Children in Advertising Regulation in Ireland
by Duncan Grehan & Partners Solicitors

1.1.1 General principles in relation to advertising to minors

General principles in relation to all advertising to minors are contained in the Code of Advertising Standards for Ireland (1995) drawn up by the Advertising Standards Authority of Ireland (ASAI) a self regulatory body established by the advertising industry in 1981. It keeps all advertising in Ireland under review and adjudicates complaints. It has a similar function as regards its Code of Sales Promotion Practice. The basic premise is that advertisements must be ' legal, decent, honest and truthful'. The advertising code places particular emphasis on the need to respect the principle of the equality of men and woman and the dignity of all persons especially those who are vulnerable by reason of age or other circumstance.

Section 5.1 states that 'An advertisement should contain nothing that is likely to result in physical, mental or moral harm to children'

Section 5.2 goes on to state that 'An advertisement should not exploit the loyalty, vulnerability or lack of experience of children'

Section 5.3 states that advertisements addressed to children:

(a) should not feature products that are unsuitable for children.

(b) should make it easy for them to judge the actual size, characteristics and performance of any product advertised, and

(c) should not exaggerate what is attainable by an ordinary child using the product.

The Code of Sales Promotion Practice contains similar provision to the advertising Code in relation to children and advertising

Television and radio are also covered by Section 4 of the Broadcasting Act 1990 which provides that:

'The Minister may draw up and may amend from time to time as he thinks proper, codes governing standards, practice and prohibitions in advertising, sponsorship or other forms of commercial promotion in the broadcasting services and the Authority, every sound broadcasting contractor, and the television programmes services contractor shall comply with every such code in relation to the its broadcasting services.'

In accordance with Section 4(3), the Minister has consulted with both the State Authority (RTÉ) and private broadcasting facilities (through the Independent Radio and Television Commission) in the drawing up in 1995 of a Code of Standards, Practice and Prohibitions in Advertising and other forms of Commercial Promotion (hereafter 'Television and Radio Code').

The Television and Radio Code provides for the following in relation to Children and Advertising:

• Advertisers must exercise the utmost care and discrimination with regard to the content and presentation of advertisements transmitted during breaks within or near or adjacent to programmes designed for children

• Advertisements shall not exhort children to buy a product or service by exploiting their inexperience or credulity

• Advertising shall not exploit the special trust minors place in parents teachers or other persons

• Advertisers shall not directly encourage minors to persuade their parents or others to purchase or make enquiries about the goods or services being advertised

• Advertisements shall not unreasonably show children in dangerous situations

The national broadcasting authority Radio Teilifis Éireann (RTÉ) also publishes its own internal code which among other things includes almost four pages of rules specifically listed to protect the interests of children. These are divided into three sections: the child Audience, the child in Advertisements and Advertisements for Toys and Games. Generally 'No product or service may be advertised and no method of presentation may be used in association with a programme which large numbers of children are likely to see, which might have any harmful physical, mental or moral effects on them. No method of advertising may be employed which takes advantage of the natural credulity and sense of loyalty of children.'

1.1.2 Legislation & self regulation concerning specific products:

Tobacco

• The Tobacco Products Act 1978- restricts media in which such advertising may be used both to adults and children

• The Television and Radio Code: Prohibits Tobacco Advertising

Alcohol

• The ASAI Code of Advertising Standards has a section which deals with the problem of Children, Advertising and Alcohol in Section 6.4 Advertisements should not be directed at young people or in any way encourage them to start drinking. Accordingly:

  (a) Anyone depicted in an alcohol advertisement should appear to be over twenty-five.

  (b) Advertisements should not feature real or fictitious characters who are likely to appeal particularly to people under eighteen in a way that would encourage them to drink.

Toys

• General provision 5.3.a of ASAI code (above) could apply to toys.

• RTÉ Internal Code Sec. 3. 'Advertisements for Toys and Games must not mislead, taking into account a child's immaturity of judgement and experience'

Medicines

ASAI Code Section 5.1.e 'Children should not be shown using or in close proximity to dangerous substances or equipment without direct adult supervision. Examples include·..medicines.'

Food

• No specific provisions in relation to children and advertising.

Dangerous products:

• The Television and Radio Code:
  
  'Advertisements should not without justifiable reason depict or describe situations which show dangerous practices or a disregard for safety. Special care should be taken in advertisements directed towards or depicting children'

• ASAI Code:

  a) 2.28 An advertisement should not encourage dangerous behaviour or show unsafe practices except in the context of promoting safety. Particular care should be taken with advertisements directed at or depicting children.

  b) 5.3.1.a: 'An advertisement to children should not feature products that are unsuitable for children'

Health

• The Television and Radio Code: 'Special care should be taken in advertisements directed towards or depicting children'

• ASAI Code: 3.11 An advertisement may promote vitamin and mineral supplementation to certain categories of people, e.g. those who eat nutritionally inadequate meals, the elderly, children and adolescents, convalescents, athletes in training, those who pursue physically very active occupations or recreations, women of child-bearing age and dieters.

Beauty products

• No specific provisions in relation to children and advertising

Precedents:

The majority of complaints to the ASAI relate to children and alcohol. The fear that advertising encourages 'under age' drinking is of primary concern to the general public.

