a tangled web for web: marketing to children

8/22/2019 A Tangled Web for Web: Marketing to Children

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A tangled webMarketing to children

Jillian Pitt


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Consumer Focus

About Consumer Focus

Consumer Focus is the statutory

consumer champion for England, Wales,

Scotland and (for postal consumers)

Northern Ireland.

We operate across the whole of the

economy, persuading businesses,public services and policy makers to put

consumers at the heart of what they do.

Consumer Focus tackles the issues

that matter to consumers, and aims to

give people a stronger voice. We dont

just draw attention to problems we

work with consumers and with a range

of organisations to champion creative

solutions that make a difference to

consumers lives.

Acronymns used in the report

AA Advertising AssociationASA Advertising Standards AuthorityBCAP Broadcast Committee of Advertising Practice

CAP Committee of Advertising Practice

DMA Direct Marketing Association

DMC Direct Marketing Commission

EACA European Association of Communication Agencies

EASA European Advertising Standards Alliance

ESOMAR European Society of Market Research

IAB Internet Advertising Bureau

ICC International Chamber of Commerce

ISBA Incorporated Society of British Advertisers

ISP Institute of Sales Promotion

MRS Market Research Society

POPAI Point of Purchase Advertising International

WFA World Federation of Advertisers


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Marketing to children

Contents

Executive summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Why it matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Codes, principles and regulatory practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Inconsistencies and gaps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18


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4 Consumer Focus

This report researches current regulation andhighlights where children are not adequatelyprotected by either the law or industry self-regulation. The aim is to try and disentangle thecomplexity of the regulatory landscape for parentson how they can best protect their children fromunwanted advertising and for businesses tocomply with statutory codes when trying to best

protect children.

The coalition Government has indicated

it will take action to protect children fromexcessive commercialisation and crack downon irresponsible marketing. Consumer Focusrecognises that there have been recentdevelopments by industry to further protectchildren but certain gaps do still remain.

We have used research on the regulatorylandscape to propose recommendations forhow children can be better protected and havehighlighted where the gaps and inconsistencies liewithin present regulations.

Three key issues highlighted by our research are:

1 Codes of practice are dispersed across awide range of bodies. At least 20 differentself-regulatory and statutory codes ofpractice relate to marketing and advertisingpractices, data protection, research,

privacy and parental involvement. These aresupplemented with ad-hoc trade associationcodes of practice and initiatives related to,for example, the marketing of food and

drinks high in fat, salt and sugar (HFSS)

2 There is a lack of transparency in howthe various regulatory and self-regulatorybodies relate to each other. The lack of anoverall monitoring mechanism for integratedmarketing campaigns targeted at children

further compounds the issue

3 Consumer Focus calls for greatertransparency in the process used toimplement existing codes and developingnew ones

We would like to see the current systemconsolidated and simplied with gaps andinconsistencies addressed to make it easier for

advertisers to navigate their way through and put

childrens needs at the heart of what they do.

Our recommendations are to:

Executive summary


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5Marketing to children

simplify the whole process and ask tradeassociations to relate their membersguidelines specically to the AdvertisingStandards Authority (ASA)

align the denition of a child as under 16 forall codes

tackle the issue of identifying children andtheir parents online

have a uniform system of labelling onlinemarketing communication

regulate brand ambassadors within theASA and ban this practice for under 16s

clarify the position for wishlists

put the onus on industry to make it clear tochildren and their parents which marketing

techniques are used and what they aredesigned to do

call on ASA to further extend the Committeeof Advertising Practices (CAPs) digital remitto cover brands and logos appearing byassociation and marketing communicationsin foreign media, and to include sponsorship,packaging and point of sale within the widerremit of ASA

make specic provision for children in

privacy legislation


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6 Consumer Focus

In recent years the use of integrated marketingtechniques and digital technology to marketproducts to children has increased signicantly.Integrated marketing techniques encompass arange of different media including TV, the internetand direct mail; and digital technologies suchas SMS. A number of regulatory problems havebecome apparent as traditional distinctions

between different media have become blurred.There is no single transparent set of standardsand procedures governing either contemporaryintegrated marketing techniques or how productsare marketed to children.

