The regulation of advertising to children in Australia – update

Citation

Le Guay, P. (2012), "The regulation of advertising to children in Australia – update", Young Consumers, Vol. 13 No. 4. https://doi.org/10.1108/yc.2012.32113daa.002

The regulation of advertising to children in Australia – update

Article Type: Legal briefing From: Young Consumers, Volume 13, Issue 4

Peter Le Guay and Lai Lynn Choong continue our series of legal briefings in conjunction with the Global Advertising Lawyers’ Alliance by outlining the state of affairs in Australia.

Since our last legal briefing in 2004, the regulation of advertising to children in Australia has changed significantly although it is still governed by consumer protection legislation and federal broadcasting legislation and supported by a number of industry-specific codes of practice and guidelines. However, since 2004 most of the industry codes have been updated and a number of new codes have been introduced. In particular the AANA Code of Advertising & Marketing Communications to Children is now in place, which deals specifically with advertising to children. In addition, Australian trade practices legislation has been revamped, and is now replaced by the Australian Consumer Law (Schedule 2 to the new Competition and Consumer Act 2010).

Legislation

Consumer protection legislation

Previously the consumer protection legislation regulating advertisements to children and advertising generally in Australia involved the combination of the federal Trade Practices Act 1974 (TPA), and the corresponding Fair Trading Acts of the eight states and territories of Australia. However, on 1 January 2011, the new Australian Consumer Law (ACL) commenced, which is a single, national system replacing the pre-existing national, state and territory consumer laws. It is found in Schedule 2 to the Competition and Consumer Act 2010.

The new ACL applies more broadly, and applies to all “persons” as well as corporations (as was the case under the TPA). It includes many similar consumer protection provisions as was available under the TPA, such as a prohibition on persons from engaging in conduct that is misleading or deceptive, or is likely to mislead or deceive. In addition, persons are also prohibited from making certain false or misleading representations in relation to the promotion by any means of the supply or use of goods or services. In both situations civil remedies are available (including restraining orders and damages), and for false or misleading representations criminal sanctions are also applicable by way of the imposition of substantial fines. The ACL also introduced new powers for the national regulator, the Australian Competition and Consumer Commission (ACCC), including the ability to issue substantiation notices, public warning notices and infringement notices as well as seeking significant civil pecuniary penalties from the courts.

Broadcasting legislation

Since 1 July 2005, the Australian Broadcasting Authority and the Australian Communications Authority merged to become the Australian Communications and Media Authority (ACMA). ACMA is responsible for, among other things, promoting self-regulation and competition in the communications industry. It assists the television, radio and internet industries in developing their codes of practice, as well as developing and administering programme standards about Australian content in children’s programmes on commercial television. The Children’s Television Standards (CTS) are an acknowledgement that children require special consideration in areas such as advertising and the presentation of material that may be harmful to them. The CTS was updated in 2009, which maintained, clarified or strengthened the CTS 2005 provisions regulating advertising.

The CTS 2009 distinguishes between two types of children’s programmes namely, C programmes (for children aged up to 14 years) and P programmes for pre-school children (for children who have not yet started primary school). The C and P classifications also establish specific broadcast time bands which are subject to a range of content and other restrictions as set out in standards 20-36 of the CTS and include such things as:

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  what is regarded as suitable material for both programmes and advertisements;

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  classification of advertisements;

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  maximum advertising time;

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  giving or offers of prizes;

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  separation of advertisements and sponsorship announcements;

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  repetition of advertisements;

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  content of advertisements;

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  undue pressure in advertisements;

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  clarity of presentation in advertisements;

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  disclaimers and premium offers;

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  competitions;

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  promotions and endorsements by programme characters;

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  advertising of alcoholic drinks.

Other legislation

Other legislation also includes provisions specific to advertising for children. For example, regulation 17 of the Lotteries and Art Unions Regulation 2007 (NSW) prohibits the publication of lottery advertising that depicts children participating in a lottery activity.