Examples of complaints:

(a) Radio Commercials:

Two radio commercials by Advance Pitstop were recently the subject of a number of complaints. Among the complainants were a school principal and parents of adopted children. Both commercials featured a young child discussing the effects on her family of their car failing the National Car Test. The child spoke of her parents ceasing to talk to each other, of the possibility of one parent going to stay with a relative, of the child herself having to walk to school and the child expressed the view that sometimes she wished she were adopted. The complainants objected to the advertisements on a number of grounds. The primary objection related to the reference to adoption and some complainants felt that this reference was offensive and in poor taste and could imply that adopted children were somehow second class or at least in a position that was less desirable than that of natural children. The advertisements were also objected to on the grounds that they were negative in relation to parental-child relationships and it was felt to be undesirable to have a small child discussing a parental falling-out about car testing. One complainant objected to the portrayal of a power struggle between the child's parents and found it to be unpleasant and unedifying. One complainant objected to the reference that no child should ever have to walk to school.

The complaint was upheld by the ASAI under Art 5.1:

"An advertisement should contain nothing that is likely to result in physical, mental or moral harm to children"

The Code of Advertising Standards requires that an advertisement should contain nothing that is likely to cause grave or widespread offence. Children should not be portrayed in a manner that offends against accepted standards of good taste and decency. The Complaints Committee considered that the references to adoption in the way in which was done in the advertisement was in breach of the Code. They also considered that the portrayal of a young child discussing relationships between the child's parents in the manner in which it was done in the advertisement was in breach of the Code. They did not consider that the reference to walking to school was in breach of the Code.

(b) On Drip Mat Advertising:

In January 2000 a drip mat advertising for Sony Playstation carrying the words 'Fuck progress by proxy' was the subject of objections. One complainant felt that while public bars and clubs were not children's playgrounds, they were accessible by children, a group at whom Playstation advertising is aimed. Another complainant considered the blatant use of bad and unnecessary language implied that it was "cool or rebellious" to connect PlayStation with offensive language. He did not consider it appropriate that a sports club, which promoted the values of sport to a young age group, should be used as advertising media advocating unnecessary language to young and impressionable children. While the complaint was upheld the ASAI did not cite the provisions of the Code which specifically relate to children, instead choosing to rely on Art 2.13:

"An advertisement should contain nothing that is likely to cause grave or widespread offence. Particular care should be taken to avoid causing offence on grounds of age, disability, gender, race, religion, sex or sexual orientation." This Article is often relied upon in cases where the detrimental effects of "offensive" copy on children are cited by complainants.

1.1.4 General legislation regarding manners of advertising;

Direct marketing: This is covered by the Code of Practice on Direct Marketing (Irish Direct Marketing Association)

TV- Radio: Covered by the ASAI Code and the Television and Radio Code See para. 1.1.1 above

Internet: Currently supervised by the ASAI following on from European Advertising Standards Authority recommendations. This area will be dealt with more fully in a new version of the ASAI Code currently under preparation.

Lotteries: Gaming and Lotteries Act 1956 prohibits unlicensed lotteries to adults and children alike. This area is currently under reform

Premises/ In school grounds: The location of advertising on sites in areas of high visibility to children has been a factor in ASAI decisions on whether an advertisement contravened their code concerning children

Magazines: This area is covered by the ASAI Code Para. 1.3 (a)

2. Advertising by use of Characters /Use of Famous Persons in Advertising to children

There are restrictions in the ASAI code on the use of characters and famous persons in relation to advertising of alcoholic drinks to children:

Sec 6.4(b) of the ASAI code provides that: Advertisements should not feature real or fictitious characters who are likely to appeal particularly to people under eighteen in a way that would encourage them to drink.

The Radio and Television Code contains indirect restrictions on programme tie ins in that the code specifies that if a children's programme is under 30 minutes long, it shall not be interrupted by advertisements.

2.3 Use of Children in Advertising

The restrictions on the use of children in advertising do not differentiate between the use of children in advertising to other children and the use of children in advertising to adults.

The ASAI Code provides at Sec5.1

An advertisement should contain nothing which is likely to result in physical mental or moral harm to children:

a) Children should not be portrayed in a manner that offends against accepted standards of good taste and decency

b) They should not be encouraged to enter strange places or talk to strangers.

c) They should not be shown in hazardous situations or behaving dangerously in the home or outside. Children should not be shown unattended in street scenes unless they are old enough to take responsibility for their own safety.

d) They should not be portrayed engaging in anti social behaviour; where they appear as pedestrians or cyclist they should be seen to be observing the rules of the road.

e) They should not be shown using or in close proximity to dangerous substances without direct adult supervision.

f) An open fire in a domestic scene should always have a fireguard clearly visible when a child is included in the scene.

The RTÉ Internal Code restricts the use of children in advertisements in the following categories

(a) Employment: governed by section 13 of the Status of Children's Act 1934

(b) Safety, any situation in which children are to be seen or heard in advertisements must be considered carefully from the viewpoint of safety. The Code goes on to list 6 such scenarios.

(c) Good Manners and Behaviour, children must generally be well behaved

2.4 Employment of Child Actors

Child actors come under an exception to the Protection of Young Persons in Employment Act 1996 corresponding to Sec 5 of Council Directive 94/33/EC:

3. (1). (2) The Minister may, by licence, authorise in individual cases, the employment of a child in cultural, artistic, sports or advertising activities which are not likely to be harmful to the safety, health or development of the child and which are not likely to interfere with the child's attendance at school, vocational guidance or training programmes or capacity to benefit from the instruction received.

3. (1). (3) The Minister may, by regulations, authorise the employment of children over the age of 13 years in cultural, artistic, sports or advertising activities which are not harmful to the safety, health or development of children and which are not likely to interfere with their attendance at school, vocational guidance or training programmes or capacity to benefit from the instruction received.