Marketing to children in the UK must complywith three pieces of EU legislation and an Ofcomrule as well as the substantial codes of practice

of the two main UK co-regulatory bodies: theCommittee of Advertising Practice (CAP) and theBroadcast Committee of Advertising Practice(BCAP). The Ofcom rule comes under theBCAP code. Members of the Market Research

Society (MRS), the Direct Marketing Association(DMA), the Internet Advertising Bureau (IBA)and a growing number of other marketingtrade organisations are also bound by otherindustry-specic codes of practice. There hasalso been a recent proliferation of new statutoryand voluntary initiatives addressing how foodand drinks high in fat, salt and sugar (HFSS) aremarketed to children.

Companies have to invest signicant time and

resources to making sure they are compliantwith legislation, regulations and industry-speciccodes of practice. This can be difcult and evenimpractical for new or small companies and thoseunaware of, or unafliated to, trade bodies. Itis also highly unlikely parents are fully informedof the regulations designed to protect childrenor of where they can complain if they think amarketing campaign is irresponsible. It is equallydifcult for consumer interest groups to ascertainif campaigns are not complying with legislation,

regulations or codes of practice.

Introduction


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Children as consumers

In the UK, 105 billion a year is spent on children1.Worldwide, this gure is US$2 trillion2. Whilecompanies selling products aimed at childrenare eager to prot from this market, consumerinterest groups are keen to prevent children from

being exploited. The rise in the number of obesechildren has turned a particularly bright spotlight

on the marketing of HFSS food and drinks. TheBuckingham report Impact of the commercialworld on childrens wellbeingcommissioned bythe previous Government concludes that thepublic is not well informed about the effect ofmarketing campaigns on children, and someareas of regulation are insufcient3. The currentcoalition Government has stated its intention toaddress irresponsible marketing aimed at children.

Contemporary marketing practices

In the past, separate self-regulatory bodies usedto have discrete codes of practices regulatingand monitoring specic media. For example,advertising was monitored by the AdvertisingStandards Authority (ASA).

This regulatory model is now insufcient foroverseeing complex integrated marketingcampaigns that encompass a range of differentmedia (for example TV, internet, direct mail

and posters). This is sometimes referred to as360 degree marketing because a campaignsmessages surround the consumer on all sides.For example, a TV advertising campaign may tellconsumers they can nd a code on a productpack which can be keyed into a website where

they can take a survey and pass on messagesabout the product to other consumers. Whilethese activities make up a single integratedmarketing campaign, the separate elements areregulated by different advertising, sales promotion,

internet advertising and market research codesof practice. And, the viral part of the campaign(passing product messages between consumers)is not regulated at all. Consequently, it is bothdifcult for a company to know if an entire

campaign abides by all of the regulations, and fora consumer to know which body to complain to ifthey are unhappy.

Why it matters

1 Liverpool Victoria (2010). The cost of raising a child tops200,000 (Press release, 23 February 2010). Available at:http://bit.ly/c3P9lh (accessed 5 July 2010)

2 Lindstrom, M. (2004). Brandchild: Remarkable insights intothe minds of kids and their relationship with todays global

brands. Kogan Page. London3 DCSF (2009). The impact of the commercial world on

children's wellbeing: report of an independent assessment.Available at: http://bit.ly/a1UNcu (accessed 5 July, 2010).London. DCSF


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8 Consumer Focus

Digital platforms

The rapid development of digital technologiessuch as the internet, SMS, Bluetooth andinteractive billboards have further blurred thetraditional denitions of marketing activities andconsumer touch-points (places where marketing

messages appear). The recent extension of thedigital remit of the CAP code goes some way to

ensuring children and young people are protectedonline. From March 2011, the ASA will regulateadvertisers own marketing communicationson their own websites and in other non-paid-for space online. However, there still remains anumber of exclusions outside the remit of theCAP code such as marketing communicationscontained within editorial content and foreignmedia, ie websites that originate from countries

outside the UK.