Codes of practice and industry guidelines relevant to children

The various industry-specific codes of practice and guidelines relevant to advertising to children usually form part of a broader industry-specific code of practice or guidelines, and generally are not legally binding. They are, however, an integral part of the advertising self-regulation system in Australia, and advertisers and marketers in Australia are expected to adhere to and comply with them. Sanctions vary from code to code though in certain media, such as broadcasting, failure to comply with the provisions of a code generally will mean that the proposed advertisement will not be cleared for broadcasting to the general public. Without clearance approval, broadcasters in Australia will not broadcast an advertisement.

AANA Code of Ethics

The Australian Association of National Advertisers (AANA), the peak advertising industry body in Australia, developed an advertiser code of ethics in the late 1990s to ensure that advertisements are “legal, decent, honest and truthful”, and that they have been prepared with a “sense of obligation to the consumer and society and fair sense of responsibility to competitors”. In 2006, the AANA introduced the AANA Food & Beverages Advertising and Marketing Communications Code (AANA Food and Beverages Code) and in 2008, the AANA Advertising & Marketing Communications to Children Code (AANA Children’s Code). These codes are incorporated into the AANA Code of Ethics (which was updated with effect from 1 January 2012) and together they are administered by the Advertising Standards Bureau (ASB).

AANA Children’s Code

The AANA Children’s Code applies in respect of advertising or marketing communications (including any matter in any medium or any activity in Australia) directed primarily to persons 14 years old or younger. The AANA Children’s Code deals with matters concerning:

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  compliance with prevailing community standards;

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  factual presentation of material;

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  placement;

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  use of sexual imagery or sexualisation of children;

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  safety;

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  social values;

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  undermining parental authority;

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  accurate presentation or pricing;

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  use of qualifying statements;

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  competitions;

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  use of popular personalities;

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  offers of premiums;

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  alcohol;

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  privacy;

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  food and beverages.

AANA Food and Beverages Code

The AANA Food and Beverages Code also have some provisions, which deal specifically with advertising to children aged 14 or younger. It requires that advertising or marketing communications to children should:

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  be particularly designed and understood by those children;

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  not improperly exploit children’s imaginations based on an intent to encourage children to consumer excessive quantities of food or beverage products;

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  not state or imply that a particular product will afford physical, social or psychological advantage over other children;

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  not undermine the role or parents or carers in guiding diet choices;

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  not include any appeal to children to urge parents to buy a product for them;

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  not feature ingredients or premiums (such as free gifts) unless an integral element of the product being offered.

Responsible Children’s Marketing Initiative – Australian Food and Grocery Council

The Australian Food and Grocery Council (AFGC) developed the Responsible Children’s Marketing Initiative (RCM Initiative) together with the AANA as part of the system of advertising and marketing self-regulation in Australia, which came into effect from 1 January 2009. It is also administered by the ASB. Participants of the RCM Initiative agree not to advertise food and beverage products to children under 12 in media unless:

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  the products represent healthy dietary choices, consistent with established scientific or Australian government standards; and

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  the advertising/marketing activities reference, or are in the context of, a healthy lifestyle designed to appeal to the audience through messaging that encourages good dietary habits and physical activity.

The RCM Initiative also deals with advertising to children under 12 years of age concerning the use of popular personalities and licensed characters, product placement, use of products in interactive games, advertising in schools and use of premium offers.

Australian Quick Service Restaurant Industry Initiative for Responsible Advertising and Marketing to Children

The AFGC also developed the Quick Service Restaurant Initiative for Responsible Advertising and Marketing to Children (QSR Initiative) together with the AANA, which commenced on 1 August 2009. A number of the leading quick service restaurants in Australia, including McDonald’s, KFC, Pizza Hut, Hungry Jack’s, Oporto, Red Rooster and Chicken Treat are participants of this initiative. The QSR Initiative requires advertising and marketing communications for food and/or beverages to children (under 14 years of age) to:

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  represent healthier choices (as determined to a defined set of nutrition criteria); and/or

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  represent a healthy lifestyle by encouraging healthier choices and physical activity.

