April 12, 2024

AANA releases new Children’s Advertising Code

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Following a review announced in June 2022, the Australian Association of National Advertisers (AANA) has now updated the Children’s Advertising Code in an effort to strengthen the safeguards for advertising directed at children.  

What is the Children’s Advertising Code?

In Australia, advertising and marketing is subject to self-regulation. This self-regulation has been administered by the AANA and its sister body, Ad Standards, since 1997. As part of this regime, the AANA developed the Children’s Advertising Code to ensure that advertising and marketing directed at children (defined as persons under the age of 15) is done so in a socially responsible way.

The Code refers to three criteria when determining whether a party is advertising to children, being:

1. Is the nature and intended purpose of the product principally or significantly appealing to children;

2. Is the presentation of the content, including but not limited to:

  • Theme
  • Images
  • Colours
  • Wording
  • Music
  • Language

principally appealing to children; and

3. Does the expected average audience at the time or place the advertisement appears include a significant proportion of children.

The new Children’s Advertising Code can be read here. The AANA has also released an accompanying Practice Note to provide further practical guidance on how to follow the Code’s provisions.

What are the changes?

The new Code came into effect on 1 December 2023.

While old iterations of the Code were concerned with the advertisement of children’s products specifically, the new Code now targets all advertising directed at children, whether or not the products or services were originally conceived with children in mind.

Hazardous products and unsafe practices

For example, clause 2.1 states:

Advertising to Children must not contravene Prevailing Community Standards.

The Practice Note considers a contravention of “Prevailing Community Standards” to include the promotion of products or services unsuitable or hazardous to children, or encouraging unsafe practices.

The AANA considers “unsuitable” or “hazardous” products to include items such as vapes, the plant substance kava and/or highly caffeinated drinks. This means that items such as the sports drink PRIME, the creation of a YouTuber popular with many school-age boys and which contains more than the legal caffeine limit set by Food Standards Australia New Zealand, could potentially fall foul of the Code.

The Practice Note also explicitly considers advertising which encourages bullying or promotes unhealthy ideal body image to constitute “unsafe practices”.

The use of sexual appeal or imagery

Clause 2.3 of the Code states:

Advertising to Children:

  • Must not employ sexual appeal;
  • Must not include sexual imagery; and
  • Must not state or imply that Children are sexual beings and that ownership or enjoyment of a Product will enhance their sexuality.

Contraventions would include sexualised clothing or poses of child models.

Endorsements and influencer marketing

Clause 2.7 of the Code states:

Advertising to Children which uses popular personalities or celebrities (live or animated) to endorse, recommend, promote or advertise or market products, services or Premiums [something offered for free, at a discount or conditionally upon the purchase of an advertised product] must be clearly distinguishable as advertising.

Given the rise of ‘kidfluencers’ and influencers targeting children, it is becoming increasingly difficult for children to know whether the goods and services being advertised to them are organic endorsements or the product of paid advertising. Therefore, the Practice Note suggests that influencer marketing be “clearly recognisable to children as advertising”. This could involve simple changes such as:

  • Making a disclosure within or directly next to the marketing communication;
  • Making a disclosure in a significant size and colour that is easy to read; and
  • Making a disclosure that is readily apparent before or immediately at the point of engagement. 

What should I do next?

First of all, consider if you could be advertising to children as contemplated by the Code.

If you are, review the Code and Practice Note carefully and consider whether your marketing and advertising is in accordance with the new Code. If in doubt, seek a clearance from an expert.

At Digby Law, we’re here to help you with your legal matters regarding advertising and marketing issues. If you have any queries or concerns about these upcoming changes, please don’t hesitate to get in touch.

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