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15 April 2014 New compliance requirements for marketing directed primarily at children

 


IN BRIEF

From 1 April 2014, any business that uses advertising and marketing communications directed primarily at children will have new compliance requirements, but also some useful guidance to assist in the form of new practice notes issued by the AANA. It is critical that any business that is promoting goods or services that appeal or may appeal to children are aware of, and comply with the changes.


THE SELF REGULATORY SYSTEM

The Australian Association of National Advertisers (AANA) represents the interests of Australia’s media, marketing and advertising industry – an industry that is worth over $30 billion a year. The AANA balances the rights of all businesses to communicate freely to their customer base with appropriate consumer protections for responsible conduct in advertising and marketing. The AANA is responsible for the self regulatory system that governs all advertising and marketing communications (including on the internet), irrespective of whether or not the advertiser is a member of the AANA.  The system relies on a Code of Ethics that applies to all marketing communications and 3 further specialised codes, addressing specific marketing circumstances, including a code that sets out specific obligations when advertising or marketing to children aged 14 years or younger (Code for Advertising & Marketing Communications to Children or the Children's Code).

CHANGES TO THE CHILDREN'S CODE

Following a review of the Children's Code, the AANA announced earlier this month that it would introduce an amended Code, together with new practice notes, in order to align the Code with recent changes to the Children’s Television Standards and the changes made to the AANA's Code of Ethics (that made the application of the Code technology or medium neutral).
 
The Children's Code adopts the new definition of ‘advertising or marketing communication’ that was introduced into the Code of Ethics following a comprehensive, independent review of that Code. This change guarantees that advertising and marketing communications through social networking and other online activities are captured.  However, the Code also now includes a broader definition of ‘excluded advertising and marketing communications’. The amendments expand the scope, currently limited to ‘labels or packaging for Products’ to include program promotions for broadcast media and public relations or related activity.
 
As with the Code of Ethics, the amendments ensure that all communications must be judged against "Prevailing Community Standards" and require the Advertising Standards Board (the complaints adjudicator) to have regard to any relevant practice notes published by the AANA.

WHAT IS "DIRECTED" TO CHILDREN

The Children's Code has always applied to advertising or marketing communications that, having regard to the theme, visuals and language used, are directed primarily to children and are for goods, services and/or facilities that are targeted toward and have principal appeal to children.  That has not changed.
 
What has changed is there is now greater guidance as to when a communication will be considered to be "directed primarily" to children.  This is through the important change that requires the ASB to take into account AANA practice notes, together with the release of a new practice note that seeks to unify the "Prevailing Community Standards" and child psychology evidence of children’s reactions and engagement with different marketing techniques.  The intention is for this practice note to assist all advertisers (and the ASB) to understand better the types and nature of different creative techniques that may bring a communication within the Code. 
 
This new practice note also recognises that many creative techniques, like animation, are used to direct and the use of these techniques does not, of itself, bring those ads within the Children’s Code.
 
If your business is marketing or promoting products, services or facilities that have principal appeal to children, or you are using innovative advertising techniques that may be thought to be of appeal to children, and would like to know more about the Children's Code or the self-regulatory regime more generally and your obligations under it, please contact our Commercial and IP & Technology Team on +61 2 9233 5544.

Authored by J Skelton and M Hall.


If you would like to republish this article, it is generally approved, but prior to doing so please contact the Marketing team at marketing@swaab.com.au

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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