The recently launched Childrens EthicalCommunications Kit (Check) website goes someway to provide a one-stop-shop for businesses to

nd out the rules which apply when marketing tochildren across platforms in a simple and straightforward way.

But statutory regulations have struggled to keeppace with digital practices and this has resulted ina urry of stop-gap best practice guides and codes

of practice from various industry bodies, includingthe European Advertising Standards Alliance(EASA)4 and the Internet Advertising Bureau (IAB)5,which, although well meant, have limited inuenceand can be confusing for both companies, thepublic and consumer interest groups.

When people subscribe to a website, vastamounts of information about them can nowbe collected quickly and easily using cookies.Consequently, complying with privacy legislationhas become an issue for companies. At presentUK and European privacy laws do not make anyspecic provision for children.

4 EASA (2009). Digital marketing communications bestpractice. Available at: http://bit.ly/b7WSqU(accessed 5 July, 2010). EASA

5 IAB IAB good practice principles for online behaviouraladvertising. Available at: http://bit.ly/dDjkJQ (accessed 5July 2010). IAB


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Codes

Marketing to children is governed by statutoryregulation (the law) and self-regulation by industrybodies. At least 20 substantial codes of practiceapply to marketing aimed at children. Theseexist across both statutory regulation and self-

regulation (see Figure 1). This list does not includeguidelines drawn up by smaller trade bodies orsome of the voluntary principles created by food

and drinks companies.

Some of the codes of practice are internationallyapplicable, for example, the United NationsConvention on the Rights of the Child andthe International Chamber of CommercesConsolidated Advertising and Communications

Code. Others are enforceable across Europe, forexample, consumer protection regulations andprivacy laws. The UK also has its own codes ofpractice, for example, the CAPs self-regulationcode of practice and Ofcoms ruling on marketingHFSS food and drinks to children.

Some US codes of practice have been adoptedby UK companies, although these are not legally

binding in the UK. These include the ChildrensOnline Privacy and Protection Act. There are alsoother international voluntary codes of practice onmarketing food and drinks to children that someof the major multi-national companies have signedup to. These do inuence how they globallymarket such products to children.

Legislation

The 1990 United Nations Convention on theRights of the Child (UNCRC) was the rstinternational human rights treaty that grantschildren (under the age of 18) a comprehensiveset of rights covering civil, cultural, economic,

political and social matters. The UK signed theconvention in 1990, and it came into force in1992. It is used to guide UK policies concerning

children across education, law and order, familypolicy and even play. The convention draws onthe Declaration of the Rights of the Child by theUN General Assembly on 20 November 1959:The child, by reason of his physical and mental

immaturity, needs special safeguards and care,

including appropriate legal protection. Therefore

children everywhere have the basic human right tobe protected including in the context of marketingand advertising targeted at them.

Codes, principles and regulatorypractices


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10 Consumer Focus

EUdirective

95/46/EC

The DataProtectionAct 1998

EUdirective

2002/58/EC

Privacy and ElectronicCommunicationsRegulations 2003

EUdirective

2005/29/EC

The consumer Protectionfrom Unfair TradingRegulations 2008

InformationCommissioner

InformationCommissioner

ASA/OFT

EU directive UK law Monitoring body

Figure 1: Legislation relating to marketing aimed at children

There are three EU directives, three pieces of UKlegislation and an Ofcom ruling that companiesmust adhere to. The legislation is shown in Figure 1.

The EU Directive 95/46 was enacted as the 1998Data Protection Act in the UK. The InformationCommissioner oversees compliance with thislegislation. More recently, the EU Directive2002/58 was enacted as the 2003 Privacy and

Electronic Communications Regulations, and thisis also overseen by the Information Commissioner.Both of these relate to the collection and useof personal data. However, there are no specialsafeguards or provision for children within these

two pieces of legislation. This is a major gapwhich requires urgent EU action.

