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Food Marketing to Children and Youth: Threat or Opportunity? G Children and Youth Marketing and Advertising Regulations and Guidelines in Selected Countries
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Food Marketing to Children and Youth: Threat or Opportunity? TABLE G-1 Statutory Regulations and Voluntary Guidelines for Television Advertising to Children in Selected Countries Region/Country Statutory Regulations Voluntary Guidelines Specific Restrictions or Guidelines for Television Advertising to Children Africa Regulatory Authorities Self-Regulatory Organizations South Africa Advertising Standards Authority of South Africa Advertisements addressed to or likely to influence children should not contain any statement or visual presentation which might result in harming them, mentally, morally, physically, or emotionally. A child is defined as younger than 18 years of age. Asia Regulatory Authorities Self-Regulatory Organizations China State Administration of Industry and Commerce Advertisements must not impair the physical and mental health of minors. Product placement is discouraged wherever possible. A child is defined as younger than 15 years of age. Japan National Association of Commercial Broadcasters in Japan A child is defined as younger than 18 years of age. Australasia and Pacific Regulatory Authorities Self-Regulatory Organizations Australia Australian Broadcasting Authority Commercial Television Australia Advertising Standards Bureau oversees the Advertising Standards Board and the Prohibits advertising during programs aimed at younger children, restricts the amount of advertising during programming for older children, and limits advertisements featuring
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Food Marketing to Children and Youth: Threat or Opportunity? Region/Country Statutory Regulations Voluntary Guidelines Specific Restrictions or Guidelines for Television Advertising to Children Advertising Claims Board children’s television personalities. A child is defined as 14 years of age and younger. New Zealand Advertising Standards Authority New Zealand Television Broadcasters’ Council No advertisements are allowed to be broadcast on preschool television or Sunday mornings. There is limited advertising in school-age children’s television. Prohibits products from being advertised within a television program that come directly from a program or its licensed characters. Repetition of advertisements is limited per hour and per channel. Philippines AdBoard Europe Regulatory Authorities Self-Regulatory Organizations EUa EU Television Without Frontiers Directive European Advertising Standards Alliance (EASA) International Chamber of Commerce (ICC) Prohibits advertisements to children that (1) exploit their inexperience or credulity; (2) understate the degree of skill or age level required to use or enjoy the product; and (3) contain any statement or visual presentation that could have the effect of harming mentally, morally, or physically. The ICC’s Commission on Marketing and Advertising adheres to the Framework for Responsible Food and Beverage Communications. Minors are defined under national laws. Belgium EU Television Without Frontiers Directive Jury for Ethical Practices in Advertising Prohibits advertising before and after children’s television programs.
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Food Marketing to Children and Youth: Threat or Opportunity? The Ministry of Economic Affairs; Ministry of Public Health; High Audiovisual Council; Flemish Media Commissariat The World Federation of Advertisers oversees the Responsible Advertising and Children Programme See EU. A child is defined as younger than 12 years of age. Czech Republic EU Television Without Frontiers Directive Rada Pro Reklamu Advertising of various content is banned to children that shows them in dangerous situations. See EU. Denmark EU Television Without Frontiers Directive The Market Court; The Consumer Ombudsman; The Consumer Council; The Radio and Television Advertisements Board; The National Food Institute Reklame Forum Prohibits figures and puppets that appear in children’s programs from appearing in advertisements. See EU. A child is defined as younger than 18 years of age. Finland Consumer Protection Act Consumer Ombudsmen Board of Business Practice Advertisements are prohibited that attempt to persuade a child to buy a product through a direct offer. Advertisements are prohibited in which sales pitches are delivered by familiar cartoon characters or children. A child is defined as younger than 12 years of age. France EU Television Without Frontiers Directive Bureau de Vérification de la Publicité Provides several recommendations to ensure that advertising does not exploit the inexperience or innocence of children. See EU.
