Advertising to children in Mexico

Citation

Hurtado, M. (2013), "Advertising to children in Mexico", Young Consumers, Vol. 14 No. 1. https://doi.org/10.1108/yc.2013.32114aaa.002

Advertising to children in Mexico

Article Type: Legal briefing From: Young Consumers, Volume 14, Issue 1

The purpose of this article is to approach the inherent aspects of advertising addressed to children. In Mexico children are subject to special protection because they are part of a vulnerable minority group. We shall highlight the scope of the term “minority” as qualitative and not quantitative, which means that minority groups have not been attributed this characteristic for numeric reasons, but because its sphere of human rights is more fragile compared with other groups.

Under Mexican Positive Law, the constitution establishes that the law shall protect consumers and shall pronounce its right to be duly informed. Likewise, article 4° constitutional establishes the principle of superior interest of childhood, the main purpose being to fully ensure their rights and acknowledge the vulnerability of this group.

In Mexico there is an outline of regulatory dispersion in regard to advertising, due to the fact that there is no special law which regulates it. This means that, there are provisions on the subject contained and disseminated within several legal regulations, some that are executed by different administrative authorities, each one within the field of scope and jurisdiction.

Likewise, there is no special law that regulates advertising addressed to children. In most cases, laws which regulate advertisements in Mexico establish general principles executable to all those on the receiving end of advertising and only in some specific cases is there special reference to advertisements addressed to children. In this manner, by evaluating the advertising addressed to this sector, it shall be considered as several provisions contained in several regulatory bodies.

It is important to highlight that in 2012 there were major reforms in regard to advertising, tending to establish clearer rules for the verification thereof, to have a better control and surveillance on behalf the authority and to increase considerably sanctions and precautionary measures in case of misleading advertisements.

On the other hand, there are provisions for advertising self-regulation that rule specifically on advertising addressed to young audiences, which complement the applicable legislation.

In the following sections we summarize the main rules that expressly mention advertising addressed to child audiences.

Legal framework

Definition of a child

The Law for the Protection of Boys, Girls and Teenagers Rights establishes that girls and boys are people under 12 (years old) who are incomplete, and teenagers are the ones who are between 12 years old and 18 (years old) and are incomplete.

Likewise, this law establishes that the purpose of protection for girls, boys and teenagers is to ensure full and integral development, which implies the opportunity of forming themselves physically, mentally, emotionally, socially and morally in equal conditions. Among the guiding principles of protection of this group are the superior interests of childhood, no discrimination whatsoever, equality, the right to have a life free of violence, among others.

Consumer Protection Law

The Federal Law of Consumer Protection regulates the information and advertisements which is transmitted to consumers, by any means or way, related to any good, product or service, excluding those services derived of work relationships, financial services, or services which are not mercantile.

In particular, article 32 of the law establishes that the information or advertisement shall be accurate, verifiable and free of texts, dialog, sounds, images, trademarks, designations of origin and other descriptions that induce or may induce an error or confusion because they are deceptive or abusive.

Likewise, the law defines a deceptive or abusive advertisement as one that refers to features or information related to a good, product or service that may or may not be true, induce to an error or confusion due to the inexact, false, exaggerated, partial, artificial or biased form, in which is presented.

In addition, in August 2012 the Guidelines for the Analysis and Verification of Information and Advertisements, entered into force, the purpose of which is to establish the rules for the interpretation of article 32 of the Federal Law of Consumer Protection.

These guidelines, derived from recent constitutional reforms in regard to human rights, include a special paragraph for advertisements addressed to vulnerable populations, understood as children, elderly and sick.

Guidelines established that the Consumer Protection Agency, the authority in charge of executing the cited Law and Guidelines, shall protect all the time the vulnerable population against the deceptive or abusive information or advertising, therefore in the analysis it shall be verified that the advertisement adheres to the following principles:

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  Considers the inexperience, credibility, confidence of its recipients.

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  Does not take advantage of the characteristics of their condition, among others, psychological or emotional ones.

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  Avoids messages that encourage the dangerous and inappropriate use of the good, product or service advertised, especially in those cases wherein the messages may be easily reproduced.

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  Uses a simple, clear and in its case, a legible language; as well as visual elements and symbols that are understandable.

Added to this, it is important to highlight that the sanctions due to misleading advertisements increased considerably in early 2012, and now may include fines up to about 280,000 USD, and in case of relapse, fines up to 10% of annual gross income obtained by the infringer derived from the commercialization of goods, products or services included in the advertisement.

Health regulation

Meanwhile, the General Law of Health and Regulation of the General Law of Health in Regard to Advertisements grant to the Ministry of Health the faculties of control and surveillance of advertisements referring to health, to the treatment of diseases and to goods or services referred to in said law, such as food, food supplements, alcoholic and non-alcoholic beverages, cosmetics, pesticides, herbal remedies, and cleaning goods among others.

The law and the regulation thereof establish that the advertising of goods regulating products will be subject to the following requirements:

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  Information included in the message must be verifiable.

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  Should not: mislead; hide necessary contradictions; exaggerate the features or characteristics of goods or services; indicate or suggest that the use of a good or the rendering of a service, are determinants of physical, intellectual or sexual features of individuals, provided there is no substantial evidence to prove it.

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  The message must have guiding and educational content; so it must provide sanitary information about the use of goods and the rendering of services.

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  Advertisements shall not ascribe preventive, therapeutic, rehabilitating, nutritional, stimulating or any other kind of qualities which are different to their function or use; indicate or induce to believe explicitly or implicitly that the product has the ingredients or properties which lacks.