EU Directive 2005/29 became the ConsumerProtection from Unfair Trading Regulations in theUK in 2008 and is important because it specicallyoutlaws marketing communications which exhortchildren to ask their parents to buy them goods orservices by encouraging pester power. This hasbeen incorporated into the CAP and BCAP codesof practice6. These are regulated by the ASA andare enforceable by the Ofce of Fair Trading (OFT).

A recent co-regulation between BCAP andOfcom, which came into being in 2007, has givenOfcom the powers to ban television advertising ofHFSS food and drinks in and around programmesof particular appeal to under 16s.

6 CAP code of practice section 5.4, 5.5 and 5.7; BCAP codeof practice section 5.9, 5.10 and 5.14


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EASA

MRS ESOMAR CAP BCAP DMA

Standards

Board

Professional

standards

Committee

ASA DMC

EU

pledge

ICC WFA

EACA

AA

IAB ISP

ISBA POPAI

Regulatory practices

The majority of the codes of practice relatingto advertising and marketing to children areregulated by industry or as part of a co-regulatory agreement between statutory bodiesand industry rather than legislation enforceable

in law. Figure 2 shows how Consumer Focusunderstands these self-regulatory bodies relateto each other there is no known ofcial record

of this relationship. The main codes of practiceare shown in brown with their relevant monitoringbodies shown in red. The yellow circles denotethe major trade bodies, some of which have theirown members codes of practice.

Acronyms

AA Advertising AssociationASA Advertising Standards AuthorityBCAP Broadcast Committee of Advertising

PracticeCAP Committee of Advertising Practice

DMA Direct Marketing AssociationDMC Direct Marketing CommissionEACA European Association of

Communication AgenciesEASA European Advertising Standards

AllianceESOMAR European Society of Market ResearchIAB Internet Advertising BureauICC International Chamber of Commerce

ISBA Incorporated Society of BritishAdvertisers

ISP Institute of Sales PromotionMRS Market Research SocietyPOPAI Point of Purchase Advertising

InternationalWFA World Federation of Advertisers

Figure 2: Main bodies making codes of practice


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12 Consumer Focus

The source for the majority of current marketingcodes of practice appears to be the Advertisingand Marketing Commission of the InternationalChamber of Commerce (ICC) who rst publisheda code of practice in 1937. The ICC has manythousands of corporate members across arange of industries. It could best be described asperforming on a global stage a role similar to that

of the Confederation of British Industry (CBI) inBritain. The ICCs codes of practice on advertisingand marketing are continually updated, and the2006 code of practice is currently being reviewed.

The following bodies codes of practice appear toderive from the ICC and these have either beenreviewed or are under review in 2010:

CAP Code (2010) BCAP Code (2010)

DMA Code (2003)

MRS Code of Conduct (2010)

ESOMAR International Code on Social and

Market Research (2007)

The BCAPs code of practice applies to broadcastadvertising TV and radio while CAPs appliesto non-broadcast marketing and advertising, forexample sales promotion and many aspects ofdirect marketing (see Annexes 5 and 6). Despite

the trends in integrated marketing practices,the codes of practice remain separate and thisis in part due to their heritages. The CAP hasbeen in existence since 1961 and the ASA, anindependent body funded by the advertisingindustry, has administered the code since 1962.BCAP is a relatively new body having been setup in 2004 when the ASAs remit was expandedto cover broadcast advertisements (previouslythe subject of a separate statutory regime).The Communications Act of 2003 gave Ofcom

statutory responsibility for broadcasting standards

which it then contracted out to the ASA. Thisarrangement is now co-regulatory.

