Advertising to Children
Studio Legale Associato Hofer Lösch Torricelli

1.1 Legal/regulatory framework

As to Italian law governing advertising, we can say that the consideration of minors as a particular category of consumers requiring a special protection from advertising messages, has gradually introduced several limitations and prescriptions, in order to guarantee their safeguard. The result is a not systematic set of rules given from both legislation and self-regulation.

1.1.1. General principles

a.) Advertising in general

First of all, as advertising to children is a particular aspect of the whole matter concerning advertising, we have to consider those general principles provided by self-discipline statute, the "Codice di Autodisciplina Pubblicitaria - C.A.P. " (= Code of Advertisement Self-Regulation). In fact, on that purpose, the Code has introduced rules of behaviour applicable to advertisers without any specific consideration to the category of recipients of the messages to which they refer.

The content of the message must respect, at least, the following conditions:

• be honest, truthful and correct and avoid anything likely to discredit it.

• avoid in every form the exploitation of superstition and credulousness and except in justifiable cases, of fear;

• avoid any statements or representations of physical or moral violence or such which can be considered indecent, vulgar or repugnant according to the good state and sensibility of consumers.

• avoid to offend the moral, civil and religious beliefs of citizens as well respect human dignity in all its forms and expressions.

• as to the advertising of products likely to cause danger, particularly to health safety and environment, the message must indicate them clearly, mainly when such dangers cannot be easily recognised; in any case advertisement should not contain descriptions or representations likely to induce consumers to neglect normal safety procedures or to relax their sense of watchfulness and responsibility towards their health and safety and that of others.

• anyway it has to grant the truth of the advertisement: that is to say that advertiser must be able to substantiate, at the request of the Jury or of the Advertisement Review Board, the truthfulness of the data descriptions, statements, illustrations and testimonials used.

b.) Advertising addressed to minors

Rules governing advertising, specifically addressed to minors, are expressively referred to specific products whose use could be dangerous for children or to those media that are considered particularly apt to suggest or persuade minors.

For that, the only general principle, introduced in our system regarding both advertising addressed to minors and the use of children in advertising, is that introduced by Law Decree no. 74/1992 (intended to oppose misleading advertising), according to which: "any advertisement, that can reach children or adolescents, is to be considered misleading when it is - albeit indirectly- such as to form a threat for their safety or take advantage of their natural credulousness or lack of experience or which, in using children and adolescents for the advertisement stunts, abuse the natural feelings of adults towards youngsters" (cp. Art. 6).

General limitations to the use of advertising to minors are also provided by the above mentioned C.A.P. It recommends (cp. Art.11) "special care" to those advertising messages "that are addressed to children and adolescents or which can reach them". Furthermore, it establishes that the contents of these messages must not contain any element that could "cause psychic, moral or physical harm" to children or to adolescents or be such as to "take advantage of their natural credulousness or lack of experience, or their sense of loyalty". It also specifically states that this type of advertising shall not induce youngsters:

• "to infringe generally accepted social behaviour;

• "to perform actions or put themselves into situations that are dangerous;

• "to believe that non-ownership of the advertised product implies inferiority

• "or means that their parents are falling short of their duties;

• "to urge other people to purchase the advertised product".

As to the "guidelines" (i.e. detailed prescriptions, words and approach) that the advertiser has to follow when he intends to advertise a product addressed to children, they are provided only among rules governing the Italian public TV and Broadcasting corporation, RAI (see infra 1.1.4.).

c.) Definition of minors

The basic principle on this issue is that the possibility for minors to enter into agreements before eighteen years old (that is the full age according Art. 2 of Italian Civil Code) is an exception to the general rule, provided in our system only by those special laws governing minors' employment.

