Advertising and marketing to children

Advertising and marketing campaigns are usually designed for the adult consumer but are often seen by children despite the fact their tactics and content are not always appropriate for younger audiences. As a result, there is a patchwork of rules designed to protect children from certain types of marketing and advertising.

Many children are unable to account for commercial context in advertisements, which makes them vulnerable to inappropriate material and exploitative campaigns, yet there is no one size fits all approach. We usually talk about 'children' as under-18s, however in many regulated situations they are under-16s. One five year old may be very different from another, and very different from a 10 year old. This makes regulating advertising and marketing to children particularly complex and it is not always straightforward for businesses to work out where lines should be drawn.

The CAP Code

The UK advertising regulatory system is based on two systems of self-regulation for non-broadcast advertising, and co-regulation for broadcast advertising. The ASA is the UK's independent advertising regulator; it regulates by enforcing advertising codes and there are separate codes for broadcast and non-broadcast advertisements. For the context of this article, the most important is for the non-broadcast code, the CAP Code. While English law defines a child as a person under the age of 18, for the purposes of the CAP Code, this is any person under the age of 16.

The CAP Code does not wholly prohibit targeting advertising at children but it does impose several restrictions and, in general, the Code expects advertisers to consider their audience carefully. The underlying principle for non-broadcast advertising is that they need to be careful when featuring or addressing children in marketing communications.

Section 05 of the CAP Code contains the key rules relating to non-broadcast advertising to children. Marketing communications addressed to, targeted directly at or featuring children must not:

• contain anything that is likely to result in their physical, mental or moral harm
• exploit their credulity, loyalty, vulnerability or lack of experience
• exaggerate what is attainable by an ordinary child using the product being marketed
• exploit children's susceptibility to charitable appeals and must explain the extent to which their participation will help in any charity-linked promotions
• actively encourage children to make a nuisance of themselves to parents or others and must not undermine parental authority
• include a direct exhortation to children to buy an advertised product or persuade their parents or other adults to buy an advertised product for them
• fail to make clear that adult permission is required if a prize or an incentive might cause conflict between a child's desire and a parent's, or other adult's, authority
• fail to make clear that adult permission is required if a prize or an incentive might cause conflict between a child's desire and a parent's or other adult's, authority; it must make clear that adult permission is required if a prize or an incentive might cause conflict between a child's desire and a parent's, or other adult's, authority.

Also relevant to advertising to children is the rule requiring ads to be prepared with a sense of responsibility to the audience and society (Rule 1.3 CAP Code and 1.2 BCAP Code).

To what extent an advert is restricted depends on the method and content of the marketing. There are numerous ways in which a child can be affected by an advertisement. When assessing whether a particular advert or marketing communication will be considered harmful to a child (physically, morally or mentally), the ASA does consider the particular genre or focus of the content.

Unfair commercial practices

In addition to the CAP Code, advertisers and marketers need to take into account the unfair commercial practices legislation when advertising to children. The Consumer Protection from Unfair Trading Regulations 2008 (CPUT) came into force in May 2008 to help protect consumers, including children, from unfair trading practices. The CAP Code reflects CPUT, for example in some of the general rules and those specifically dealing with children, and therefore there is a considerable amount of cross-over between the two. Crucially however, breaches of CPUT can attract more serious penalties than breaches of the CAP Code, as Trading Standards has the power to issue fines and in some cases their investigations can lead to imprisonment.

Under CPUT, there are several 'blacklisted' practices, use of which would mean an advertisement will be regarded as automatically unfair and prohibited in all circumstances. With regard to advertising to children, where an advertisement is regarded as a direct appeal to children to buy advertised products, or, persuade their parents or other adults to buy advertised products for them, it would be regarded as a form of "aggressive sales". This type of advert is regarded as automatically unfair and in breach of CPUT (and would also be in breach of Rule 5.4.2 of the CAP Code). Trading Standards gives the example of a comic book for children stating "read about the adventures of Fluffy the Bunny in this new comic book each week – ask your mum to buy it from your local newsagents". Consent from either the child or parents would do nothing to change this.

