FRANCE COUNTRY REPORT ON ADVERTISING
TO CHILDREN
By Michel Béjot and Isabelle Setton of Bernard Hertz Béjot

Children are an interesting target for advertisers who noted that, in many instances, habits taken by children last throughout life. French advertisers are said to spend 4 billion French francs each year for advertising space to reach children of under the age of 12.

There are very few cases in France related to children in advertising or advertising to children and it seems that compared to those of other countries, such as Sweden, French regulations are not particularly strict. This means that, if Swedish rules were to be applied in France, French TV commercials and shows would be considerably altered.

1. ADVERTISING TO CHILDREN AS SUCH

1.1. Legal/regulatory framework

1.1.1.General principles

• French regulations

The French criminal code sets a general principle that may if need be, be applied to ads directed to children. Pursuant to the French criminal code, people who:

"make, carry, broadcast [·] or commercialize a message [..] of a pornographic or violent nature [·] that may be viewed by a person underage"

commit a criminal infringement and are subject to up to 3 years of imprisonment and up to a 500,000 FRF fine. This infringement is aggravated in case of use of a telecommunication means.

Other than the one described above, few general principles can be found in French regulations on the topic of advertising and children. Hardly ever has a global coherent approach been adopted and one can find mostly specific provisions applicable on a case by case basis.

Each specific situation has to be reviewed according to generally applicable principles, such as the prohibition of any misleading advertising, as well as to any specifically applicable provisions (see details below).

• French self-regulation

Most of the general principles that French advertisers refer to can be found in the 1989 recommendation adopted by the French self-regulatory body, BVP (Bureau de Vérification de la Publicité).

Although these rules are not directly binding upon advertisers, they represent the standards of the profession and French custom. They are applied by the BVP when same proceeds to the pre-clearing of advertisements voluntarily submitted by advertisers. Further, most of these rules can also be found in the regulations applicable to audiovisual advertising which are detailed below.

» Credulity and inexperience
The BVP recommendation states for example that an ad must faithfully reproduce the value, characteristics, [..], results of the product, that it may not in any way give a judgement on the price of a product (e.g., "this only costs·.") or minimize the age, strength or other qualities required to use the advertised product.

» Preventing damages
The BVP recommendation specifies that ads may not urge children to put themselves in a situation which could cause them a prejudice or present a product in such way that an improper or dangerous use of the product is suggested. For instance, the BVP refused to approve an ad showing a funambulist child on a roof. It argued that such ad could urge children to do the same.

» Social values
The recommendation specifies that ads should not suggest that the possession or use of a product may give children physical, social or psychological superiority over those who do not own or use such product. Further, the BVP also reminds advertisers that ads should not discredit the authority that adults may have on children.

The BVP recommendation also specifies that distant sales, premium sales [·] should not be proposed to children without the authorization of their parents or of the person in charge. This specification relates to the issue of the capacity of children underage to enter into agreements.

In France the legal age for majority is 18. In principle, children under the age of 18 are not empowered to enter into any agreement. Thus, they should not be able to acquire directly any of the products advertised for. In practice, however, the purchase of a number of products commonly used in the day to day life by children under the age of 18 is tolerated. The limit is appreciated on a case by case basis according to generally admitted customs.

1.1.2 Specific products

The products described below are particularly sensitive, especially when children are concerned. You will find below a short review of French rules specifically applicable to advertising for said products directed to children.

• Tobacco
  The French Loi Evin of 1991 prohibits any direct or indirect advertising for tobacco products. This prohibition is enforced in France where one can hardly ever find any kind of promotion in favor of tobacco products or brands. Although children are not specifically referred to in French regulations applicable to tobacco advertising, the prohibition provided for by the law is sufficiently strong to cover any advertising or promotional offers or campaigns directed to children.

• Alcoholic beverages
  French law provides for specific provisions concerning alcoholic beverages and children.

One is the prohibition to directly urge people underage to customarily and excessively drink alcoholic beverages (section 227-19 of the French Criminal Code).

A second can be found in the famous Loi Evin which restricts considerably the possibilities of advertising for alcoholic beverages in France. The Loi Evin provides for an exhaustive list of the authorized modes of propaganda or advertising, whether direct or indirect, in favor of alcoholic beverages (e.g., bill boards).

