1. Introduction
Under current Norwegian legislation, children are widely protected from marketing activities. Examples of legislation are the Marketing Act, Chapter 4, on special protection of children, the Broadcasting Act and its regulations on advertising to children and young people, the Education Act and the Private Schools Act.
This Code supersedes the Code of 2013 (first established in 2007 and updated in 2009), and is intended as a supplement to the applicable law. The Code covers current regulation of marketing to children, but is also intended to give children extended protection, and thus goes further than current legislation. This guidance provides a detailed explanation and reference to relevant decisions on certain sections in the code applicable from 01.09.16.
2. Marketing concept
The concept of marketing is a wide one and encompasses all types of initiatives for promoting sales. However, three limitations are noted in Section 2 under the definition of marketing.
Code Section 2a
Section 2a exempts from the definition of marketing »the actual product including packaging». This means that product design, packaging, wrappers, etc., will not in themselves be regarded as marketing. The Code is thus not intended to prevent the development of new products, including products with an appeal for children. However, the extent to which the product appeals to children will have a significance on how the product can be marketed.
Even though the packaging is exempted from the definition of marketing, it is important to clarify that the intentions of the Code also apply to the packaging. The packaging may not, for example, have such a character that the product is almost secondary. Decision 12 -2016 M&Ms deals with such a problem.
Code Section 2b
Section 2b of the Code exempts the ordinary display of a product at the point of sale from the definition of «marketing” specifically aimed at children. Ordinary display includes shelf placement and rental of floor space for display of goods.
At the same time attention is drawn to Section 1 Background, which states that as far as is practicable the industry shall exercise care in the placement of products on the MFU’s product list.
The question of what is permitted as «ordinary display» must be subject to a concrete assessment, in which, beyond the actual display, any use of figures, posters, images etc., must be considered. The total impression of the display will decide whether the display is to be regarded as ordinary or not.
Example:
Rental of floorspace in a shop.
If floorspace is rented for accommodating packs of a product which can be regarded as particularly appealing to children, this will not be covered by the Code. However, if various advertising elements with a particular appeal for children are linked to the display, for example, by having a figure which can be regarded as having a particular appeal for children standing next to the packs, this will not be an ordinary display, and will be a marketing activity covered by the Code.
The decisions from case 4-2014 Kinder Surprise, case 7-2014 Kinder Julenissehus, case
1-2015 Ahlgrens bilar and case 5-2014 Lekebiloppstilling, illustrate displays that cannot be regarded as ordinary in the opinion of MFU. These are considered as being specifically aimed at children.
Code Section 2c
Section 2c exempts from the definition of «marketing» sponsorships which only involve the use of the sponsor’s name, the sponsor’s trademark or a product trademark. A trademark is a special symbol for a company’s goods and/or services. A trademark may consist of any kind of sign, but must be capable of graphical representation. For example, a trademark may consist of words and word combinations (e.g. a slogan), names and logos.
Remuneration for the sponsored company displaying the sponsor’s name and/or trademark may be pure cash contributions, exclusive sales agreements, free products or free services. Free products could, for instance, be food or drink sold at events. With regard to samples which are intended to be distributed to children, the provision states that this must not be without the prior consent of parents or other responsible persons.
Other responsible persons could be a parents’ committee, a sports board or a parents’ representative for a class.
It should be clarified that schools must not be an advertising arena. Bodies which market food and drink must back up the authorities’ efforts to keep schools advertisement-free. Activities must be in accordance with the Education Act and the Private Schools Act. Any initiatives aimed at schools must be devised in consultation with the school.
3. Assessment of when marketing is specially aimed at children
Section 2 of the Code states that marketing of products listed in the Guidance must not be specially aimed at children under 13 years. The question is then, when should marketing be considered as being specially aimed at children under 13 years? Section 5 of the Code states that an overall assessment must be made, in which three factors in particular must be considered. Account must be taken of:
a) the extent to which the marketed products have particular appeal for children
b) the extent to which the medium used has particular appeal for children
c) the extent to which the advertising elements used have particular appeal for children
It should be emphasized that a product with a particular appeal for children will never in itself be regarded as marketing. This is clearly stated in the definition of marketing, and is also clarified in Section 4 of the Code, unless the product is secondary to the packaging, see Section 2a of this guidance.
Code Section 5a
According to Section 5a of the Code, in assessing whether a specific instance of marketing is specially aimed at children, it will also be important to see the extent to which the products marketed are of particular appeal to children. Although a very child-oriented product itself will be permitted, there will be limited potential to market the product – and any marketing must clearly appear as aimed at adults. The more child-oriented a product is, the more stringent the requirements for the methods that may be used in marketing. The product for which marketing is undertaken, and the design and packaging of the product, will thus be relevant in the overall assessment to be made.
Products deemed specifically aimed at children, such as Kinder eggs and Happy Meals, will have far greater restrictions on their marketing than Freia’s Premium chocolate, which is considered a product aimed at an adult audience.
