Advertising and Children in Sweden
Wistrand Advokatbyrå

1 Advertising to Children as such

1.1 Legal and Regulatory Framework

1.1.1 General Principles

1.1.1.1 The Swedish Marketing Practices Act is the general legislation on marketing in Sweden. The first Swedish Marketing Practices Act came into force in 1971. When Sweden join the EU, major changes was done in Swedish which were based on EU directives 84/450/EEG and 89/552/EEG. In 1996 a new Marketing Practices Act came into force. The Act is applicable on marketing in general; thus the Act is applicable on TV and radio commercial. However the Swedish Act on TV and Radio commercial contains specific rules about marketing over those media.

1.1.1.2 The Swedish Marketing Practices Act does not contain any specific regulation regarding advertising directed to children. Section 4,5 and 6 of the Swedish Marketing Practices Act contains the following general stipulation:

Section 4

"Marketing Practices shall be consistent with generally accepted marketing practices and shall otherwise be fair with respect to the consumers and undertakings."

(Generally accepted marketing practices are defined in the market Act as: "generally accepted business practices or other norms the purpose of which are to protect consumers and undertakings in the context of the marketing of the products".)

Section 5

"All marketing shall be formulated and presented in such a way that it clearly appears that marketing is involved. The party responsible for the marketing should also be clearly indicated"

Section 6

"An undertaking may not, in the course of marketing, make any assertion or other representation which is misleading with respect to the business of the undertaking, or any other undertaking..."

Those are the general principles for all marketing in Sweden. The Courts are very rigid when judging marketing directed to groups in society that may be considered as weaker and easy to influence. One such group would be children.

1.1.1.3 The ICC International Code of Advertising Practices are important guidelines for the Swedish Courts when reviewing marketing in general, including marketing directed to children, children is defined as anyone who is a minor according to the applicable national legislation. The Code is of great importance in Sweden and is regarded as material law by the Swedish Courts. Section 16 of the Code states among other things that; advertising shall not exploit the inexperience or credulity of children and young people. The Swedish Consumer Agency has also issued regulations regarding the marketing of certain products see further below.

1.1.2 Specific Products

1.1.2.1 Tobacco

1.1.2.1.1 In Sweden there is a specific act which regulates among other things marketing of tobacco products; The Swedish Tobacco Act. Marketing of tobacco in periodicals or other similar documents is prohibited; this applies also regarding marketing of tobacco products on TV or radio.

1.1.2.2 Alcoholic beverages

1.1.2.2.1 According to the Swedish Act entitled "Certain regulations regarding the marketing of alcoholic beverages", no marketing of alcoholic beverages, as defined by law, is permitted in any TV or radio commercial in Sweden. The prohibition applies also for periodicals and other such documents. Lighter types of beers may be advertised. However according to guidelines from the Swedish Consumer Agency light beer may not be advertised in periodicals or other publication which are specifically aimed for children and youths under the age of 20.

1.1.2.3 Regulations Issued by the Swedish Consumer Agency

1.1.2.3.1 We have a specific law regarding the safety of toys. In addition to this law the Swedish Consumer Agency has issued numerous regulations regarding primarily the safety of products aimed to be used by children. These regulations also include stipulations regarding marketing of certain products. The products regulated are mainly; napkins for babies, helmets for small children, skateboards and packages for toys. The detailed rules of each regulation are not of any major interest here.

1.1.2.3.2 There is one relevant precedent from the Swedish Market Court regarding the package of toys (MD 1988:16). It is from 1988 refers to the package of certain accessories to be used for a doll. The package of the accessories showed the accessories and a doll, the package however did not contain any doll. The Swedish Ombudsman for Consumers claimed that the design of the package would mislead children regarding the content of the package. In any event the package was misleading since it was not clarified by a explanatory text that the doll was not included in the package. The Ombudsman referred to the Swedish Marketing Practices Act, to the The ICC International Code of Advertising Practice and the guidelines of the Swedish Consumer Agency, claiming that the packing was misleading and that it exploited the inexperience of children in general.