It specifies the conditions under which advertising for alcoholic beverages is permitted in the press and excludes from the press any publications destined to children. Consequently, no advertising or propaganda, whether direct or indirect, in favor of alcoholic beverages should ever be found in a publication destined to children.

Advertising for alcoholic beverages on TV is prohibited under French law. As for advertising for alcoholic beverages on the radio, the 1992 Decree concerning audiovisual advertising, provides for the times during which such advertising is permitted. For instance, on Wednesdays when most children do not have school, such advertising is permitted only between midnight and 7 a.m. It should also be noted that, as the Internet is not specified in the authorized modes of advertising for alcoholic beverages, many consider that no advertising in favor of alcoholic beverages should be found on the Net.

Finally, the French Code des débits de boissons further specifies that alcoholic beverages should not be advertised on products destined to children.

• Games
  There is no general provision applicable to advertising for games in France. However, French law does specify in certain instances security standards or compulsory information which must be delivered with any advertising on a product.

For instance, following a number of cases of epilepsy linked to the use of video games by children in France, a 1996 Decree was enacted pursuant to which certain caution messages must be found on video games machines or in places where such games are made available to children.

Advertisers must also be reminded to refer to the BVP recommendation which sets general standards for children's games advertising, regarding for instance the description of the game, its size, the precautions necessary for using the game, the price of the game, etc..

• Medicines
  Advertising for medicines is subject to strong restrictions in France.

Advertising is simply prohibited for medicines on prescription,.

For medicines that can be delivered without prescription, French law has implemented a procedure of control and prior authorization which must be followed before launching any advertising campaign. The authority which proceeds with the pre-clearing of the aforementioned advertisements must, inter alia, verify compliance with the following rule: advertising to the public in favor of a medicine may not contain any element which would be directed principally or directly to children. As a result, there is no direct advertising for children's medicines in France.

• Food
  French law provides for specific provisions applicable to infants food advertising. Other than that, no specific provision applies.

• Dangerous products
  Concerning fire weapons, French law provides for the rare specific cases in which, and conditions under which, advertising for such products is permitted. Obviously, any advertising in publications destined to children is prohibited.

When advertising for other dangerous products, one must refer on a case by case basis to any specific regulation and to generally applicable principles such as the ones set by the BVP.

1.1.3 Ways of advertising

• Direct marketing
  No specific regulation governs direct marketing to children. French advertisers refer to provisions applicable to direct marketing in general and ensure that no specific rule applies to the product at stake.

In most instances, we would recommend to check that rules applicable to data protection have been complied with and to bear in mind the issue related to the capacity of children underage (see above).

Some companies send leaflets directly to children with promotional offers, for instance at the beginning of the term. September is the period of the year for the launching of new products directed to children. These leaflet must comply with the generally applicable rules (e.g., not be misleading, not be contrary to decency, etc.). However, in practice it seems that such leaflets are more often directed to the children's parents than to the child himself/herself. What must be avoided is the situation where the child is proposed to buy a good without authorization of his/her parents.

Direct marketing actions are also conducted successfully through children's clubs. This is in principle permitted under French Law provided the rules applicable to children's advertising and to the product at stake are complied with. This allows companies to strengthen their position on the market in developing a more personal relationship with the children (e.g., by distributing presents, samples of new products). For instance this technique has been used for Barbie dolls.


• Promotions within the schools
  In France, advertising or other commercial practices within schools is prohibited in principle.
  
  However, several companies have managed to have their products presented to children within schools by doing this as an educational presentation. For instance, Nestlé launched a campaign destined to enhance the importance of breakfast; this allows the company to present its products at the same time. Signal and Colgate have also been doing the same for a number of years with campaigns on dental care.
  
  The products which are supplied must, however, satisfy certain conditions such as the fact that the material supplied during the presentations must remain educative, respect the freedom of the teacher and be in accordance with the schools' programs.

• TV - radio
  The conditions for audiovisual advertising are specified in the Law of January 18, 1992 as modified and in the Decree of March 27, 1992.
  
