Who: Broadcast Committee of Advertising Practice (BCAP)
Where: UK
When: 28 July 2016
Law stated as at: 5 September 2016
What happened:
BCAP has changed its rules around broadcast adverts aimed at persuading children to buy goods or services (or pestering their parents to buy things for them), in order to bring the BCAP Code into line with applicable underlying laws.
The direct exhortation (‘pester power’) rule
Previously, BCAP rule 5.9 provided as follows:
Advertisements must neither directly exhort children to buy a product or service nor encourage them to ask their parents, guardians or other persons to buy or enquire about a product or service for them.
This rule principally derives from the Consumer Protection from Unfair Trading Regulations 2008 (“CPRs”), which aims to restrict unfair and misleading practices. In particular, section 28 of the CPRs prohibits the following:
Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them.
Softening the rule
In the eyes of BCAP, rule 5.9 went too far beyond the CPRs by prohibiting children from even asking their parents to enquire about a product or service for them. BCAP pointed out that the CPRs derive from the Unfair Commercial Practices Directive (2005/29/EC) (UCPD), a maximum harmonisation directive, meaning BCAP isn’t legally permitted to implement rules which are stricter than those set down under the UCPD.
Following a public consultation on this point, which closed on 22 July 2016, BCAP decided to amend rule 5.9 so that it more closely reflects the construction and approach of the CPRs (and other applicable laws). The following specific changes have been made:
- the word encourage has been replaced by the word persuade;
- the rule is now constructed so as to ensure that the direct exhortation requirement applies to both (a) children buying a product or service and (b) persuading their parents to do the same; and
- the word ‘hire’ has been added in order to reflect the relevant provision from the Audio-Visual Media Services Directive (AVMSD) (the UCPD makes clear that its restriction on direct exhortations is without prejudice to the effect of the AVMSD).
The final version of rule 5.9, as amended, now reads as follows:
Advertisements must not include a direct exhortation to children to buy or hire a product or service or to persuade their parents, guardians or other persons to buy or hire a product or service for them.
Why this matters:
Although a relatively subtle shift, broadcast advertisers and those selling products to children should take note of this softening of the BCAP Code. It will no longer be prohibited for TV and radio adverts to encourage children to ask their parents (or others) to simply enquire about a product or service. Also, because only direct exhortations are prohibited, the risks associated with running this type of advert, which indirectly might have the effect of convincing children to pester their parents to buy the product or service, have been reduced.
Nonetheless, in practice the line between encouraging children to ask parents to enquire about a product and encouraging children to persuade their parents to buy that product may be hard to draw. In some circumstances, a cautious approach will still be required.