Signicantly, the ASA was unable to investigatemore than 2000 consumer complaints in2009 because they related to commercialcommunications on companies own websitesand, therefore, fell outside its remit of advertisingin paid-for space (for example TV, newspapersand billboards). In 2010, after lengthyconsultations with industry, the AdvertisingAssociation-led Digital Media Group proposed acode of practice to cover advertising on company

websites and other non paid-for spaces. This isnow under the jurisdiction of the ASA as part ofthe extended remit of the CAP code which willcome into play in March 2011.


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Independent authorities monitor the BCAP andCAP codes of practice. Compliance with theseis monitored by the ASA. The CAPs code ofpractice is legally enforced by the OFT under theConsumer Protection Unfair Trading Regulations2008 and the Business Protection from MisleadingMarketing Regulations 2008. The BCAPs codeof practice is co-regulated by Ofcom. In this way,

these codes of practice apply to any company.

The other codes of practice apply only to the

members of each organisation, and are self-monitored. For example, the Direct MarketingAssociation (DMA) members conduct is overseenby the Direct Marketing Commission (DMC),and the MRS and European Society of MarketResearch (ESOMAR) have compliance councils

within their own organisations.

Codes of practice within each discipline emanatefrom the ICC and lter down through theregulatory bodies in the UK and the EASA actsas a unifying voice for advertising self-regulationacross Europe.

However, as we have seen, the marketingindustry includes a multitude of diverse activities

such as sponsorship, sales promotion, in-schoolmarketing and press advertising. Each activityhas spawned a trade association representingand supporting its members and the number ofsuch bodies continues to mushroom in responseto new digital marketing channels. Recent groupsinclude the Mobile Marketing Association (MMA),the Mobile Broadband Group (MBG) and theWord of Mouth Marketing Association (WOMMA).Each is anxious to demonstrate it has a setof guidelines that functions in their members

interests and shows their worth.

Spending on internet advertising overtookbroadcast advertising for the rst time in 2009 andthe IAB has been very proactive in creating bestpractice guidelines for its members. However,these guidelines are not independently policedor sanctioned in the same way as the CAP andBCAP codes of practice. Moreover, broadcastand non-broadcast advertising remain within twoseparate codes of practice with slightly differentregulatory mechanisms.

Another layer of complexity has been added bythe food and drinks industries response to thegrowing numbers of obese children. There are

initiatives instigated by companies acting alone,for example, the PepsiCo Policy on ResponsibleAdvertising and Marketing to Children. And there

are those introduced by certain bodies, often asa condition of membership for those bodies, forexample, the EU Pledge.

A 2010 review by the National Heart Forumfor the Department of Health identied 24such pledges that operate variously on anational or global basis (see Annex 1). Codesof practice initiated by specic industries dohave the advantage of the full cooperation of

the companies that sign up to them whereasregulations can often meet with opposition.However, these codes of practice and pledgesare only as good as the monitoring system thatensures compliance. Companies that do not signup are, in the main, inadequately monitored.


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14 Consumer Focus

The existence of too many codes of practice hasled to inconsistencies and gaps being created.At the same time, the complicated maze createdby these many codes of practice does notadequately reect the rapidly moving integratedmarketing practices used today. In the UK, thereare still separate codes of practice for broadcastand non-broadcast advertising. This section takes

the relevant parts of the ICC Consolidated Code,from which the other main codes of practice seemto stem, and examines the problematic areasrelating to marketing aimed at children.

The age of a child

One of the most fundamental problems withthe current system of regulation is the differentages used to dene a child. The ICC omitted a

denition of a child when writing the consolidatedcode in 2006. As a result, many of the codes of

practice include a variety of ages between 12 and18, although some do not specify an age at all(see Annex 2).

Greater consistency of dening the age of achild would be helpful and less confusing thanthe current arbitrary system used by some. Forexample, certain brand names may have a policy

to target their advertising messages to children of12 and over but CAP and BCAP codes dene achild as a person up to the age of 16.

