Following a BCAP consultation, the law regarding exhortations to children in broadcast adverts has been updated – bringing it in line with EU legislation.
The key piece of UK legislation relevant to broadcast advertising is the Consumer Protection from Unfair Trading Regulations 2008 (CPRs). Amongst other things, it prohibits:
‘Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them.’
The CRPs are an implementation of an EU directive, the Unfair Commercial Practices Directive (UCPD), which contains the following prohibition:
‘Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them. This provision is without prejudice to Article 16 of Directive 89/552/EEC on television broadcasting.’
Directive 89/552/EEC, the Audiovisual Media Services Directive (AMSD), contains a provision that member states can only implement this rule so far as it is consistent with the general principles of EU law.
The rule is implemented in the UK through the Broadcast Committee of Advertising Practice (BCAP). However, it has been implemented, at Rule 5.9 of the BCAP Code, as follows:
‘Advertisements must neither directly exhort children to buy a product or service nor encourage them to ask their parents, guardians or other persons to buy or enquire about a product or service for them.’
BCAP had concerns that this rule went further than the UCPD and the AMSD and was therefore unlawful as it went beyond the general principles of EU law. Therefore a consultation was held, which made the following findings:
- The word ‘encourage’ is used in the BCAP code, whereas the word ‘persuade’ is used in the CPRs – although these words are arguably synonyms – for consistency and accuracy, the BCAP rule should be updated to reflect the CPRs.
- The ‘neither…nor’ construction in the BCAP rule could be construed as preventing two type of mischief (i) directly exhorting to children to buy a product; and (ii) encouraging children to ask others to buy products for them. However in the CRPs, it is clear that the ‘direct exhortation’ requirement applies to both types of mischief – the buying and the persuading others. Therefore the BCAP rule could be read as putting advertisers in breach for even an indirect encouragement. The rule also prohibits encouraging children to ask the parents to enquire about a product; this is not required by the CPRs.
- Article 16 of the AMSD also extends the prohibition to persuading parents to ‘hire’ goods or services, therefore BCAP felt that this word could be added to 5.9 for greater consistency.
The updated version of rule 5.9 of the BCAP code is as follows:
‘Advertisements must not include a direct exhortation to children to buy or hire a product or service or to persuade their parents, guardians or other persons to buy or hire a product or service for them.’