The undertaking selling the accessories claimed that issuing a injunction against the packing would compromise the freedom of trade and that the doll was on the package in order to illustrate how the accessories could be used. The undertaking also claimed that expensive toys such as the accessories in the case is normally purchased by parents and hence the package would not exploit the inexperience of children. Furthermore the undertaking claimed that all consumers are aware of the fact that dolls and accessories are sold separately. The Swedish Market Court ruled in favour of the Ombudsman. The Court stated that in some cases it may be correct to illustrate on the package how the product can be used whether or not such a package is misleading depends on the circumstances in the individual case. For toys the design of the package is of particular importance and only a very clear information on the package could prevent the package from being misleading. What the undertakings stated regarding that most people were aware of that the doll and the accessories were sold separately was considered to be of no importance.

1.1.3 Ways of Advertising

1.1.3.1 TV-Radio

1.1.3.1.1 The general principles in the Swedish Marketing Practices Act stated above apply to advertising on TV and radio as well. However there are some additional regulations for these media. No commercial on the TV or radio is allowed which is directed to children under the age of 12. Nor is it permitted to include actors who have formerly been involved in children's programmes. Finally commercials directed to children cannot be broadcast immediately before or after a children's programme. Children's programmes may not be sponsored under Swedish law.

1.1.3.2 Direct Marketing

1.1.3.2.1 Since quite some time undertakings have abstained from addressing direct commercials to children under the age of 16. This principle has also been confirmed by well-established Swedish case law.

1.1.3.3 Internet

1.1.3.3.1 The Swedish Marketing Practices Act is applicable also to marketing over the Internet. This has been established through case law. It is also reasonable to believe that the a court would apply the ICC International Code of Advertising Practices and regulations issued by the Swedish Consumer Agency, in a case involving marketing over the Internet.

1.1.3.4 Lotteries and Games

Any lottery, i e game at chance, in Sweden requires authorisation from the National Gaming Board. Such authorisation is given only to non-profit Swedish organisations. If there are very strong reasons other organisations, even though profit making, working for the general welfare, can be given authorisation. In general there is no prohibition against lotteries directed to children but since there is a contractual element involved organisers often requires entrants to be at least 18 years old consent of their parents. Because of those very rigid rules on lotteries it is common for undertakings to reorganise a lottery into a contest, i e game of skill. The Swedish Marketing Practices Act is applicable on contests. Any contest rules would have to be in line with the Swedish Marketing Practices Act. This also implies that for any contest directed to children the rules would have to be very clear and fair.

1.1.3.5 Premises

1.1.3.5.1 In general there is no advertising in Swedish schools. It is likely that the Swedish Courts in judging an advertisement could hold that the location of an advertising, such as the in the area of a school, implies that the ad must be particularly clear and fair. To the best of my knowledge there is no precedent treating this issue.

1.1.3.6 Magazines

1.1.3.6.1 There is no specific regulation in this area. The Swedish Marketing Practices Act would apply.

1.1.3.7 Leading Precedents Regarding above

1.1.3.7.1 Food Products

1.1.3.8 The following case regards the marketing of cereals on TV (T8-1397-97). A commercial for QUAKER OAT CRUNCH was run on the national television channel TV4. It was broadcast between the news and the weather forecast, during the morning show around eight o'clock. After the weather forecast a children's programme was shown. The commercial included a polar bear and two penguins (cuddly toys) on the North Pole. A narrator talked in the background saying: "morning is breaking at the North Pole". The next scene is the polar bear preparing his breakfast and taking out a package of QUAKER OAT CRUNCH, which he puts into the microwave oven for a short while where which the QUAKER OAT CRUNCH is ready. After this short story the narrator talks about the ingredients in the product and how it is easily prepared in a few minutes.

The Swedish Ombudsman for Consumers claimed that the QUAKER commercial was directed to children under the age of 12 and filed a motion for an injunction against the commercial. The Ombudsman argued that the commercial had the characteristics of a fairytale. The polar bear and the penguins were cuddly toys, which generally appeal to children, and the narrator talked in an ingratiating way. Furthermore the product itself was aimed for children and not for adults.

QUAKER initially tried to avoid the entire trail by blaming TV4. QUAKER argued that TV4 was responsible since TV4 decided the occasion for the broadcasting, which, claimed QUAKER, was of substantial importance for the case. This however did not go their way (MD 1998:9). QUAKER asserted that the commercial was directed to women at the age between 25 and 59. The animals were included because those are more suitable for dubbing than real actors. QUAKER claimed that the narrator talked in a straight and informative way.