The Italian legal system provides a definition of minors concerning those cases in which they are involved as actors in the advertising. The Law no. 977 dated 17.10.1967 concerning Children and Minors Labour Protection (as it has been modified by Law Decree no. 345 of 4.08.1999 implementing the European Directive no. 94/33: Youngsters Labour Protection) generally defines minors as "youngsters under eighteen years old" distinguishing, respectively: a) children: when they are under fifteen or when the time of compulsory education is not yet finished; b) adolescents: when they are between fifteen and eighteen years old and however they are no more under compulsory education (Art. 3).

Usually, the minimum age for the admission to work is determined when compulsory education is finished for minors and anyway it couldn't fall under fifteen years old.

1.1.2. Specific products

Special prohibitions of advertising referring to specific products, whose use could be dangerous or, at least, require special care, are expressly provided for a) tobacco, b) alcoholic drinks, c) toys, and d) medicines.

a.) Tobacco

Advertising concerning tobacco is absolutely banned by Law no. 165 dated April 10th, 1962 which establishes, in general terms and without taking into consideration the age of the "receivers" of messages, that "advertisement of any Italian or stranger tobacco product is forbidden". Following this purpose, Minister of Post and Telecommunication's Decree n. 425 dated 30.11.1991, provides (cp. Art.1) that "TV advertising of cigarettes and any other kind of tobacco product, albeit indirectly realised, ·.is forbidden".

Consequently, the advertising of such products, albeit indirectly, addressed to minors is of course not allowed.

Moreover, great relevance has been gained by a new initiative adopted, together with foreign producers, by the ASSOTABACCO, the Italian association that represents practically the whole category of tobacco industry. From March 16th, 2000 cigarette boxes on sale in Italy will bear the following printed message: "Minors must not smoke". The evident intent is giving protection to minors, making it understood that the decision to smoke must only be made by an adult public capable of making a mature choice. It is interesting to notice that the message, referring to "minors" in general, respects the will of the legislator who, at any time, could change the age at which children come to age.

This labelling campaign against smoking among young runs tandem to a pilot project, which has enjoyed great success in schools. An Italian actress has been involved in an amusing and pleasant advertising in which she explains to young people that smoking "does not help you feel more adult".

b.) Alcohol

Minister of Post and Telecommunication's Decree no. 425 dated 30.11.1991, establishes specific limitations and prohibitions for TV advertising of alcoholic drinks. More precisely, it provides (cp. Art. 2) that "such advertising shall not be addressed expressly to minors nor, especially, shall they show minors intent at consuming the drinks".

As to the self-regulation, the mentioned C.A.P. establishes (cp. Art. 22) that the advertising of alcoholic drinks "must not be addressed, albeit indirectly, to minors".

Furthermore, on July 1997 a draft of bill has been presented to the Italian Senate, entitled "Advertising and commerce of alcoholic drinks". It provides to extend the prohibition to any direct and indirect advertising of alcoholic drinks: a) in any place where children use to go; b) trough the press mainly addressed to children. The draft, already assigned to the competent Committee, has not been examined yet and we are waiting for further developments.

c.) Medicines

Specific provisions for the protection of minors have been introduced concerning the advertising of medicinal products for humans. The already mentioned Decree no. 541/1992, when defining under which condition advertising concerning medicinal could be acceptable, establishes that advertising of medicines to the public at large "shall not include any element which: e)·is addressed entirely or mainly to children".

As to self-regulation, the C.A.P. establishes that (cp. Art. 25) any advertising referring to medicine and medical treatment "must not address children, either entirely or mainly, or induce minors to use the product without adequate supervision".

d.) Toys

As to limitations and prescriptions to advertising of toys, they are only provided by the self-regulation. The C.A.P. establishes (cp. Art. 28) that "Advertisement for games, toys and educational products for children must not mislead:

• in the nature, performance and dimensions of the advertised product;

• on the decree of ability needed in order to use the product;

• on the amount of the expenditure, especially when the purchase of complementary products is needed to make the product work.