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  Advertisements for alcoholic beverages shall not include, within the images or sounds, the participation of children or teenagers nor address to them; beside people younger than 25 years old may not participate nor associate it with activities, behaviors, or characteristics of young people under 25 years old.

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  In advertisements of cleaning goods it may not use children using the good or in situations where their health is in danger.

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  Pesticide advertisements, vegetable nutrients and toxic or dangerous substances may not use children as models.

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  Any advertisements of medicines and herbal remedies employing techniques of caricature that may confuse and induce children to consumption of those products is not authorized.

It is important to mention that the law foresees the possibility of suspending advertising messages when the Ministry of Health determines that the content of the messages affects or induces to acts that may affect public health. Likewise, derived from recent reforms to the cited regulation, anyone interested in advertising any good or service regulated by law, is required to present to the media a copy of the notice or permit for advertising granted by the Ministry of Health. In this manner, there is a greater control of advertising that has implications in regard to health.

Radio and television regulation

The Federal Radio and Television Law and Regulation thereof, through the Ministry of the Interior, regulates commercial advertising that is transmitted by radio or television. This law states that there should be no transmission of advertising of industrial, commercial products, or any activity which deceives the audience or causes any prejudice due to the exaggeration or falsehood within the indication of uses, applications or properties.

In regard to programming addressed to children, transmitted in radio and television, the law mentions that the same shall fulfill, among other things, the following:

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  Promote the harmonious development of children.

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  Stimulate creativity, family integration and human solidarity.

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  Seek understanding of national values and knowledge of the International Community.

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  Promote scientific, artistic and social interest of children.

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  Provide fun and contribute to the formation process of infancy.

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  Commercial broadcasters, by executing beverage advertisements where the alcohol content exceeds 20 degrees, shall refrain from any exaggeration and combine it or alternate it with propaganda of sanitary education and improvement of popular nutrition. The diffusion of this kind of advertisement must not include minors; the goods to be announced cannot really or apparently be ingested before the public.

Self-regulatory rules

As in other countries, in Mexico advertising self-regulation plays an important role. The Council for Advertising Self-Regulation and Ethics (CONAR) is a body set up in 1997 by advertisers, communication media and companies with the purpose of settling controversies in regard to advertising, issuing resolutions based on the Code of Ethics. While the resolutions issued by this body are exclusively binding to their members, there is growing company participation with this body.

CONAR has an Advertising Self-Regulation Code for Foods and Non-Alcoholic Beverages addressed to Children (Code PABI) created in 2008. The purpose of Code PABI is to promote the realization and broadcasting of responsible advertising of foods and non-alcoholic beverages addressed to persons under 12 years old and in this way help to fight the increase of overweight and child obesity which has become a problem of public health in Mexico.

Referring particularly to the Code PABI, the criteria to determine if the advertisement is addressed to children must consider the following:

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  When the package, color and shape of the food or beverage are designed to attract the attention of children and within the advertisement the main character is a minor.

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  When the design of the advertisement message includes colors, voices, music, images and/or sounds which attract the attention of children, as well as when the use of famous personalities, real or fictitious, whose name or image is attractive to minors.

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  When the message is broadcast during programs and communication media where the content is addressed to children.

Among the main criteria of advertisements addressed to children we may highlight that an advertisement:

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  Shall be oriented an educational and promote positive social values such as family, as core and foundation of the society.

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  Shall not include representations of violence or aggression.

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  Shall be clearly distinguishable, no matter the shape. Advertisements shall not refer themselves as programs and shall not use a journalistic format for advertising.

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  Must not contain any statement or visual presentation which directly or by implication, omission, ambiguity or exaggeration induces an error in children about the characteristics of the food or non-alcoholic beverage.

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  Shall not develop any expectation whatsoever in children about the product, such as imposing the notion that the consumption thereof provides superiority and the lack thereof, inferiority.

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  Must avoid the representation of social stereotypes that may cause prejudice, provoking deliberately any kind of discrimination.

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  Shall not create a sensation of urgency to purchase the food or non-alcoholic beverage, nor create a feeling of immediacy or exclusivity.

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  The advertisement that promotes healthy lifestyles shall be based upon the concept of correct diet and food (complete, balanced, sufficient, varied adequate and safe) and shall include, as far as possible, the promotion of habitual practice of physical activity and hygiene.

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  Should not encourage over-consumption or food intake over another.

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  Should endeavor to produce minors with healthy physical bodies.

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  Should refrain from indicating the immediate loss or gain of body weight.

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  Should refrain from using formats or imperative stimulations to persuade upon the intake of food or related non-alcoholic beverages.

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  Images and sounds of the advertisement shall be precise in regard to the representation of the features: flavor, size, content, weight and nutritional properties and health.

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  Benefits attributable to foods and non-alcoholic beverages shall be supported by ascertainable scientific information.

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  Prices must be expressed clearly and specifically. There shall not be used references such as “only” or “exclusively”.

According to the data published by PROFECO in the web page of the consumer, according to CONAR, in 2011 the field of foods and beverages rated 60,221 advertisements, of which 41 percent corresponded to goods addressed to children. Due to the above since 2008, CONAR has taken actions to analyze the advertisement and notify the companies that transgress PABI Code. The scopes of these actions are reflected in CONAR’s figures: in December 2008, 92 percent of the advertisement analyzed transgressed PABI Code, in 2009 down to 25 percent, in 2010 to 12 percent and in 2011 it was just 9 percent.

Conclusion

In Mexico there are provisions for advertising distributed and contained in several legal regulations, executed by different administrative authorities. So, by evaluating advertising addressed to children, it can be seen that there are several provisions contained in several regulatory bodies.

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.

Marina HurtadoBased at Arochi Marroquin & Lindner.