadcasters are required to have all advertising centrally cleared by RACC prior to broadcast43.
Premium rate services44
According to PhonepayPlus, premium rate services must not directly appeal to persons under the age of 16. Further, such services aimed at, or likely to be particularly attractive to, children must not contain anything which a reasonable parent would not wish their child to see or hear in this way. Such services must terminate immediately when a maximum of £2.56 plus VAT per call, or in the case of a subscription service a maximum of £2.56 plus VAT per month, has been spent.
The BCAP Code45 further stipulates that advertisements for live premium rate services must not appeal directly to under 18s unless those services have received prior permission from PhonepayPlus to target this age group. They further require that all TV broadcasts include clear pricing46.
Tobacco, rolling papers and filters
Advertising cigarettes and tobacco products is illegal in the UK however, limited opportunities remain for advertising rolling papers and filters in non-broadcast media. Generally, advertising of these products to persons under 18 is prohibited. Further, no medium can be used to advertise rolling papers or filters if more than 25 per cent of the audience is likely to be either males under 18 years of age or females under 24 years of age47. Broadcast adverts that may be of particular interest to children or teenagers must not refer to tobacco or smoking, unless such references obviously form part of an anti-smoking or anti-drugs message48.
PayphonePlus – Code of Practice 12th Edition (September 2011) www.code.phonepayplus.org.uk/pdf/PhonepayPlusCOP2011.pdf
CAP Code, Rule 5.1 and BCAP Code, Rules 5.1-5.3.
CAP Code, Rules 5, 15.16 and BCAP Code, Rule 5 – PhonepayPlus Code of Practice: Rule 2.3 and 2.5.
Letting Children be Children: The Report of an Independent Review of the Commercialisation and Sexualisation of Childhood: Published 6 June 2011.
CAP Code, Rule 5.2 and BCAP Code: Rules 5.6-5.8.
CAP Code, Rule 5.5 and BCAP Code, Rule 5.9 – PhonepayPlus Code of Practice: Rule 2.3.9.
The Consumer Protection from Unfair Trading Regulations 2008/1277, Schedule 1 – section 28.
CPR Regulation 12: A trader is guilty of an offence if he engages in a commercial practice set out in any of paragraphs 1 to 10, 12 to 27 and 29 to 31 of Schedule 1.
CAP Code, Rule 5.4 and BCAP Code, Rule 5.9.
Information Commissioners Office website: Personal information online – Code of Practice – July 2010 (“ICO Code”): www.ico.gov.uk/for_organisations/data_protection/topic_guides/online.aspx: Note: While the ICO Code is not law, failure to comply with the is more likely to mean that advertisers are in breach of the Data Protection Act 1998 rules about processing data fairly.
CAP Code rule 10.15.
CAP Code rule 10.16.
BCAP Code, Rule 32 – www.cap.org.uk/The-Codes/BCAPCode/∼/media/Files/ CAP/Codes%20BCAP%20pdf/ BCAP%20Section%2032.ashx
Ofcom website: http://stakeholders.ofcom.org.uk/binaries/broadcast/other-codes/tacode.pdf
This which currently includes channels 3, 4, and 5 but excludes the BBC.
CAP Code – Helpnote: Guidance on ads for video games and films – http://copyadvice.co.uk/∼/media/Files/CAP/Help%20notes%20new/Guidance_video_games_and_films.ashx
As rated by the Pan European Game Information (PEGI).
As rated by the British Board of Film Classification (BBCI): www.bbfc.co.uk/classification/guidelines/
CAP Code: rule 8.4, 18.14 -15 / BCAP Code: rule 19.15-17.
CAP Code, Rule 15 and CAP Code – Helpnote: Food and soft drink product advertisements and children.
The Food Standards Agency – http://collections.europarchive.org/tna/20100927130941/http://food.gov.uk/healthiereating/advertisingtochildren/nutlab/nutprofmod
NHS – Statistics on obesity, physical activity and diet: England 2012: at 3.2 – www.ic.nhs.uk/webfiles/publications/003_Health_Lifestyles/OPAD12/Statistics_on_Obesity_Physical_Activity_and_Diet_England_2012.pdf
CAP Code: 15.16 and BCAP, Rule 13.9.
CAP Code, Rules 15.4-5, 15.11-12, 15.16 and BCAP Code, Rule 13.2-3.
CAP Code, Rule 15.14 and BCAP Code 13.9.
CAP Code, Rule 15.15 and BCAP Code 13.14.
ibid
BCAP Code 13.10.
ibid
BCAP Code, Rule 32.5.
BCAP Code, Rule 13.1.
BCAP Code, Rule 13.11.
CAP Code, Rule 13.3.
BCAP Code, Rule 12.5.
BCAP Code, Rule 12.1.
CAP Code, Rule 12.16 and BCAP Code, Rule 11.24.
CAP Code, Rules 16 and 17 and BCAP Code, Rule 17 and 18.
CAP Code, Rule 16.3.12 and BCAP Code, Rule 17.4.4.
CAP Code, Rule 16.3.14 and BCAP Code, Rule 17.4.6.
CAP Code, Rule 17.16 and BCAP Code, Rule 18.7.
CAP Code, Rule 16.4 and BCAP Code, Rule 17.5.
BCAP Code, Rule 17.1 and 18.1.
PhonepayPlus Code of Practice, Rules 2.3.9, 2.3.12, 2.5.8 and 5.3.14.
BCAP Code, Rules 22.3 and 22.8.
BCAP Code, Rule 22.8.
CAP Code, Rule 21.5.
BCAP Code, Rule 10.5.
Brinsley DresdenPartner at Lewis Silkin, London, UK.
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.