The QSR Initiative also contains similar provisions as those in the RCM Initiative in relation to use of popular personalities and licensed characters, product placement, use of products in interactive games, advertising in schools and use of premium offers. It also contains additional provisions relating to on-pack nutrition labelling and availability of nutritional information.

A new version of the QSR Initiative is due to come into effect on 1 November 2012. The main change will be the requirement that advertising and marketing communications to children represent both healthier choices and a healthy lifestyle.

Commercial radio codes of practice and guidelines

The Commercial Radio Codes of Practice and Guidelines 2011 are binding on all commercial radio licensees. The code of practice in respect of live hosted entertainment programs specifically addresses the special vulnerability of children. It prohibits the treatment of children (aged under 16 years) and participants generally in these programs in a demeaning or exploitative manner.

The other codes and guidelines apply generally in respect of broadcasts to persons of all ages and do not make any specific references to advertising to children although, among other things, they prohibit a licensed radio broadcaster from broadcasting a programme which involves the misuse of alcoholic liquor or the use of illegal drugs, narcotics or tobacco. Furthermore, licensed radio broadcasters must not broadcast a feature programme which involves an explicit sexual theme, unless it is broadcast between the hours of 9.30 p.m. and 5.00 a.m. and an appropriate warning is made prior to the commencement of the programme and at hourly intervals during the broadcast of the programme. In addition, advertisements must not be presented as news programmes, or any other type of programme, and must comply with all other codes of practice so far as they are applicable.

Commercial television industry code of practice

The Commercial Television Industry Code of Practice 2010 was developed by FreeTV Australia, the industry group which represents all of Australia’s commercial television broadcasting licensees. The code regulates the content of commercial television in accordance with current community standards, and in particular ensures that viewers are assisted in making informed choices about their own and their children’s television viewing. It operates alongside the ACMA’s CTS 2009.

The code also assists in the regulation of the classification and placement of commercials and community service announcements. All television commercials and infomercials must be classified before they can be broadcast. Classification is conducted by Commercials Advice Pty Ltd (CAD) in accordance with the code. The code is supplemented by the A-Z Television Production Checklist developed by CAD, which provides a guide to the main legislative requirements affecting television commercials and detail on the placement codes applying to advertising material.

In relation to children, the CAD checklist confirms the requirement for advertisements to comply with the ACMA’s CTS 2009 including standards 25 and 30-36 inclusive which deal with commercials or community service announcements directed to children. It also provides guidelines in respect of the prohibition under CTS standard 25 of the presentation of “images or events which depict unsafe uses of a product or unsafe situations which may encourage children to engage in activities dangerous to them”. These sorts of activities include the following:

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  children and bicycles;

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  children and dangerous substances;

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  children and fire, electricity and explosives;

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  children and heights;

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  children and road safety.

In addition, Australia’s two public broadcasters, the Australian Broadcasting Corporation (ABC) and the Special Broadcasting Service Corporation (SBS), both have their own individual codes of practice (although the ABC is commercial-free).

Subscription Television Guidelines

The Australian Subscription Television and Radio Association (ASTRA), which represents the Australian subscription television licensees has developed a number of codes of practice, including the Subscription Broadcast Television Code (SBTC).

The SBTC contains requirements regarding content and placement of advertisements and imports the provisions of the AANA Code of Ethics, the AANA Children’s Code and the AANA Food and Beverages Code.

Section 6.3 of the SBTC provides that, in respect of advertising to children (aged 14 or under):

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  no products/services may be advertised (or advertising styles deployed) that could place children in physical, mental or moral jeopardy;

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  advertising must be clearly distinguishable from the programming in which they appear;

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  advertising should not seek to exploit children’s innate credulity, loyalty and sense of fair play;

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  advertising involving the use of premium rate telephone services will include the basic terms of any competition and information about the cost of the call in a form which children can reasonably understand;

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  each channel which broadcasts children’s advertising should publish its own code specifically addressing such.

In addition, section 6.5 of the SBTC requires licensees to take into account the intellectual and emotional maturity of its intended audience when scheduling advertisements.

