The Consumer Ombudsman
March 1999
Guidelines on the Consumer Ombudsman’s Practice
Marketing in relation to
Children and Young People
The Consumer Ombudsman  Visiting address: Strandveien 35, Lysaker, Norway
Correspondence address: P.O. Box 8173 Dep, N-0034 Oslo, Norway
Tel. +47 67 59 96 00  Fax: +47 67 58 20 61  Web site: http://www.forbrukerombudet.no
TABLE OF CONTENTS
1.
INTRODUCTION ........................................................................................................ 3
2.
CHILDREN AND ADVERTISEMENTS ............................................................... 3
3.
THE LEGAL BASIS .................................................................................................... 4
3.1 THE MARKETING CONTROL ACT ...................................................................................... 4
3.2 MORE ABOUT SECTION 1, PARAGRAPH 1 OF THE MARKETING
CONTROL ACT ................................................................................................................... 5
3.3 PARTICULARLY OBTRUSIVE ADVERTISEMENTS ............................................................... 7
3.4 THE MARKETING CONTROL ACT AND THE BROADCASTING
REGULATIONS ................................................................................................................... 8
4.
IN PRACTICE ............................................................................................................ 10
4.1 IDENTIFYING ADVERTISEMENTS..................................................................................... 10
4.2 THE PRINCIPLE OF ILLEGALITY ..................................................................................... 11
4.3 BUSINESS PRACTICES - CHILDREN AND YOUNG PEOPLE AS A
TARGET GROUP ............................................................................................................... 12
4.3.1 Direct mail ............................................................................................................... 12
4.3.2 Invitations to enter into purchase agreements ......................................................... 12
- Telesales ................................................................................................................. 13
- Premium telephone services................................................................................... 13
4.3.3 Other business practices .......................................................................................... 14
4.3.4 Special issues in the marketing of subscriptions and clubs ..................................... 14
4.4 AN ADVERTISEMENT`S CONTENTS AND THE USE OF EFFECTS .................................... 15
4.4.1 Product presentation ss. 2 and 3, cf. s. 1 .................................................................. 15
4.4.2 Marketing of dangerous products. Incitements to criminal offences, dangerous
behaviour, breaches of safety standards .................................................................. 17
4.4.3 The use of effects that are likely to create an unreasonable pressure to buy ........... 19
- The use of enticements ........................................................................................... 20
- Invitations to purchase ........................................................................................... 20
- Playing on a bad conscience, social insecurity etc. ................................................ 21
4.4.4 Advertisements that create terror, fear or anxiety ................................................... 22
4.4.5 The use of aggressive effects such as violence, sex, intoxicants ............................. 23
4.5 ADVERTISEMENTS ON VIDEO CASSETTES ....................................................................... 26
4.6 ADVERTISEMENTS ON THE INTERNET ............................................................................ 26
2
1. INTRODUCTION
It is the job of the Consumer Ombudsman (Forbrukerombudet - CO) to
monitor, in the interests of consumers, that the marketing and terms of contracts of businesses comply with the Marketing Control Act (MCA). The
Marketing Control Act covers all advertisements directed at Norwegian
consumers, whatever the medium.
How the Marketing Control Act is to be applied is determined by the Market
Council (Markedsrådet), which also acts as the “court of appeal” for the
CO’s cases. The CO therefore takes the Market Council’s practice as its basis in areas where relevant cases arise.
These guidelines aim to provide general information on the practice of the
CO and the Market Council in the area of marketing in relation to children
and young people. The CO’s guidelines on its practice have two objectives.
They are designed to ensure consistency and equality in the way the CO
deals with cases while at the same time forming part of the information directed at businesses. The guidelines are not regulations and they do not provide an exhaustive presentation.
In the presentation below, Section 3 deals with the regulations that apply to
marketing in relation to children and young people and is followed in Section 4 by a description of the CO’s practice in this area.
2.
CHILDREN AND ADVERTISEMENTS
Every day, advertisements expose us to many impressions through a variety
of media. As frequent media users, children and young people end up seeing
a lot of advertisements that are not specifically intended for them. At the
same time, advertisers seem to be directing their advertising to an ever increasing extent at the younger target groups.