Beyond the automatically unfair instances, advertisements may also be considered unfair for the purposes of CPUT if they are misleading. When considering whether marketing or advertising is regarded as a misleading claim or omission, the standard is assessed by reference to the average consumer. Where a practice is directed to a particular group of consumers, the average consumer will be the average member of that group. This means that different practices, and even the same practices in different circumstances, may be found to have different effects depending on whether or not they can reach or affect children. Therefore, where an ad is directed at children, or likely to be seen by children (for example, because it's on on day time television), whether or not the ad is unfair is assessed from the perspective of a child of an average age of that audience.

The test is whether that consumer has made a transactional decision they would not have made but for the advertisement. There are three different types of misleading acts: generally misleading information, creating confusion with competitors' products, and failing to honour a code of conduct. CPUT also applies to misleading omissions where a business has omitted or hidden material information, failed to provide such information in a clear, intelligible unambiguous and timely manner or has failed to indicate the commercial context. These rules mean it is particularly important for marketers to use plain and intelligible language when marketing to children, considering the abilities of an average child to understand the ad and ensuring it is not misleading.

Content-specific CAP Code rules

Sexually suggestive content

The use of sexual imagery or language in any form of advertising draws considerable amounts of complaints to the ASA. According to the ASA, some of these ads are likely to cause serious or widespread offence regardless of where they appear and who they are targeted at. Because of this, when it comes to "overtly sexual" content, outdoor imagery is prohibited. With regard to material considered to be "sexually suggestive" or "mild sexual content", the ASA has concluded that (where deemed not to cause widespread harm or offence) such content should still carry a placement restriction to ensure it does not appear within 100 metres of a school.

To expand, the ASA considers some "light-hearted innuendo" may be acceptable in some circumstances, but the appropriate targeting of these ads is key. Sexual themes or sexually explicit visuals are particularly likely to offend if the choice of medium means that an ad is likely to be seen by people outside the target market. The ASA recently refused to uphold a complaint against Hey Habito Ltd, an online mortgage broker, for using sexual references in its advertising. The crucial factor was that the ad appeared in a lifestyle magazine targeted specifically at adults. The ASA also drew on the fact the ad would be seen as humorous by its readers.

So when it comes to sexual references in advertising and children, no form of sexually suggestive content, regardless of how light-hearted it is, should appear within 100 meters of a school. In general, it seems some light-hearted and humorous references will be acceptable provided they are targeted and do not appear anywhere that could be seen by a child.

Alcohol and gambling

Between 2008 and 2017, children's exposure to gambling advertisements on television increased by 25% from 2.2 ads per week to 2.8 ads per week. The majority of these ads have been for bingo, lottery and scratch cards. Ads for alcohol and gambling should not be targeted at, or likely to directly appeal to under-18s, by reflecting, or being associated with youth culture. Also, they should not imply drinking or gambling take priority in life, make you more popular or successful, or are indispensable. Rule 18.14 of the CAP Code states that marketing communications must not be likely to appeal particularly to people under 18 and should not feature or portray real or fictitious characters who are likely to particularly appeal to under-18s in a way that might encourage the young to drink.

Marketers should therefore exercise caution using toys or toy brands that are familiar to children in these adverts. The ASA has previously upheld a complaint against a late night alcohol delivery service, Franks Solutions, which featured lego-like bricks, on the basis Lego was most familiar to children and would therefore likely appeal to them. Ads for alcohol and gambling should therefore endeavour not to use toys, cartoons or licensed characters which appeal to children (see here for more on the rules relating to gambling and children).

Negative messaging

The ASA regularly considers the social responsibility obligations of advertisers in relation to ads aimed at children and marketers should pay particular attention to ensuring their ads are prepared with a sense of responsibility to their audience and society. The relevant CAP Code rules are Rule 1.3 (Social Responsibility) and 5.1 (Harm). Regardless of who an ad is targeted at, if it can be seen by children due to its placement, then the ASA will expect it to be socially responsible. In its ruling against Channel Four Television Corporation, the use of inappropriate language (even where asterisks were used) was not socially responsible, as it was displayed in outdoor locations that could be seen by children.