In any case, this advertisement must not minimise product price or imply that its purchase is normally compatible with any family budget".

e.) Dangerous products

For all other products, which use could be dangerous, there are not specific provisions yet. Consequently, the advertisement will be regulated by the general provision given by Art. 5 of Decree no. 74/1992 concerning advertisement of product dangerous for the health and safety of consumers combined with the already above-mentioned Art. 6 concerning the misleading advertisement.

In such cases, great relevance is recognised, even as leading precedents, to the decisions adopted by the Authority of Market and Competition, as the body having jurisdiction to grant the admissibility of messages, especially under the point of view of the misleading advertising and unfair competition.

1.1.3 Particularly interesting are some decisions among those adopted by the said Authority.

I.) Rollerblade (Case no. 8077 dated 24.02.2000): the case has been originated from a message diffused by the Benetton Group S.p.a. for the promotion of shoes named grinding rollerblades that consent to roller over metallic surfaces. The message represents a child, wearing such shoes, while is rolling without any protection over a railing.

The Authority, considering that the message promotes the purchase of a product (rollerblades) to which youngsters are particularly interested, and considering that the use of this product, without taking the reasonable care, could be very dangerous, stated that the advertising is misleading according to the general principle coming from Art. 6 of Decree no. 74/92. In fact the message, reaching children or adolescents, could induce them to emulate the showed performance and it could be therefore dangerous for their safety.

II.) Fluid Corrector Cancella Junior (Case no. 7097 dated 15.04.1999): the message of the advertised product has been claimed for the failure to warn the consumers that are mainly minors, that the use of the product could be dangerous for their health. In fact, the fluid corrector contains toxic and hazardous substances that urge that the product has to be used by minors just under the control of adults or however with the due reasonable care. For this reason the Authority stated that the claimed message, concerning a dangerous product (Art. 5 Decree no. 74/1992) commonly used from children and adolescents at school, has to be considered misleading according to Art. 6 Decree no. 74/1992.

1.1.4 Ways of advertisement

J.) RADIO-TV
The discipline governing manners of advertisement, given both by Statute law and by Self-regulation, especially, focus on radio and TV programs themselves as well as advertisement during programs.

Law no. 223 dated 6.08.1990, regulating the public and private television and broadcasting system (and including specific clauses for the regulation of advertisement under Directive no. 89/552), expressly provides (cp. Art. 8/1) that radio and TV advertisements "must cause neither moral or physical hazard to minors, and are not to be shown during cartoon programs".
The same Law adds an explicit prohibition regarding the "broadcasting of programs that could be harmful for the psychic and moral development of minors, that include scenes of gratuitous violence or pornography, that encourage intolerant behaviour based on differences of race, sex, religion or nationality" and further provision that "films which are prohibited to minors under fourteen cannot be shown, either uncut or in part, earlier than 10,30 p.m. or later than 7 a.m.".
Furthermore, as to limitations to the advertising of products, the Minister of Post and Telecommunication's Decree no. 425 dated 30.11.1991, (cp. Art. 3) provides, a general rule, that "to prevent all moral or physical jeopardy to minors ·TV advertisement" must not:

a) directly urge minors to purchase a product or a service, taking advantage of their inexperience or credulousness;
b) directly urge minors to persuade their parents or other people to purchase these products or services;
c) take advantage of the special trust that minors have in their parents, their teachers or other people;
d) unjustifiably show minors in dangerous situations".

As to self regulation concerning radio TV diffusion, first of all, particular relevance is recognised to all the deontological rules provided, in the last ten years by a) The "Chart of duties and rights of televisions journalist towards public".(Rome, July, 1990); b) The "Chart of Treviso on relationship between Information and Minors" (Treviso, October, 1990), which underlines the need of protection of children from every form of violence, damage and mental abuse coming from the information system; c) The "Code of Self Regulation" for harmonising principles and rules observed by commercial televisions to grant to children a balanced development during their growth.(Rome, May, 1993); d) Code of Self Regulation concerning relationship between TV and minors, stipulated in Rome (November, 1997) between public and private broadcasting corporation. Following the intent to safeguard minors, it introduces a system of limitations to the advertising according to three different levels of protection (general, strengthened, specific), corresponding to the different hours of the day.