Research shows that both the age of the child as well as the form of the advertisement can play a decisive role in the child’s understanding of what an
advertisement is and what its purpose consists in. These factors also determine how a child recognises an advertisement and his or her ability to distinguish the advertisement from regular programmes. How to identify an
advertisement is therefore especially important where minors are concerned.
The fact that children are easily influenced and lack experience contributes
to their inability to protect themselves against the various effects that marketing uses and the forms it comes in.
Children and young people therefore have a greater need of protection
against exposure to pressure/influence from advertisements than adults.
3
The definition of “children and young people” is taken to be minors up to
the age of 18. The Consumer Ombudsman does not operate with any clear
boundaries when it comes to designating what age the term “child” covers,
but the younger the target group of the advertisement is, the stricter the
judgement will be.
3.
THE LEGAL BASIS
3.1 THE MARKETING CONTROL ACT
Area of
application
The Marketing Control Act covers all marketing that is directed at the
Norwegian market. It applies to advertising in every media, including
marketing on television and radio and the Internet (see points 3.4 and 4.6
respectively).
The Marketing Control Act is primarily directed at advertisers, who have
the responsibility for ensuring that their marketing complies with the regulations laid down in the act. The medium, or the advertising organ, also has a
joint responsibility.1
The Marketing Control Act does not contain any special regulations as far
as children and young people are concerned, and neither is there any prohibition against directing advertisements at this group in general.
Children and
young people/
good marketing
practice
The Marketing Control Act does, however, lay down certain barriers for
advertising in relation to children and young people. These are based on the
principles that it should be easy to distinguish advertising from other
material and that there should be no exploitation for commercial purposes of
how easily children and young people can be influenced, of their credulity,
trust and inexperience.
Section 1, paragraph 1 of the MCA prohibits actions that are unfair on consumers or otherwise in conflict with good marketing practice. See point 3.2
for more a detailed description of this provision.
Advertising in relation to children and young people is subject to stricter assessments, and there is more scope for the Marketing Control Act to be regarded as violated when the marketing is directed at minors.2
Against this background, marketing in relation to children and young people
is also assessed pursuant to the MCA, s. 1, paragraph 1 when the act’s other
provisions are violated.
1
Cf. MCA s. 17 and MR case 19/92 Thorud Marketing AS vs. CO.
In its case no. 1/79, the Market Council established that children and young people have a right to special protection. Section 1, para. 1 of the MCA contains a distinct standard of care that has to be followed, and special
discretion must be shown in marketing directed at children and young people.
2
4
Misleading
representation
Insufficient
guidance
The use of
enticements
Section 2 of the MCA prohibits the use in the conduct of business of
incorrect or in any other way misleading representations that are likely to
influence the demand for or supply of goods, services or other performances.
In accordance with Section 3 of the MCA, it is prohibited in the conduct of
business to use representations that are likely to influence the demand for or
supply of goods, services or other performances when the representation
does not provide adequate or sufficient guidance or introduces irrelevant
matter and must therefore be regarded as unfair.
In accordance with Section 4 of the MCA, it is prohibited in the conduct of
business to seek to promote the sale of a product or products, services or
other performances (the main performance) by offering or letting there be
offered a premium to the consumer. A premium is regarded as any additional performance that is linked to the sale of the main performance without
there being a natural connection between the two performances.
Section 5 of the MCA prohibits seeking to promote in the conduct of business the sale or purchase of a product or products, services or other performances by conducting a lottery or other competition where the person to
whom a benefit is awarded is selected in full or in part by chance.
3.2
MORE ABOUT SECTION 1, PARAGRAPH 1 OF THE MARKETING
CONTROL ACT
Section 1, paragraph 1 of the MCA reads:
"In the conduct of business, no act may be performed which is unfair in relation to consumers or which is otherwise in conflict with good marketing
practice."
This is a general provision where the concrete assessment of each individual
case is made in relation to the advertisement’s content and the effects that
are used.
The criterion “good marketing practice” was incorporated in the MCA, s. 1
with the amendment of the act that came into force on 01.04.97. This
amendment is designed to clarify and tighten the provision in s. 1, paragraph
1. Earlier practice that was previously linked to the criterion of unfairness
will therefore continue to be relevant, but will now be interpreted in the
light of the amended version of the act.