Outside of the main CAP and BCAP codes ofpractice, the guidelines drawn up by industrybodies and companies, for example the IAB andEuropean Advertising Standards Alliance (EACA)tend only to offer protection to children up to 12

or 13 several years adrift of the UNCRC andkey UK codes of practice. It is likely that thesebodies are following the lead of a key piece ofUS legislation that came into effect in 2000,Childrens Online Privacy and Protection Act(COPPA) dening children as being under the ageof 13. Unlike European governments, the FederalTrade Commission (FTC) in the US has introducedspecial restrictions on the collection and use ofonline data from children.

The CAP and BCAP clearly dene a child as

under 16, although some of the new food anddrinks regulations strangely only apply to primary

and pre-school children. For example, certainsections of the recently revised BCAP code of practice

state promotional offers, licensed characters and

celebrities popular with children may not be used

in HFSS product advertisements targeted directly

at pre-school or primary school children [that is

those under the age of 12] on TV or radio. It also

says HFSS products cannot aim nutritional or health

claims at these children. Certain sections of the

CAPs code of practice contain the same prohibition

concerning the use of licensed characters, celebrities

and promotional offers in advertisements aimed at

pre-school and primary school children but do not

prohibit them from making health or nutritional claims.

It is not clear why the age limit, dened elsewhere

in the CAP and BCAP codes of practice as 16, has

been relaxed for celebrity endorsement, promotions

and health claims. Interestingly, Ofcoms regulation

regarding the advertising of HFSS food and drinks

applies to television programmes aimed at under 16s.Furthermore, it is also not clear why the CAP and BCAP

are unaligned in the area of health and nutrition claims.

Inconsistencies and gaps


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Inexperience and credulity

The ICC Consolidated Code reects the UNCRCin that it says children have particular rightsbecause they are more vulnerable than adults. Acore principle is the protection of children fromadvertising that may exploit their inexperience

and credulity. This is in Article 18 of the ICCConsolidated Code (Annex 3), and point three

states marketing communications directed tochildren should be clearly distinguishable to themas such.

Advertisements on television are obviouslydistinguishable because they occur during a breakin programmes, and children from a young ageare able to tell the difference between advertisingand programming.

However, this distinction is less clear in the digital

space. Recent research7 showed that only 37

per cent of advertisements on the UKs favourite

childrens websites were labelled as such; 21 per

cent were integrated into the content (with only

17 per cent of these labelled as advertisements);

and even 16-year-olds were unable to identify

the commercial intent of certain newer types of

advertising such as product placement, where a

product is mentioned within a television programme;advergames, where a child engages in a branded

game whose purpose is to create brand awareness

and emotional attachment; viral marketing, where

children are encouraged to send branded messages

to friends and family; blog seeding, where children

are encouraged to write favourable messages about

a brand on blogs; and social networking skins,

where children choose branded decorations for the

social networking home page.

Other research has shown that, when acommercial message is not recognised as such,brand associations are processed implicitly. Theeffect of the advertisement operates without achilds conscious awareness or control8. This is

clearly undesirable.

As a result of the extended digtial remit of theCAP code, from March 2011 rules will nowapply to advertisements and other marketingcommunication within companies own websites

and within other non-paid-for space.

7 Fielder, A. Gardner, W. Nairn, A. and Pitt, P. (2007). Fairgame? Assessing commercial activity on childrens favourite

websites and online environments. London. NationalConsumer Council and Childnet International. See alsoAuty, S. And Lewis, C. (2004) Exploring childrens choice:the reminder effect of product placement, Psychology andMarketing, 21 (9), p. 697713

8 Nairn A. and Fine C. (2008). Whos messing with my mind?The implications of dual process models for the ethics ofadvertising to children, International Journal of Advertising,Vol. 27, No. 3 p. 447470


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16 Consumer Focus

Avoidance of harm

The ICC Consolidated Code Article 18 says

marketing aimed at children should not result inharm mentally, morally or physically.