  - TV advertising
  The 1992 Decree states that advertising may not cause a prejudice to people underage and that, pursuant to this aim, ads may not urge minors to purchase products or services by exploiting their inexperience or credulity, urge minors to persuade their parents or any third party to buy the products and/or services advertised for, exploit or alter the confidence which children have in their parents, teachers or others or present children without legitimate reason in a dangerous situation.
  
  As stated above, one can note that these provisions are in fact very similar to the ones that can be found in the BVP recommendation. They are interpreted in a permissive way. One could be surprised by the way some advertisements indirectly urge children to have their parents buy certain products. For instance, ads for the promotion of Kinder chocolate are organized around the theme "why do mothers chose Kinder Chocolate for their children"; a mother is staged explaining that when she was a child, her mother used to ·. so she does the same for her own children.
  
  In our view, under other standards, this ad could easily be considered as "urging children to have their parent buy·". In France the prohibition applies to direct urging such as : "tell your parents to buy·." Further under French standards it would be considered that the ad described above is directed to parents rather than to children.
  
  - Radio advertising
  One can hear few ads on the French radio which are directed to children. This may be the result from the Decree of April 6, 1987 which specifies that advertising must in no event exploit the inexperience or credulity of children and teenagers and that children or teenagers must not be the prescribers of products or a services subject of an ad unless there is a direct relationship between them and the product or service at stake.

• Internet
  Advertising to children on the Internet should not, in principle, trigger any specific issue ; regulations normally applicable in France to advertising to children should apply in the same way to advertising to children through the Internet.
  
  In practice, however, the Internet raises a number of issues, amongst which the following ones:
  - do French regulations applicable to children's press apply to publications to children on the Internet ?
  - does French law apply to all ads posted on the Internet ?
  - who is liable of any illegal ad ? etc·

• Lotteries/games
  There are no specific restrictions in France that result from the fact that a game such as a sweepstake or competition is directed to children. On the contrary, advertisers find games a suited means to communicate with children and attract them.
  
  In practice, however, most games provide that the participants must be over 18. Indeed, organizers of games must constantly bear in mind the age of the participants. For instance, there may be an issue when children are requested to give a picture of themselves, or if the prize of the game involves an undertaking that the child can't decide by himself (e.g., if the prize is a journey, a car, etc·). In many instances, organizers provide for the necessary prior authorization of the parents or of the person in charge.
  
  One can also note that in some instances games are directed to children rather than adults (e.g., the best drawing) when in fact the target of the promotion is the adult and the prize at stake better suited for an adult than a child. This approach results from the fact that children enjoy playing much more than adults do and that this allows the whole family to participate in the game.

• Premium
  No specific rule other than the generally applicable rules apply to premium sales directed to children. The premium technique is frequently used in France where premium directed to children are frequently found in cereal packets, washing powder packet or in certain drinks such as syrups. One recent case in France actually concerned the mode of calculation of the value of a premium (a Disney character) which had been inserted in the top of the Tesseire syrup bottle. Indeed, to be admissible premium must not exceed a certain value and the question at stake related to the fact that the license fees paid to Disney had not been included in the calculation of the value of the premium.

• Magazines
  The law of July 16, 1949 regulates children's publications and contains a number of specific rules.
  
  Pursuant to this law, ads inserted in children's magazines must in no event represent a danger for young ones. Further, certain topics are excluded from children's publications (e.g., any illustration or story that praises lies, hatred, or that could inspire ethnical discrimination etc·). In the same way these topics are prohibited from being used in any ad inserted in children's magazines.
  
  The law limits advertising for any magazine or newspaper that may represent a danger to young ones and prohibits the insertion in children's publications of any advertising for publications that may be immoral.

• Billboard advertising
  No specific regulations apply to billboard advertising in view of the protection of children. However, the maire (mayor) has the power to set rules for protecting morality on his/her territory; thus he may prohibit ads that, in his/her opinion, jeopardize law and order. For instance, some maires have used this possibility to prohibit billboard ads for services offering sex over the phone or other similar services.

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

2.1 Cartoons and similar characters

No provision prohibits the use of cartoon and similar characters in ads or promotions directed to children in France.

Consequently, the use of characters such as the Star Wars characters is possible, provided that the rules applicable to copyright protection are complied with.