Furthermore the Italian public broadcasting corporation, RAI, has drawn its specific criteria (so called "Norme SACIS"- SACIS Standards) intended to regulate radio-television advertising and the precautionary examination of its contents.
Substantially these principles follow the general ones approved by the CAP.
In particular, on such issue the Code provides that (Art. 9):
it has to be absolutely avoided that advertising, able to reach children and adolescents, could be a menace for their fantasy and for the balanced development of their personality.
In particular, the Sacis Standards provide that: "in all those cases in which children and adolescents are addressed by the advertisements, or in which they are in some way involved and therefore their particular attention as spectators or listeners is attracted, the messages must be absolutely clear as to the aims pursued as well as to the articulation of the various contents;
wherever the contents are the fruit of imagination, the gap between the sphere of fantasy and that of reality must be made absolutely clear".

As to some specific products SACIS standards provide that:
a) "sanitary towels advertisement is not allowed from 12.a.m. to 14.30 p.m. and from 19 p.m. to 21 p.m.";
b) "alcoholic drinks advertisement is allowed only during programs in the late evening;
c) Pregnant test advertisement as well as condom ones are allowed only after 21.30 p.m.;

m.) Sponsorship

Sponsorship, intended as manner of advertising, is regulated by the Minister Decree no. 581 dated 9.12.1993 concerning Radio-Television Sponsorship and Offers to the Public.

The text has introduced the criteria that have to be respected in sponsoring programs: in particular, in assuring the protection of consumers and, even more, that of minors as recipients of the advertisement, the rule bans absolutely any sponsoring of programs by producers or sellers of a) tobacco, b) alcohol drinks, c) medicines.

1.1.5 Precedents:

Case no. 84 dated 16.02.99 Showbusiness-Ditta Maga Nina di A. Mulonia

The case concerns the TV advertising direct to promote the purchase of a toy gun. The message shows the advertised product as a perfect imitation of the original one (the famous Beretta): it fires salvoes but it has the same technical characteristics. For that, it could be use not only for amusement (it shows a family feasting with shots the New Year), but overall it could be useful for personal safety (it shows the same family during the night, when two thieves enter in the parents' bedroom while children are sleeping. The father fires salvoes with the toy gun and the two men run away). The message has been claimed for the following issues: a) it induces the recipients to neglect normal safety rules and the sense of prudence towards danger; b) it shows ambiguously the nature and the utility of the toy-gun and induces to consider the use of arms as a familiar issue; c) it gives insidious indications for adult behaviour and misguiding and irresponsible suggestions for minors. The special Jury (" Giur" ") of the Advertising Self-Regulation Board stated that the claimed message is illegal according to Art. 11 of the C.A.P. since it is directed to children and adolescents and induces them to perform action or put themselves into dangerous situations. Consequently the Giur" has ordered to cease this advertisement.

Case no. 4722 dated 27.02.1997: San Carlo Junior Chips

The case concerns the TV advertising of fried chips produced by San Carlo. The message shows two children, eating chips, who transform themselves in horrible monsters while a voice says " there is a present inside the chips bag ". In fact when chips are finished, the two children come back to their normal aspect, blow up the empty bag while the same voice says: " Do not open that bag there is a damned present ". The spot finished showing the surprises that could be found inside the bag and two of them are indeed the monsters in which the children had been transformed eating chips. The Authority of Market and Competition has considered that the spot is directly addressed to children and offering a little but concentrated horror show, takes advantage of their credulity, determining a non justifiable exploitation of fear. Consequently the Authority condemned the message as misleading according to Art. 11 of the C.A.P., and prohibited the further diffusion.