Ofine, this principle is well policed by the ASAin the UK. Chapter 5 of the BCAPs code ofpractice contains a number of clauses protectingchildren from various forms of harm and, indeed,

the CAPs code of practice echoes the words ofthe ICC code almost exactly9. However, recentresearch shows a quarter of advertisements onchildrens favourite websites were for productswith a legal age limit (16, 17 or 18). These includegambling, cosmetic surgery, obtaining creditand intimate dating10. These constitute potentialharm for children and mean monitoring of internetadvertising is less well developed than that inother areas.

Social values

The third substantive part of Article 18 relatesto social values and states: Marketingcommunication should not include any directappeal to children and young people nor shouldpersuade their parents or other adults to buy

products for them. This is reinforced in the2008 Consumer Protection from Unfair Trading

Regulations in the UK and is legally enforceable.The BCAP and CAP codes of practice adequatelycover this11.

However, Article 18 does not cover messages

on company websites which exhort children topersuade others to make purchases for them.Thus, the common practice of wishlists onchildrens websites cannot be regulated despite

being quite clearly direct appeals to children to getothers to make purchases on their behalf. Thesewishlists encourage children to send emails tofamily and adult friends with links to e-commerceareas on the website where the companyproducts can be bought. This practice is, in effect,illegal and it is to be hoped that specic provision

will be made for this activity to come within theremit of the CAPs extended code of practice,dependent on future test cases.

9 CAP code of practice section 5.110 Nairn, A. and Fine, C. (2008), Whos messing with my

mind? The implications of dual-process models for theethics of advertising to children, International Journal ofAdvertising, Vol.27, No. 3 p.447470

11 BCAP code of practice sections 5.9, 5.10 and 5.14; CAPcode of practice sections 5.4, 5.5 and 5.7


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Article 18 also states marketing should notsuggest that a child will have any form ofsuperiority by owning the product being marketed.CAP and BCAP codes of practice reect this12,but they do not cover the relatively new practiceof brand ambassadors whereby children arerecruited to demonstrate a product to friends.The effects of this type of marketing on friendshipgroups have not been researched. It is, however,

quite conceivable that the status of brandambassador confers a social superiority on thechosen children which others will want to emulate.

Data protection and privacy

As noted in Chapter 3, the EU Data ProtectionDirective (95/46/EC) does not make specicprovision for children. This is a serious omission.

The implication of Article 19 of the ICC codeis that parents should act as arbiters of theirchildrens privacy rights (see Annex 4). TheArticle puts the onus on companies to try toinvolve parents and obtain their consent beforeinformation is collected about children.

In the UK, these guidelines are implemented inthe DMAs code of practice where they apply to allonline direct marketing communication to children

under 18 (see paragraphs 19.2519.34 in Annex5). These provisions make it clear that personaldata must not be collected from children underthe age of 16 without rst obtaining a parent orguardians veriable and explicit consent, andsimilar consent must be obtained before publiclyposting or disclosing such information.

However, there are a number of seriouschallenges in applying these rules. Obtainingexplicit and veriable parental consent is difcult.

Some websites simply ask children to tick a boxto say they have obtained consent. Researchshows that some children will tick the box withouthaving consulted their parents. Other websitesask for a parents email address so the companycan contact them directly. Research showsthat some children simply create a new emailaddress that allegedly belongs to their parents.Moreover, the DMAs code of practice states thatother peoples personal information must not becollected from children, so collecting a parents

e-mail from a child contravenes this section13.

Verifying the age of a child on the internet is

almost impossible without requiring some sort ofofcial ID card, bank card or passport number documents which not all children possess.And given that neither privacy laws nor the ICCstipulate the age of a child, the position whena child accesses a website which has its legalheadquarters in another country, is far from clear.There are also disparities between the privacy

regulations relating to a child visiting the websitebelonging to a company with headquarters inanother country.