Code Section 5b
According to Section 4a of the Code, in assessing whether a specific instance of marketing is specially aimed at children, it will be important to see the extent to which the media used are of particular appeal to children. In this assessment, it will be particularly significant if children are the express target group for the medium used.Particular caution should also be exercised when children are present alone in a media consumption situation.
Example:
Children’s comics.
This medium is so strongly aimed at children that any marketing of products covered by the Code will be regarded as marketing specially aimed at children. Marketing of potato crisps in a children’s comic will thus contravene the Code, even though the product of potato crisps appeals to all age groups.
Decision 4 2015 Coca-Cola, Big Cut and Smørbukk is an example of the use of media considered to be specifically aimed at children.
If a company uses elements, games, contests, etc. with special appeal to children on its website, the website will be regarded as a medium with particular appeal to children. This is as opposed to a company that uses its website to reach an adult audience or other businesses. The content on the company’s homepage will thus be crucial in relation to whether the website should be considered as a medium with particular appeal to children or not. The same is true for a product’s website.
An age limit of 13 years or older for online services is not in itself decisive in determining whether a marketing activity can be considered not to be specifically aimed at children. That means for example that the use of language and imagery must be taken into consideration.
Example:
Activities that use social media as an instrument for receiving child oriented contest elements relating to products specifically aimed at children. Case August 2016 Hakkebakkeskogen Ice illustrates this.
When purchasing advertising on digital and social media where one can actively exclude the audience of children under 13 years, the advertiser is obliged to do so.
The decisions in case 4 2014 Happy Meal Happy Studio shows the use of a play site that was considered to be in contravention of MFU’s code.
A programme which is regarded as a children’s programme under the Norwegian Broadcasting Regulations will be regarded as a programme with particular appeal for children under the Code. According to the Norwegian Broadcasting Regulations, Sections 3-6, fifth paragraph, a programme will be regarded as a children’s programme when children are regarded as its primary target group. When assessing whether a programme is to be regarded as a children’s programme, according to the regulations weight must be given to the following factors:
- the contents and form of the programme
- whether children under 13 years take part in it
- the time at which the programme is broadcast
- who the potential viewers are in relation to the transmission time
- the actual viewers
- the use of language in the programme
TV programmes transmitted before 21:00 hours will normally be seen by children, and under the Code no advertising with particular appeal for children for products covered by the regulations may be broadcast before 21:00 hours. Marketing broadcast after 21:00 hours will not be regarded as marketing specially aimed at children. This is also clarified in the Code and is in line with current practice.
Code Section 5c
According to Section 5c of the Code, in assessing whether a specific instance of marketing is specially aimed at children, it will be important to look at the extent to which the elements used are of particular appeal to children. An example of the use of elements is a decision 10 2015 Mr Freeze. If the elements used have a particular appeal to children, this alone will be enough to confirm that the marketing is specially aimed at children, and that it thus falls within the prohibition in Code Section 2. This will be the case, even if the product in itself is not specially aimed at children, and the medium used is neutral in respect of age groups. Elements with a particular appeal to children may for example be the marketing of free gifts with a particular appeal to children.
A free gift must not have such a character that the product is secondary.
Example:
Attaching a children’s film to a package of chocolates would be contrary to the intention behind the Code, and a circumvention of the Code that is not permitted.
The free gift of a children’s film will have such great appeal to children, that the product itself, the chocolate, becomes secondary.
Decision 1 2014 Perle and Bruse from Hansa and Decision 3 2016 Kelloggs Coco Pop Crunchers deals with supplementary benefits.
Another element that particularly appeals to children is a contests where the prize appeals especially to children. For example, a marketing campaign that entails the possibility of winning tickets to Legoland will normally be in contravention of the Code unless the place, time, etc. of the marketing dictates that the competition is clearly not aimed at children. Yet a prize that involves a gift certificate from XXL will not be in contravention, as a gift certificate from XXL does not have a particular appeal to children.
All contests related to products that are covered by the Code shall have an age limit of at least 13 years.
Decision 2 2014 Barnas Favoritter illustrates this.
Example:
The marketing of biscuits using characters from Frozen on boards on the bus.
This would be in contravention, despite the fact that a poster on the bus is not a medium that is specifically aimed at children and a biscuit is a product that appeals to all age groups. Here the element of the Frozen characters has so much appeal to children that this element itself means that the marketing would be in contravention of the ban. Reference is made to the characters in Frozen having a huge appeal to children, including the fact that Frozen is a part of a huge industry, and a whole world has been developed around the characters. Cinema films, books, toys, famous people, etc. are associated with the characters. Frozen thus has a particularly strong appeal to children through multiple channels.
Characters which appeal to children, but that are only developed in connection with a particular product, generally will not have as much appeal to children as characters from Frozen in the above example.
The Guidance was updated 1/9-2016.
