Kindermarketing under greater supervision – what changes the Charter of Children Protection Card in Advertising?

Recently adopted (11 September 2019) by the Advertising Council and signatories of the Code of Advertising Ethics, the ‘Charter of Children Protection in Advertising’ is another self-regulatory document following the development of ‘Standards of Food Advertising directed to children’ and ‘Standards of Beer Advertising’. It is an appendix to the Code of Advertising Ethics and is a self-regulatory act developed by advertisers, advertising agencies and broadcasters. It is an important document for the creators of advertising content addressed to the youngest target group or in which child actors take part.

Can Batman in a commercial aimed at children have a negative impact on the young audience?

The question whether the advertising market influences the shaping of children behaviours, not only the consumption ones, seems rhetorical. A long time ago, advertisers noticed the potential of building trust in the brand among the youngest consumers. Also, for these reasons (though not only) advertising reaches for characters known from or similar to fairy tales and creates worlds attractive to the child’s eye.

How strong is the impact of advertising and film messages on the young audience? Although we would very much like to classify stories about American children who, dressed as superheroes, tried to jump off a bed or a building, believing that a supersuit makes flying easier, it turns out that information on this subject should be treated as truthful. Patrick Davies and his collaborators’ article on injuries to children in superheroes’ outfits gives examples of accidents involving boys between the ages of 3 and 8 dressed in Spiderman and Superman costumes caused by falls from a certain height (fortunately, the falls described were without lasting health consequences)[1].

In this context, many questions arise, such as: to what extent is the advertising, film or fairy tale message responsible for ‘suggesting’ dangerous ideas or negative patterns, which children willingly imitate. There is no doubt the problem is the youngest audiences’ lack of awareness that what they see in advertising is a specific creation. A positive example of building awareness of the advertising properties among children is the proposal of the American Federal Trade Commission which for many years has been undertaking educational activities aimed at them. Through play and games the youngest learn to receive advertising messages more critically.

What the Charter for Children Protection in Advertising is?

The protection of children in the context of advertising messages in Poland has, so far, touched the legislative rather than educational level. It is worth quoting the provisions of the Broadcasting Act which states that ‘it is prohibited to broadcast advertisements: 1) directly calling on minors to purchase products or services; 2) encouraging minors to put pressure on their parents or other persons to purchase advertised products or services; 3) exploiting the trust of minors in their parents, teachers and other persons; 4) unjustifiably showing minors in dangerous situations; 5) acting in a hidden way on the subconscious’. A few regulations concerning the youngest audiences were also included in the Code of Advertising Ethics, which on 11 September 2019, after two years of work, was supplemented with detailed regulations concerning children.

The mission of the Advertising Council is to ensure that the advertising message, regardless of where it appears, is honest and consistent with the standards set forth in the Code of Advertising Ethics. Therefore, taking into account the sensitivity of the youngest recipients to the advertising message, the Council went one step further and developed – in cooperation with advertisers, broadcasters and advertising agencies – the Charter for the Children Protection in Advertising.

The Charter is a self-regulatory act – a kind of agreement between entities from a specific industry on a specific issue. It is not a paper of the rank of an act but is of great importance. It is rare for any sector to dictate the rules of the game to itself. Compliance with the Charter and its standards is also intended to protect advertisers from being accused of unethical and illegal activities. Therefore, the Charter is also a buffer zone between the law dictated by the state and the consequences of its violation, and internal rules of the industry, the observance of which may protect against state sanctions. An additional advantage of this type of agreement is its flexibility and the possibility to adapt it to the dynamically changing reality.

The Charter sets new standards

The initiators of the Charter were guided by the main postulate: the welfare of the youngest. In order to achieve this, it became necessary to set new standards and to broaden the scope of activities. The Charter does not only focus on advertising messages to children. It also takes a closer look at those which, because of their form, location and presentation, can be delivered to children. Finally, and this is the biggest innovation, the Charter applies to the work of children as actors in advertising, from casting stage to photography. According to the Charter, the production process must not be too stressful for kids and the content presented must be adapted to their stage of development. It was also crucial for the authors of the Charter to adequately depict the image of a child actor and, as such, a child-friendly social environment of family and peers was recognised.

What conclusion can be drawn from this? Advertising messages involving children should be subject to specific scrutiny and every element of discussion should be carefully considered. As an example, it could be pointed out that too fantastic or controversial an advertising plot is inappropriate for children, as it can negatively affect the their development and lead to a distorted perception of reality. And these are effects which the Advertising Council wants to protect the youngest from.

The Charter in theory and the Charter in practice

It is clear that the very initiative of self-regulation of the advertising market in terms of messages to children (both directly and indirectly) and those where children are present, should be viewed positively. Our doubts are, however, raised by a certain generality of the Charter and a multitude of its vague provisions. They may make it impossible to say whether a given advertising message does comply with the Charter’s regulations or not. Nevertheless, in the case of advertisements covered by the Charter, special attention should be paid and the compliance of the message with the provisions of the Charter should be verified individually.

The Advertising Council should bear in mind, however, that also for the advertising industry any ambiguities (including those resulting from self-regulatory acts) are dangerous. In contracts between clients and advertising agencies, usually the agencies take on the risk of compliance with the law and other acts (including self-regulatory acts) of advertising messages. Therefore, it is the agencies that have to take into account the consequences resulting from doubts about the interpretation of the Charter.

In practice, in the absence of additional guidelines, the scope of the Charter’s regulations will be determined by the decisions of the Advertising Ethics Commission, common courts and administrative bodies. In view of the category of recipients, additional guidelines – preferably containing some examples – are highly desirable.

It should be emphasised that the Charter was created with the participation of the National Broadcasting Council. Therefore, it can be assumed that the Charter will also provide interpretation guidance to the Council.

Legal consequences

Violation of the standards provided for in the Charter will justify submitting complaints to the Advertising Ethics Committee, as well as formulating arguments that a given message is inconsistent with good manners. This may result in legal consequences, in particular with regard to consumer regulations and unfair competition.

For example, violation of the Charter may be treated as an act of unfair competition, for which not only advertisers but also advertising agencies cooperating in the creation of a given campaign are responsible. The consequences of recognising an advertising message as an act of unfair competition may include, in particular, imposing an obligation to make a public declaration of intent, to issue illegally obtained benefits or to pay compensation.

The card is valid – what next?

There is no doubt that the advertising industry, in addition to self-regulatory initiatives (which we consider positive), should also consider educational measures among the youngest. Greater awareness among children of the advertising characteristics will allow to develop a model of an informed and critical young viewer – which will de facto facilitate the functioning of both advertisers and the Advertising Council.

Due to some ambiguities in the Charter, we should be patient and await the decisions of the Advertising Ethics Committee based on the Charter’s provisions or any additional guidelines. We keep monitoring the case and will keep you informed so stay tuned and check on our LSW IP Blog.

The document of the Charter of Children Protection in Advertising is available under this link: Zalacznik-Karta-Ochrony-Dzieci-w-Reklamie

[1] Superhero-related injuries in paediatrics: a case series, 2007 Mar; 92(3): 242-243.