CMA’s Prof. Elizabeth Handsley reviews the AANA’s revision of its Children’s Advertising Code

The Australian Association of National Advertisers, or AANA, recently revealed the revisions it is making to its Children’s Advertising Code (the Code). These will come into effect in December this year. The new Code is accompanied by a Practice Note, a separate document that provides further detail about how the Code provisions are to be interpreted. Complaints against breaches of the Code are determined by a Community Panel.

When CMA made our submission to the review that led to these revisions, we set out in detail a number of reservations we’ve always had about the Code. While there are a few welcome changes (see below), there were a number of topics where we called for change but none is being made. For example we argued that labels, packaging and program promotions should not be excluded from the definition of Advertising; but these exclusions remain, in identical terms. Similarly with the definition of Premium; the wording of the sections on misleading and deceptive advertising and parental authority; and the content of the section on sexual appeal.

Regarding Premiums, we tried to address an intractable problem by submitting that they ‘should be defined to take account of the main kind of product that the advertiser sells, so that anything outside that category is included. For example if a company mainly sells food, any toys included with its products should be treated as a premium.’ In the event, the failure to update the definition is of limited significance, because the section limiting the use of Premiums has been gutted. Previously it set out no fewer than 6 different practices that were disallowed, now it says only ‘must not encourage the purchase of an excessive quantity or irresponsible consumption’. Therefore there will be very few ads (possibly no ads at all) where the definition will make any difference.

Our submission about misleading and deceptive advertising sought to change the wording from ‘must not mislead or deceive Children’ to ‘must not be misleading or deceptive to Children’. We argued that ‘[i]t should not be necessary to show an ad misled or deceived anybody, rather the Code should look at the ad’s inherent tendency.’ We made a similar argument on the parental authority section, which says ‘must not undermine’ parental authority; we said, ‘[a] preferable expression would be “must not have a tendency to undermine”, or “must not question” as this refers directly to the content of the ad rather than its impact.’

On sexual appeal, we pointed out that no advertising to children (within the Code’s very narrow definition – see below) would ever ‘employ sexual appeal’ or ‘include sexual imagery’ – so ‘those subsections function as window-dressing, creating the appearance that the Code is addressing an issue when there is [in] fact no issue’. There is one more subsection, that says advertising to children must not ‘state or imply that Children are sexual beings and that ownership or enjoyment of a Product will enhance their sexuality’. We argued that the AANA’s general Code of Ethics does a better job of addressing the community’s concerns about sexualised advertising and suggested they remove this section from the Children’s Code completely, with perhaps a provision about the depiction of children behaving in a suggestive or sexy manner. This seems to have been picked up in the Practice Note, but apparently only in relation to ads for underwear and swimwear.

In contrast to these continuations of flaws in the Code, there have been a number of changes, though not all of these go far enough. For example, the age cutoff in the definition of ‘Child’ is raised, but only by 1 year, from 14 to 15. CMA had submitted it should be at least 16. The section on personalities has been made clearer, and the new Code sensibly omits a number of matters that are addressed elsewhere, for example alcohol, food and beverages and the role of other Codes. This avoids the confusion that can come with cross-referencing, which we identified in our submission. We are a little puzzled, however, by the omission of the section on privacy in an age where the collection and handling of children’s personal data have become a more urgent issue than ever. Perhaps this was done in anticipation of forthcoming strong government regulation.

The addition of a section on frightening or distressing content is a significant improvement, from CMA’s perspective, as there is clear research evidence for restricting children’s exposure to scary content. It’s also a matter on which we hear many parents and carers express concerns. However the section itself permits a certain degree of fright or distress in advertising to children as it disallows only that which is ‘unreasonably frightening or distressing’ (emphasis added). Ultimately this provides a significant margin for interpretation by the Community Panel, and big loophole for advertisers.

Ironically, though, this loophole might not be of much significance, because of the very restrictive definition of ‘Advertising to Children’ which determines the application of every section of the Code. Here, there has been a degree of improvement, but the change has not gone nearly far enough and in fact it might ultimately represent a step backwards.