In a recent ruling regarding the social media app Popjam, the ASA said that an ad's encouragement to "get likes and followers to level up" could be detrimental to children's mental health and affect their self-esteem, and suggested the ad could cause harm to those under 18 years of age and was therefore socially irresponsible. The ASA's particular concern was that the ad could cause children to develop an unhealthy perception that popularity on social media was inherently valuable which was likely to be detrimental to their mental health and self-esteem. The ad breached BCAP Code rules 1.2 (Social responsibility) and 4.1 (Harm). The ASA is taking a broad approach on these issues so where an ad is targeted at children, marketers should be particularly mindful of their social responsibility obligations and carefully consider the potential negative impacts the messaging of their ad could have on a child.

Food/health

Ads for food and drink products that are classed as being high in fat, salt or sugar (HFSS foods) are not allowed to appear in or on any dedicated children's media. Cadbury (in relation to their Easter egg hunt adverts), Chewits (for posts on their Facebook page featuring the 'Chewitsaurus') and Squashies sweets (for their Squashies world advergame app) were the first companies to have online adverts banned under new rules targeting junk food ads for children.

The ASA rulings said the companies did not do enough to prevent under-16s seeing the content. In summary, the new rules state that ads that directly or indirectly promote an HFSS product cannot appear in children's media or in other media where children make up over 25% of the audience. If the content targets under-12s, ads for HFSS products will not be allowed to use promotions, licensed characters and celebrities popular with children, and advertisers may now use those techniques to better promote healthier options.

Food giant Unilever recently has announced that it will stop marketing and advertising foods and beverages to children under the age of 12 in traditional media, and below 13 via social media channels by the end of 2020. Increasing pressure from the World Health Organisation has meant that, in addition to concerns about breaches of the CAP Code, many companies are taking advantage of the reputational benefits of proactively stopping such advertisements. In 2019, the government ran a consultation regarding the rules for advertising HFSS foods and is currently considering the feedback received. We can expect imminent action in further regulating this field.

Health benefits

Rule 15.1 of the CAP Code states that advertisements and marketing communications that contain health claims must be supported by documentary evidence to show they meet the conditions of use associated with the relevant claim, as specified by the European Commission and claims must be presented clearly and without exaggeration. The UK government is currently considering the position for health claims in the UK if there is a no-deal Brexit, but EU nutrition laws will continue to apply until 31 December 2020. Marketers should watch for future UK-specific health claim legislation pending the outcome of Brexit.

Rule 15.2 of the Code underlines the requirement that regulation of health claims referring to general non-specific health benefits of the nutrient/food for overall good health (eg "good for you" or "healthy") must be accompanied by a specific authorised health claim.

The future regulatory landscape

The latest initiative by the ASA to improve the protection of children is the creation of online avatars. The avatars have been introduced to simulate a child's online profile and presence in order to better capture the type of advertisement a child may be exposed to online. Resultant action as a consequence of this scheme has been taken against gambling and HFSS ads served to these avatars on children's websites and YouTube.

The monitoring identified breaches of the advertising rules by eight brands through ads for HFSS products appearing inappropriately alongside videos on YouTube channels directed at children – Asda, Kellogg's, KFC, KP Snacks, Lidl, Marks & Spencer, McDonalds and Pringles. The brands were contacted by the ASA and asked to take immediate steps to ensure that the ads identified would no longer appear and to provide information on the mechanisms they had in place to ensure their ads are not served inappropriately in future. CAP has also engaged YouTube to ensure all parties understand the findings and can take the action necessary to avoid repeat breaches of the rules. The alcohol sector is also being monitored and the ASA has several follow-on projects in the pipeline.

The ASA has also recently focused its efforts on targeting social media influencers, producing several sets of guidelines to ensure any social media marketing is done in accordance with the CAP Code. As part of this project, the ASA has stated that it regards children under the age of 12 as less able to discern persuasive intent, whereas those over 12 are regarded having an understanding more in line with the ability of adults.

Moving forward, the ASA has shown an increased interest in the regulation of content made available to children online. With a particular focus on social media influencers (building on previously published guidelines) the ASA seeks to protect children from becoming vulnerable to aggressive marketing and advertisements online.

The ASA has also launched its online e-learning portal providing organisations with information on educating its staff about the requirements for marketing and advertising to children.

Businesses should be aware that the ASA regards the protection of vulnerable people (which includes children) as one of its top priorities for 2020, so they should be prioritising compliance with the CAP Code (or BCAP Code, as applicable) and keeping an eye on any new ASA rulings regarding children.

If you have any questions on this article please contact us.