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Food Marketing to Children and Youth: Threat or Opportunity? Region/Country Statutory Regulations Voluntary Guidelines Specific Restrictions or Guidelines for Television Advertising to Children Greece EU Television Without Frontiers Directive Hellenic Association of Advertising Communications and Greek Advertisers’ Association Enforces restrictions on advertising to children during specific times. See EU. Hungary EU Television Without Frontiers Directive Országos Rádió és Televízió Testület (National Radio and Television Commission) Hungarian Advertising Association created the Hungarian Code of Advertising Ethics Provides guidelines pertaining to advertising made for or featuring children. See EU. Ireland EU Television Without Frontiers Directive Broadcasting Commission of Ireland Advertising Standards Authority of Ireland Radio Telefis Eireann (RTE) RTE prohibits broadcast sponsorship of any children’s programs. See EU. Italy EU Television Without Frontiers Directive Istituto di Autodisciplina Publicitaria (IAP) (Institute for Self-Regulation in Advertising) Enforces advertising guidelines developed for programs featuring children including during cartoons and using cartoon characters before and after the television programs in which they appear. Netherlands EU Directive on Comparative Advertising The Advertising Foundation Bans advertising of alcohol and sweets on television to children. A child is defined as younger than 12 years of age. Norway Norwegian Mass Authority The Consumer Ombudsmen Instituted a ban on advertising to children younger than 12 years of age in 1992.
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Food Marketing to Children and Youth: Threat or Opportunity? Prohibits broadcast advertising before and after children’s programs through the Norwegian Marketing Control Act. Sweden EU Television Without Frontiers Directive The Consumer Ombudsmen Council on Market Ethics Instituted a ban on advertising to children younger than 12 years of age in 1991. Prohibits advertising during children’s programs and on using television characters or presenters in advertisements. United Kingdom EU Television Without Frontiers Directive Office of Communications (Ofcom) Advertising Standards Authority Prohibits children’s television personalities from advertising before a specific time and includes language prohibiting merchandising within two hours of a television program. Created advertising-free children’s television channels. A child is defined as younger than 16 years of age. Latin America Regulatory Authorities Self-Regulatory Organizations Argentina Federal regulations for advertising Camara Argentina de Anunciantes (Argentine Chamber of Advertisers) Association of Advertising Agencies in Argentina, Unified Code of Ethics of the Mercosur Advertising directed at children and adolescents must adhere to established guidelines. Brazil Consumer Defense Code Association of Advertising Agencies in Brazil, Unified Code of Ethics of the Mercosur Self-regulating Advertising Council (CONAR) Advertising directed at children and adolescents must adhere to established guidelines.
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Food Marketing to Children and Youth: Threat or Opportunity? Region/Country Statutory Regulations Voluntary Guidelines Specific Restrictions or Guidelines for Television Advertising to Children Chile Antitrust and Unfair Advertising Competition Commission CONAR Alcohol advertising must not contain messages or be broadcast in media or at times especially addressed to minors and must not encourage them to consume alcoholic beverages. Mexico Attorney General for Consumer Protection Ministry of the Interior Ministry of Health Consejo Nacional de la Publicidad (National Council for Advertising) Guidelines provide direction on how to avoid taking advantage of children’s credulity or lack of experience. Regulations for children’s television advertising have not yet been developed. Paraguay Federal regulations connected to the subject Council for Self-Regulatory Advertising Associations of Advertising Agencies in Paraguay, Unified Code of Ethics of the Mercosur Prohibits publicity of tobacco and alcoholic beverages that use minors as well as characters or people that are representative of children or adolescents. Advertising directed at children and adolescents are advised to follow guidelines. Peru Asociación Nacional de Anunciantes (ANDA) Middle East Regulatory Authorities Self-Regulatory Organizations Israel Ministry of Communications Regulates content and hours of television and radio broadcasting according to the 2001 Law of Classification, Labeling, and Prohibition of Harmful Broadcasts and the 1991 consumer protection law that regulates advertising content directed to minors.