The current definition has two aspects, and an ad must satisfy both to fall within it. They are (1) that the ad appears to be directed primarily to children (a judgment made based on the theme, visuals and language used) and (2) that the product being advertised is one that is targeted toward and has principal appeal to children. If you look around, you’ll see that very little advertising meets both parts of this definition (or all three, if you take targeting and appeal of the product as separate matters). You’ll probably also realise that children see, and are influenced by, a lot of advertising that doesn’t meet the definition, especially because the product also appeals to adults (for example chocolate, or ice cream). Moreover, only a tiny amount of advertising meets the first aspect. This is why CMA submitted that ‘directed primarily to children’ should be replaced with ‘likely to attract the attention of children’, that the word ‘principal’ should be replaced by ‘significant’ and that the two ‘ands’ underlined above should be replaced with ‘or’. Our proposed definition would have read: ‘Advertising or Marketing Communications which, having regard to the theme, visuals or language used, are likely to attract the attention of Children or are for goods, services and/or facilities which are targeted toward or have significant appeal to Children.’

The definition in the new Code reads as follows:

Advertising that targets Children and which is determined by the context of the advertisement and the following three criteria:

1. Nature and intended purpose of the product being promoted is principally or significantly appealing to Children;
2. Presentation of the advertisement content (e.g. theme, images, colours, wording, music and language used) is principally appealing to Children;
3. Expected average audience at the time or place the advertisement appears includes a significant proportion of Children.

Although this definition retains the problematic and highly limiting concept of ‘targeting’ children (rather than being likely to draw their attention), we are pleased to see ‘significantly’ being introduced as an alternative to ‘primarily’, and the apparent demotion of the product to one of three ‘criteria’ for determining whether an ad targets children. However this definition doesn’t make the role of the criteria clear: must an ad satisfy all three of them to fall within the definition? If so, it’s still a very restrictive one, possibly even more restrictive as the ad must meet product-based, content-based and audience-based criteria. Or is the process more of an open-textured one, where the Panel balances all the criteria in an impressionistic way? If so, the definition could be a good deal broader than the current one – but on the other hand it leaves a lot of discretion to the Panel. Nor are we quite sure what ‘a significant proportion of Children’ means – is it that children make up a significant proportion of the audience? Or that a significant proportion of children are in the audience?

All of these questions are answered in the Practice Note: the Community Panel will consider all three criteria in every case, and ‘[t]he weighting given by the Community Panel to each of the three criteria will be determined on a case by case basis.’ The discussion of the ‘significant proportion’ point makes it clear that it’s the first meaning suggested above – so the logic is that if enough adults are watching the same ad, children don’t need any special protection. We are disappointed that the AANA has not been able to draft a definition that was sufficiently clear as not to need further explanation in a separate document.

We note finally the introduction of ‘the context of the advertisement’ as a consideration separate from the three criteria. It’s hard to figure out what this could mean, but we can be certain that it will mean whatever the Panel wants it to mean.

Returning to the example of frightening or distressing content, the images we are concerned about are rarely if ever found in advertising that meets such a restrictive definition of advertising to children. Rather they are in advertising that’s aimed at adults but that children are bound to see – for example on bus shelters. In this sense the inclusion of the word ‘unreasonably’ will make no difference because the whole section will have little or no application in the real world.

Throughout our submission we drew attention to the position of a consumer who is considering putting in a complaint. We have always taken the view that this should be a central consideration in any system that has no active monitoring but relies entirely on members of the public to take the trouble to complain: what can make that task as simple as possible, and give people confidence that it will be worth the effort? While the new version of the Code is briefer and in one sense simpler, it still requires cross-referencing to the Practice Note to get a full understanding of its meaning. Nor has there, apparently, been any attempt to facilitate complainants’ job, such as providing summaries of the Community Panel’s past decisions.

Meanwhile, some of the simplification appears to undercut the AANA’s stated purposes. For example, the section on safety has been removed, but the Practice Note on the Community Standards section reintroduces the concept: ‘Advertising to Children must not … [promote] products or services unsuitable or hazardous to children or [encourage] unsafe practices.’ Yet the AANA’s media release contains the statement that the new Code ‘places a clear ban on directing advertising of hazardous products to children such as vapes, kava or highly caffeinated drinks’. There is no mention of those products in either the Code or the Practice Note, and even if they are accepted as clear examples of ‘unsuitable or hazardous’ products, the ban itself can hardly be called ‘clear’ if it is buried in a Practice Note. The Code itself refers only to Community Standards, and it’s not at all obvious that this does or should include safety.

As with the definition of advertising to children, it’s disappointing that the AANA was not able to draft a section for the Code with sufficient clarity that it would not need further explanation in the Practice Note.

Overall, the new Code offers very little for children and those who care for them, and prompts the question: isn’t it time the government finally recognised the failings of industry self-regulation, and stepped in to fulfill its obligations to children and families?