2. ADVERTISING OF SPECIFIC PRODUCTS DESTINED TO CHILDREN BY USE OF CHARACTERS

2.1. a.) As to the use of cartoons and similar characters in advertising addressed to children, no legal restriction is to be found and no bill of law or self-regulation is in progress at the moment.

b.) As to this issue, at the moment, there isn't any restriction neither in force nor in progress yet.

c.) The following legal precedent confirms this situation:

Case no. 164 dated 22.05.1998: Imetec hair dryer

The message advertises a hair dryer by the use of the cartoons, showing that if the product comes into contact with water, the danger could be avoided thanks to a child safe electric block. The message has been claimed considering that the cartoons used for the advertising are able to attract the fantasy of minors and to induce them to perform the same showed actions that, if performed with a hair dryer different from the advertised one, could become dangerous for them. The Advertising Self Regulation Giur", examining the case, stated that the use of cartoons is a choice particularly suitable for the peculiar nature of child since it is able to attract his attention to the danger coming from the contact between the hair dryer and the water.

2.2.Famous persons:

2.2.1. No regulation (in force or in progress) is given concerning the use of famous persons in advertising products or services.
As far as we know, there are no relevant precedents on such issue.

2.3 Children:

2.3.1. As to the completely different matter of minors used as performers in advertising addressed to adults, it has to be noticed that it is governed exclusively by self-regulating restrictions.

The CAP imposes the following general principle (cp. Art. 11) "the employment of children and adolescents for advertising messages must avoid any abuse of the natural feelings of adults towards youngsters".

The mentioned SACIS standards too, in dealing with this issue, provide general rules concerning the behaviour of minors involved as actors in advertising, without referring expressly to any specific product. In particular, it establishes that "the partaking of children and adolescents in advertising cannot be used to persuade adults to feel obliged to purchase or consume that product as the proof of their love and sense of duty and responsibility towards children".

Furthermore it clarifies that the advertising messages cannot degrade and discredit those values commonly accepted and related to the sphere of sexuality.

2.3.2. Regarding this issue, once again, the discipline has to been given only by self-regulation: the SACIS standards add the following principles, always without regarding any specific product:

• "the partaking of children and adolescents in advertising is to be balanced according to the type of product advertised;

• it is consented to use children in the nude if the nature of the product advertised and the need of explain its function require it;

• in all cases, the dignity of minors, both as performers or receivers of advertising, is to be safeguarded by avoiding distorting caricatures and creating situations that are wholly spontaneous and natural".

• it is not consented that advertising messages show children and adolescents in unsafe or dangerous situations such as: leaning out of the window, using dangerous products (medicinal, insect-powder, disinfectant), without any control, handling matches or lighters, mechanical or electric instruments that is improperly used could cause injuries".

2.4 Controls of use of children in advertising:

The first provisions to be examined, are those of the above mentioned Law no. 977 dated 17.10.1967 (modified by Decree no. 345 dated 4.08.1999), which contains special regulations for the safeguard of children and adolescents, regarding their work conditions.
First of all, as already mentioned, it is forbidden to employ children under 15 years old. Just exceptionally the Provincial Labour Authority, with the previous, explicit and written consent of their parents (or of the person having paternal authority), can authorise that children be involved in the filming of advertisements.
In all cases:

• no activity can be requested involving any sort of danger on the minor's behalf.

• the employment of minors as performers is, in all cases, subordinated to the observance of satisfactory working conditions, such as to guarantee their health, development and morality;

• different end- of work timetables have been established according to age: children can be required to work no more than 7 hours by day and 35 hours for week; adolescents can be required to work no more than 8 hours by day and 40 hours for week. In any case, the time-work must be followed by an uninterrupted- rest period of two days;

• the minor's physical and moral well being must be carefully safeguarded and negative effects on the fulfilling of their educational obligations be avoided (to this purpose specific limits of the work timetables have been established).

• the violation of the above-mentioned rules is punished with severe penalties (imprisonment for a maximum of six months) and administrative sanctions, and these measures are applicable to whoever has the paternal authority or is in any way in charge of looking after a minor.