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Food Marketing to Children and Youth: Threat or Opportunity? Kuwait None None Regulations for children’s television advertising have not yet been developed. Saudi Arabia None None Regulations for children’s television advertising have not yet been developed. North America Regulatory Authorities Self-Regulatory Organizations Canada Canadian Broadcasting Corporation (CBC) Broadcast Code for Advertising to Children Canadian Radio-Television and Telecommunications Commission Office de la Protection du Consommateur (Quebec) Advertising Standards Canada The province of Quebec instituted a ban on advertising to children under the age of 13 years in 1980. Restricts the use of puppets and subliminal messages to encourage children to purchase products. CBC prohibits advertising of any kind in programs directed to children under the ages of 12 years. A child is defined as younger than 12 years of age in Canada and younger than 13 years of age in Quebec. United States Federal Trade Commission (FTC) Federal Communications Commission (FCC) Children’s Advertising Review Unit (CARU) The Children’s Television Act restricts advertising during programs targeted at children under the age of 12 years to 10.5 minutes per hour on weekends, and 12 minutes per hour during the week. A child is defined as younger than 12 years of age. NOTE: EU = European Union. aAll EU countries follow the EU Television Without Frontiers Directive. However, certain EU countries also have their own self-regulatory agencies and additional restrictions or guidelines regarding television advertising to children. Some of the countries with regulations specific to children and television advertising have been listed separately from the EU. SOURCES: BCI (2001); Friedman and Dickler (2003); Hawkes (2004); Personal communication. K. Tessmann Diaz. Arochi, Marroquin and Lindner, S.C., Mexico, August 12, 2005, for guidelines on Mexico. Personal communication. Elizabeth Levy. The National Council for the Child, Jerusalem, Israel, November 27, 2005, for guidelines on Israel.
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Food Marketing to Children and Youth: Threat or Opportunity? TABLE G-2 Statutory or Voluntary Regulations for Marketing Approaches Used for Food and Beverage Promotion to Children Selected Region or Country Television Advertising In-School Marketing Sponsorship Product Placementa Internet Marketingb Sales Promotions Africa South Africa X X Asia China X X X India X X Japan X X X Russian Federation X Thailand Australasia and Pacific Australia X X X X X New Zealand X X Philippines X X Latin America Argentina X Brazil X X Chile X Mexico X X Europe Austria X X X Belgium X X X X Czech Republic X X Denmark X X X X Finland X X X X X X France X X X X Germany X X X X Greece X X X X
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Food Marketing to Children and Youth: Threat or Opportunity? Ireland X X X X X Italy X X X X Netherlands X X X X X Norway X X X X Poland X Portugal X X X Spain X X X Sweden X X X X Switzerland X X United Kingdom X X X X X Middle East Saudi Arabia X North America Canada X X X Quebec X X United States X X X X X NOTE: The following definitions were used for the purpose of this table and may differ from terms used throughout the report: television advertising is the use of television as a medium to promote a product or service; in-school marketing is a technique used to spread advertising messages targeted at children while they are in the school environment; sponsorship is the provision of funds and other resources to an event or activity in return for access to the exploitable commercial potential associated with that activity; product placement is the use of any message, logo, object, or prop that appears in a visual or graphic in exchange for payment; Internet marketing is a promotional activity on the Internet to connect consumers to a marketer’s products; and sales promotions are marketing tools used to create an incentive to buy a product or service at the point of sale. aStatutory restrictions on product placement in television programs only; product placement in films is not subject to statutory regulations. bRegulations on Internet marketing with clauses specific to children. SOURCE: Hawkes (2004).