The Court found that the commercial was not directed to children under the age of 12. The court held that it was obvious that the animals were in the commercial in order to draw children's attention to the commercial. According to the ruling the language and the voice of the narrator however were not particularly adapted to children and the commercial was not broadcast in immediate connection with programmes directed to children. The Court concluded that QUAKERS had proved that the target audience for the commercial was in fact women at the age between 25 and 59. The Ombudsman has appealed but the Swedish Market Court has not yet ruled in the matter.

1.1.3.8.1 Products for Children

1.1.3.8.2 In another case from the Swedish market Court ( MD 1998:17), which also led to preliminary ruling, the European Court Justice ruling of 9 July 1997, De Augostini, treated the issue if an undertaking broadcasting company based outside of Sweden could be obliged to comply with the rules in the Swedish TV and Radio Act. The advertisement regarded mainly a book about dinosaurs. It was considered to be directed to children under the age of 12 because of the way it was presented and the time of the day that it was shown.

1.1.3.8.3 Another case regards advertising on TV (MD 1993:13). The Swedish Ombudsman for Consumers claimed that the advertisement was directed to children under the age of twelve and therefore filed a petition for an injunction against the commercial. The advertisement refers the movie channel, which was broadcast by Filmnet. The actors were children and the advertisement was shown around seven o'clock at night. The defendant did not attempt to argue that the commercial as such was not directed to children but rather underlined that the advertising should be judged according to the Swedish Marketing Practices Act and should not be prohibited only because it was directed to children under the age of 12. The Market Court first held that the advertisement was directed to children under the age of 12. With reference to this it was not necessary to judge the commercial according to the Swedish Marketing Practices Act.

2 Advertising of Specific Products Destined for Children by use of Characters

2.1 Cartoons and Similar Charters

2.1.1 There are no specific regulation in this area at the moment in Sweden and no regulation in progress. The case cited above regarding QUAKER will most likely be tried by the Swedish Market Court. It is my personal opinion that there are strong arguments for the Swedish Market Court to find that the commercial is directed to children, if the right arguments are presented to the court. One such strong argument is the fact that children tend to be easily drawn to fantasy characters.

2.2 Famous persons

2.2.1 As mentioned above, section 1.1.3.1, there is a general prohibition for actors and fantasy characters having parts in children's programme directed to children under the age of twelve to participate in any TV commercial. There are no other legal restrictions. 2.3 Characters already commercially available as toys

2.3.1 There is no specific legislation or guidelines in Sweden regarding this issue. However, if the character has been on TV in a children's programme the prohibition in the Swedish TV and Radio Act for fantasy characters would apply, see above, section 2.2.1. To the best of our knowledge there are neither precedents nor any legislation in progress in this area.

2.4 Advertising of Products or Services by the use of children

2.5 To Children

2.5.1 There are no regulations in this area in Sweden. There are quite a number of commercials in Sweden in which children play an important part. The Swedish Ombudsman for Consumers has never argued in Court that those commercials should be considered as addressed to children, and no precedents have specifically treated this issue. However, there is a well-known case, which included a child and which, was found by the Swedish Market Court to be undue.

2.5.2 The case is from 1981 (MD 1981:5). The advertisement was directed to Swedish children. In order to understand the description of the case it is important to know that in Swedish schools meals are provided at noon, which are not paid for by the students themselves. The advertisement compared the meals in Swedish schools with a hamburger meal and showed a Swedish child eating a huge hamburger. The text says: "Today the Swedish Schools are serving lapkojs". ("Lapkojs" is a particular Swedish plain food - not very good actually). The Swedish Ombudsman for Consumers claimed that the advertisement was undue, mainly because it encouraged children to eat and pay them self for hamburgers instead of the meals served for free in schools. With reference to ICC rules, mentioned in section 1.1.1.3 above the Ombudsman claimed that the advertisement used the children's lack of experience and knowledge, which would have an effect on their economy since the meals served in schools are free.

2.5.3 The court held that it is in the very nature of marketing to encourage consumers to buy the products or services advertised. The court further held that the argument that the advertisement could effect children's economy since the meal served in schools were paid for by the public authorities, could be argued for all services provided buy the public and thus did not render the advertisement inconsistent with the Swedish Marketing Act.

2.6 To Adults

2.6.1 Advertisement directed to adults by the use children as actors is very popular in Sweden. There has not been any debate about this and to the best of our knowledge there are neither any precedents regarding this nor any regulation in progress.

2.7 Control of use of Children in Advertising

2.7.1 There is no specific authority in Sweden that controls this area. Ultimately the parents will have to look after the children's interest.