Telephone Information Services Standards Council code of practice

The Telephone Information Services Standards Council (TISSC) was an independent self-regulatory body funded by Telstra, which regulated premium rate telephone services. Its code of practice contained some provisions for the protection of children. However, due to a declining premium rate number industry, the funding was terminated and since 30 June 2012, TISSC has ceased operating and complaints are now forwarded to the Telecommunication Industry Ombudsman Office. However, at the time of writing it is not clear whether any such complaints will continue to be assessed by reference to TISSC’s code of practice.

Australian Direct Marketing Association’s online marketing guidelines

The Australian Direct Marketing Association (ADMA) developed and administers the Direct Marketing Code of Practice 2006, which addresses the collection of information from, and content of commercial communications directed at, minors. These provisions are directed at prohibiting the exploitation of children’s credulity, loyalty, vulnerability or lack of experience and the depiction of minors in hazardous situations and promotions which offer prizes which may raise issues between minors and parents (e.g. holidays and pet animals). The code also requires the display of a notice informing minors that parental consent is required and should be given when personal information is collected from minors.

The internet industry code of practice

The Internet Industry Association (IIA) Code of Practice Content Services Code 2008 applies to hosting services providers, live content service providers, links service providers and commercial content services providers who have an Australian connection. It places an obligation on these providers to promote online safety, including the provision of information and advice to assist parents to deal with safety issues associated with and controlling access to content (especially chat services) and the use of warnings and safety information for age restricted access content.

In addition, the IIA Code for Industry Co-Regulation in Areas of Internet and Mobile Content 2005 requires mobile carriers and content providers to take reasonable steps to provide end users with information about methods of supervising and controlling children’s access to mobile content, contains provisions requiring content hosts and mobile carriers to take reasonable steps to ensure that restricted content is not provided to minors (aged under 18 years), and requires ISPs to take reasonable steps to ensure that internet access accounts are not provided to minors without consent of responsible adults.

Mobile Premium Services Code

The Mobile Premium Services Code 2011 was developed by Communications Alliance Limited and is administered by the Telecommunications Industry Ombudsman. The code prohibits advertisements for premium messaging services specifically targeting children below the age of 15. Additionally, if a placement context or content of the premium messaging service is likely to attract a significant number of persons under the age of 18, a warning to the effect of “if you are under 18 you must ask the account holder before using this service” must be placed in the advertisement.

Therapeutic Goods

The Therapeutic Goods Advertising Code 2007 is mandatory and regulates the advertising of therapeutic goods. In particular, the code prohibits advertising of therapeutic goods to minors (being persons under 18 years of age), except as specified. The exempted goods currently specified include tampons, acne medications, sunscreens, condoms and personal lubricants, bandages and dressings, devices for management of chronic conditions under medical supervision, cold sore preparations, lip balm and unscheduled anti-dandruff preparations.

Alcohol and tobacco

Alcohol advertising in Australia is self-regulated with advertisers subject to a voluntary code, the Alcohol Beverages Advertising (and Packaging) Code 2009. In particular, this code prohibits advertising which has a strong or evident appeal to children or adolescents and accordingly requires adults featured in advertising to be over 25 years of age, and that children and adolescents may only appear in advertisements in natural situations where there is no implication that the depicted children and adolescents will consume or serve alcohol beverages.

Tobacco advertising is strictly controlled in Australia through both federal and state (or territory) legislation, and is generally prohibited. The aim of the legislation is to limit the exposure of children and young people to any form of persuasion to smoke and the legislation also prohibits the association of smoking with social success, business advancement and sporting prowess.

Peter Le Guay and Lai Lynn ChoongPeter Le Guay is a Partner and Lai Lynn Choong is a Solicitor. Both are based at the Intellectual Property and Advertising Law Practice Group at Thomsons Lawyers in Sydney, Australia.

Acknowledgements

Published in conjunction with the Global Advertising Lawyers’ Alliance (www.gala-market-law.com). GALA is an alliance of lawyers located throughout the world with expertise and experience in advertising, marketing and promotion law.