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Food Marketing to Children and Youth: Threat or Opportunity? REFERENCES BCI (Broadcasting Commission of Ireland). 2001. Children’s Advertising Code. Dublin, Ireland: BCI. Friedman AE, Dickler H. 2003. International Advertising Clearance. Amsterdam, Netherlands: Global Advertising Lawyers Alliance. Hawkes C. 2004. Marketing Food to Children: The Global Regulatory Environment. Geneva: World Health Organization. ENDNOTES FROM CHAPTER 6 1. Similarly, the court rejected the claim that McDonald’s had failed to warn consumers about the unhealthy attributes of its food on the grounds that the plaintiffs had not shown that such products “were dangerous in any way other than that which was open and obvious to a reasonable consumer.” Id. at 541. The federal court also found that the plaintiffs had failed to “draw an adequate causal connection between their consumption of McDonald’s food and their alleged injuries.” Pelman v. McDonald’s Corporation, 2003 WL 22052778, at *11 (2003). Plaintiffs failed to answer “pertinent” questions that would help establish causation, including: What else did the plaintiffs eat? How much did they exercise? Is there a family history of the diseases which are alleged to have been caused by McDonald’s products? Without this additional information, McDonald’s does not have sufficient information to determine if its foods are the cause of plaintiffs’ obesity, or if instead McDonald’s foods are only a contributing factor. Id. at *11. The district court was recently reversed on the ground that the plaintiffs ought to be able to pursue discovery on the issue of whether their obesity (and related medical conditions) were caused by McDonald’s deceptive practices. Pelman v. McDonald’s Corporation, No. 03-9010, slip op. at 6 (2d Cir. Jan. 25, 2005). 2. The FTC “will find deception if there is a representation, omission or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment.” Federal Trade Commission Policy Statement on Deception, appended to Cliffdale Associates, Inc., 103 F.T.C. 110, 174 (1984). An “unfair” act or practice is one that “causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.” 15 U.S.C. § 45(n), 2002. 3. The statute defines the term “false advertisement” to mean “an advertisement, other than labeling, which is misleading in a material respect; and in determining whether any advertisement is misleading, there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, sound, or any combination thereof, but also the extent to which the advertisement fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the commodity to which the advertisement relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual.” 15 U.S.C. § 55(a)(1), 2002. 4. See, e.g., 16 C.F.R. § 410.1, 2005, rule on deceptive advertising as to sizes of viewable pictures on television sets; 16 C.F.R. § 239.1-5, 2005, rule on deceptive advertising of guarantees. 5. In assessing products liability claims involving children, for example, courts often distinguish between what can be expected of a “reasonable child” and a “reasonable adult.” See, e.g., Swix v. Daisy Manufacturing Company, 2004 (holding, in a products liability action, that the “reasonable child”—and not “reasonable adult”—standard should apply when typical user of the product is a child); Bunch v. Hoffinger Industries, Inc.,
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Food Marketing to Children and Youth: Threat or Opportunity? 2004 (upholding a trial court’s application of the “reasonable child” standard in a products liability case. In explaining its decision, the court stated “a distinction must be made between an adult’s ability to recognize and appreciate certain risks and a minor’s corresponding ability. Certain conditions considered harmless to adults may not be so to the general class of children who, by reason of their immaturity, might be incapable of appreciating the risk involved.”) 6. Codified as amended in scattered sections of 15 U.S.C. (2002). 7. The Central Hudson test has been applied in very inconsistent ways by the Court itself. Compare, e.g., Posadas de Puerto Rico Associates v. Tourism Company (1986), with Rubin v. Coors Brewing Company (1995). More than a majority of the Justices have indicated their dissatisfaction with the test. See 44 Liquormart, Inc. v. Rhode Island, (1996). Yet the Court has continued to apply the test, with increasing severity, despite its discomforts. See, e.g., Greater New Orleans Broadcasting Association v. United States, 1999; Lorillard Tobacco Company v. Reilly, 2001; Thompson v. Western States Medical Center, 2002. 