Concerning the restrictions applicable to product promotion on children's TV programs, it must be noted that under French law, no advertising or promotion can be carried out on television during a specific program outside of specific ad screens. For instance, the person presenting the children's program may not (same applies to any other type of program) advertise or promote a brand or product. Consequently, products and/or brands will be advertised during specific ad screens and not directly in the course of a program. This issue is the subject of a debate in France, especially with the development of the Internet where television channels often auto promote their Internet specific websites during TV programs on the same subjects.

2.2 Famous persons

French law prohibits speakers who present the news to act in any advertisement. Otherwise, there are no restrictions to the use of famous people in advertising even when directed to children. Following the 1998 football world cup many advertisements staged the French team football players. For instance, Fabien Barth?s acted in Mac Donald's ads and Lizarazu in children's biscuits ads (Petit Lu). These ads were very successful. Nothing prohibits in our view a speaker of children's programs to be chosen by a brand for the advertisement of its product. The restriction could come from personal ethics.

2.3 Children

2.3.1 Use of children in advertising for products or services destined to adults

The 1987 Decree prohibited the use of children as principal actors (i.e., focalizing the attention) of audiovisual ads. This provision was suppressed in 1992 for ads on TV; it now applies to advertising on the radio exclusively.

Ads in which children are staged must relate to a product or service which has a direct link with children. This requirement is not easy to apprehend as many ads staging children in fact concern family issues as a whole and not specifically children (e.g., household cleaning products, washing powder, food, cars, insurance or bank services,·). One of the most popular ads in France last year for Evian water pictured computer designed baby children in a swimming pool performing a water ballet.

The 1992 Decree underlines the fact that ads must not stage children in a dangerous situation. A few years ago, an advertising campaign aiming at the protection of children against domestic accidents showed a child approaching a gas cooker on which a saucepan with boiling water could be seen. The young child seemed intrigued by the saucepan handle which was sticking out from the edge of the cooker, just within his reach. The campaign did not show the child burning himself but one could hear the noise of the firemen's engine arriving in the distance. This ad was removed from TV screens and prohibited because it appeared that, even if it did not directly stage a child in a dangerous situation, children did not grasp the sense of the firemen's horn heard in the distance and did not picture the accident which the ad suggested. Young children understood from the ad that touching the saucepan's handle triggered a horn, as if the saucepan were a toy. Consequently, the campaign provoked more accidents than it prevented !

One can note that it is customary for advertisers in France to use pictures of children in printed advertisements even when there is no direct relationship between the product and children (e.g., for perfumes, clothes, services, pens·).

Concerning children's nudity, one can refer either to the criminal offense described above (general principles) or to other criminal infringements related to child pornography. Otherwise, reference could be made to the BVP rules which specify that in case of use of naked children (which is seen in French ads), one must ensure that the staged children act in a natural manner. Consequently, improper or deviant attitudes are not tolerated.

2.3.2 Use of children in advertising for products or services destined to children

The use of children in ads for products directly or indirectly destined to children is very popular in France. For instance, one can often see children in ads for diapers, toothpaste, games, biscuits or other food products such as cheese, morning chocolate drinks, etc·

In many of these instances, children validly touch the product which is advertised for, eat the product when it is food, laugh, say the name of the product.

2.4 Controls of use of children in advertising

The Law of July 12, 1990 and the Decree of September 9, 1992 set the rules/restrictions applicable to the hiring and use of children and teenagers in France for advertising.

The hiring of children by advertising agencies is subject to certain conditions: either a prior authorization has to be delivered by the préfet with the agreement of a commission or the ad agency must have been granted a specific license permitting it to hire children as models.

Before any performance as models, children must be examined by a doctor. As for the duration of the working hours, French regulations provide for different thresholds depending on the age of the children (6 months, 3, 6, 11, 14 and 16 years old) and whether it is during a school term or during the vacations.

The applicable provisions specify that if the child is at school, he/she can perform only during the days or half days of leisure other than Sundays.

The Labor Code also regulates strictly the remuneration conditions for children's performances. A commission decides the amount of the remuneration which will be left at the disposal of the legal representatives of the child, the remaining sums being kept in a sort of escrow account at the Caisse des dépôts et des consignations for the child, until he/she reaches the age of 18.

Section L 211-11 of the French labor code prohibits having children do any performances that may be dangerous to the life, health or morality of children.