13 DMA code of practice section 19.33

12 CAP code of practice section 5.2; BCAP code of practicesection 5.6


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18 Consumer Focus

We have seen that the CAPs code of practice is

also derived from the ICC Consolidated Code.However, provision in the CAPs revised codeof practice is at odds with the DMAs. Section10.15 of the CAPs code states that marketersmust not collect personal information fromchildren under 12 without rst obtaining parentalpermission, while Section 10.16 says marketersmust not knowingly collect personal informationabout other people from children under 16. It isunknown why the rst age limit has been revised

down to 12 (from the DMAs limit of 16) and why

the second has been revised down to 16 (fromthe DMAs limit of 18).

There is a widely held belief in the marketingand advertising industries that the InformationCommissioner has said children over the age of12 are capable of giving their consent for theirpersonal information to be collected and used.However, this belief is not recorded in writing anddoes not form part of any of the ICCs codes of

practice. This belief is also, clearly, contrary to theDMAs code of practice.

Parental involvement

Chapter D7 of the ICC Consolidated Code relatesto advertising and marketing to children usingelectronic media and the telephone (see Annex6). It requires companies to encourage parentsto supervise their childrens internet activities

and not to disclose personal information abouta child without parental consent. The provision

is very vague and so far none of the UK codesof practice have more specic guidelines forelectronic media marketing aimed at children.We have already seen how hard it is to put inplace a foolproof mechanism for verifying parentsidentities. It is also hard to see how parents canbe encouraged to supervise their children whenthey are unlikely to know what websites theirchildren visit. An increasing number of children

have internet access in their bedrooms whereparents cannot adequately supervise activities.

None of the codes of practice havecomprehensively tackled the issue of behavioural

targeting of children. This is the practice of placingcookies on childrens computers so that datacan be collected about which sites childrenvisit, how long they stay there, what topics theydiscuss, what they buy etc so that targeted

advertising can be directed to their computer.The voluntary IAB best practice guidelines simplystate advertisers should not create segments ofdata for under 13-year-olds for the purpose oftargeting. However, this does not give childrenor parents any particular information about, or

control over, data that is passively collected.Again, this may be something the marketingindustry can tackle with government.


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The regulations governing marketing to children arecomplex. A number of regulatory problems havearisen over recent years with the increased use ofintegrated marketing communications and digitaltechnology in a rapidly growing childrens market.

Regulatory and self-regulatory bodies have not keptapace with developments in integrated marketingpractices, particularly those relating to new digitalmarketing techniques. These techniques are notbeing reected in codes of practice.

The regulatory model is insufcient for monitoringintegrated marketing campaigns. With over 20

different statutory and self-regulatory codes ofpractice (and many of these issued by a raft ofbodies representing their members interest),

there is a lack of transparency in how the variousbodies relate to each other. Most of thesecodes of practice relate to a discrete marketingtechnique, for example, marketing, advertisingand direct mail. There is not an overall monitoringmechanism for regulating integrated marketingcampaigns. Consequently, it is both difcult for acompany to know if an entire campaign abides by

all relevant regulations and codes of practice, andfor a consumer to know which body to complain

to if they are unhappy.

One of the most fundamental problems with thecurrent model is the different ages used to denea child. Across the many codes of practice these

vary from 12 to 18, and some do not specify anage at all. There is no provision in current codesof practice for labelling digital advertising. Childrenare still exposed to inappropriate advertisingonline. The practice of enabling children to createwishlists on certain websites contravenesthe ICC Consolidated Code about pesterpower. The recruitment of children as brandambassadors where they promote products totheir friends also contravenes the ICC code, yetbrand ambassadors are not covered in any codes

of practice.

Companies have a duty to obtain parental

consent before collecting data about children.This duty is difcult for companies to abideby over the internet, and the issue is furthercomplicated when a company has its websitein a country outside of the UK. There are alsodifferences in codes of practice between the agesat which companies can collect personal data.

Conclusions


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ISBN: 978 1 907125 38 6

Published: October 2010

If you have any questions or would like further information about our research,please contact Jillian Pitt, by telephone on 020 7799 7991 or

via [email protected]

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Thanks to Dr Agnes Nairn for her support and comments

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a tangled web for web: marketing to children

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