8. Peel v. Attorney Registration and Disciplinary Commission, 1990; In R.M.J., 455 U.S. 191, 203 (1982) (“Truthful advertising related to lawful activities is entitled to the protections of the First Amendment. But when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse, the States may impose appropriate restrictions. Misleading advertising may be prohibited entirely.) 9. In a pre-Central Hudson case, the Supreme Court suggested that certain marketing or advertising practices aimed at children can be regulated by the FTC, even when no fraud or deception has occurred, because they target “children, too young to be capable of exercising an intelligent judgment of the transaction” and such practices “exploit consumers … who are unable to protect themselves” (FTC v. R. F. Keppel & Brothers, Inc., 1934). 10. See Central Hudson Gas & Electric Company v. Public Service Commission, 1980; Rubin v. Coors Brewing Company (1995); United States v. Edge Broadcasting Company, 1993. 11. Lorillard Tobacco Company v. Reilly, 2001, at 556 (quoting Fla. Bar v. Went For It, Inc., 515 U.S. 618, 632 (1995) (quoting Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 477 (1989). 12. “A commercial advertisement is constitutionally protected not so much because it pertains to the seller’s business as because it furthers the societal interest in the ‘free flow of commercial information.’” (Quoting Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 1976.) 13. “It is only when the decision to censor a school-sponsored [speech] … has no valid educational purpose that the First Amendment … require[s] judicial intervention to protect students’ constitutional rights.” (Quotations omitted.) (Hazelwood School District v. Kuhlmeier, 1988). 14. Red Lion Broadcasting Company v. FCC, at 376, 383, 389 (1969) (holding a broadcast licensee can, consistent with the First Amendment, be required to serve “as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves”); see also Columbia Broadcasting System, Inc. v. Democratic National Committee, 1973. In most areas of First Amendment jurisprudence, the rights of speakers are paramount. In the context of the broadcast media, however, the Court has said, “[T]he people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.” Red Lion Broadcasting Company v. FCC (1969).
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Food Marketing to Children and Youth: Threat or Opportunity? 15. Codified as amended in scattered sections of 47 U.S.C. (2002). 16. 47 U.S.C. § 303a(b) (2002). The Act applies to all television broadcasters including cable operators, home shopping stations, and educational, and noncommercial broadcasters. Policies and Rules Concerning Children’s Television Programming (Memorandum Opinion and Order), 6 FCC Record 5093, paragraphs 4, 16, 44 (1991). The FCC exempts cable operators in circumstances where a “cable system’s passive retransmission of a broadcast signal and its passive role with respect to access channel programming.” Id. at para. 6. The FCC also exempts noncommercial broadcasters from the “record compilation, filing and submission requirements.” Id. at para 45. Since March 2004, the Act has also applied to direct broadcast satellite (DBS). Implementation of Section 25 of the Cable Television Consumer Protection and Competition Act of 1992; Direct Broadcast Satellite Public Interest Obligations, 19 FCC Record 5647, paragraph 48 (2004). 17. Policies and Rules Concerning Children’s Television Programming (Report and Order), 6 FCC Record. 2111, paragraph 3 (1991). 18. 6 FCC Record 5093, paragraph 39. 19. 6 FCC Record 2111, paragraph 44. The FTC also has promulgated rules regulating program-length commercials. These rules mandate certain disclosure requirements for program-length commercials. 20. Congress enacted the Children’s Online Privacy Protection Act (COPPA) in 1998, and the FTC rules implementing the Act went into effect in April 2000. Children’s Online Privacy Protection Rule, 16 C.F.R. § 312.1 et seq. (2005) (implementing COPPA). 21. The FCC also regulates some uses of Internet-related advertising. Under rules promulgated by the FCC, during television programming directed at children 12 years old and under, Internet website addresses can be displayed only if the website offers a substantial amount of bona fide program-related or other noncommercial content, the website is not primarily intended for commercial purposes (including either e-commerce or advertising), the website’s home page and other menu pages are clearly labeled to distinguish noncommercial from commercial sections, and the page of the website to which viewers are directed by the website address is not used for e-commerce, advertising, or other commercial purposes. 47 C.F.R. § 73.670(b) (2004). In addition, website addresses cannot be displayed during a program or the commercials that air during that program if the website uses characters from the program to sell products or services.
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