With the concepts “unfair in relation to consumers” and “good marketing
practice”, section 1 of the MCA is primarily an ethical provision, where the
experience and the attitudes of the person who receives/views the advertisement play a central role in the assessment of how the advertisement is
perceived.
5
By introducing the term “good marketing practice”, the Norwegian parliament agreed with the Ministry’s assessment3 that stricter requirements than
normal should be placed on marketing in relation to children. It is especially
important that children are protected against exploitation of their lack of experience.
Article 16 of the European Union’s directive on television advertising also
contains provisions on advertising directed at children and young people.4
The Ministry, however, refers in its preliminary work5 to the preparatory
committee’s statement6 that the list in article 16 of the television directive
that governs television advertising directed at children serves as a guideline
for the interpretation of the term “good marketing practice” and the criterion
of unfairness, and that even though the directive only covers television advertising, it should also serve as a guideline for other forms of marketing.
Similarly, the preliminary work also refers to the Code of Advertising Practice of the International Chamber of Commerce (ICC) for the interpretation
of whether a marketing measure is in conflict with section 1 of the MCA.
Article 14 of the Code contains provisions on advertising in relation to children and young people. Importance is therefore attached to article 14 of the
ICC’s Code of Advertising Practice and article 16 of the EU Directive as
relevant elements in the interpretation of whether an advertising measure is
in conflict with section 1, paragraph 1 of the MCA.
Article 14 of the ICC’s Code of Advertising Practice reads:
“The following provisions apply to advertisements addressed to children and young people
who are minors under the applicable national law:
1.
a.
b.
i.
ii.
iii.
iv.
c.
3
Inexperience and Credulity
Advertisements should not exploit the inexperience or credulity of children and young
people.
Advertisements should not understate the degree of skill or age level generally required to use or enjoy the product.
Special care should be taken to ensure that advertisements do not mislead children
and young people as to the true size, value, nature, durability and performance of
the advertised product.
If extra items are needed to use it (e.g. batteries) or to produce the result shown or
described in the advertisement (e.g. paint) this should be made clear.
A product which is part of a series should be clearly indicated, as should the method of acquiring the series.
Where results of product use are shown or described, the advertisement should
represent what is reasonably attainable by the average child or young person in the
age range for which the product is intended.
Price indication should not be such as to lead children and young people to an unreal
perception of the true value of the product, for instance by using the word 'only'.
No advertisements should imply that the advertised product is immediately within
reach of every family budget.
Proposition 70 1995-96 to the Odelsting, p. 11.
Directive 89/552/EEC.
5
Proposition no. 70 1995-96 to the Odelsting, p. 10.
6
Official Norwegian Report 1995L 2, point 3.1.2.
4
6
2.
Avoidance of Harm
Advertisements should not contain any statement or visual presentation that could
have the effect of harming children and young people mentally, morally or physically
or of bringing them into unsafe situations or activities seriously threatening their
health or security, or of encouraging them to consort with strangers or to enter strange
or hazardous places.
3.
a.
Social Value
Advertisements should not suggest that possession or use of a product will alone give
the child or young person physical, social or psychological advantages over other
children or young people of the same age, or that non-possession of the product would
have the opposite effect.
Advertisements should not undermine the authority, responsibility, judgment or tastes
of parents, taking into account the current social values.
Advertisements should not include any direct appeal to children and young people to
persuade their parents or other adults to buy advertised products for them.”
b.
In the Directive 89/552/EEC of the Council of the European Union with later amendments, it is stated in article 16:
"1. Television advertising shall not cause moral or physical detriment to minors, and shall
therefore comply with the following criteria for their protection:
(a) it shall not directly exhort minors to buy a product or a service by exploiting their inexperience or credulity;
(b) it shall not directly encourage minors to persuade their parents or others to purchase
the goods or services being advertised;
(c) it shall not exploit the special trust minors place in parents, teachers or other persons;
(d) it shall not unreasonably show minors in dangerous situations.
2. Teleshopping shall comply with the requirements referred to in paragraph 1 and, in
addition, shall not exhort minors to contract for the sale or rental of goods and services."
3.3 PARTICULARLY OBTRUSIVE ADVERTISEMENTS
In the assessment of what is considered to be in conflict with section 1, paragraph 1 of the MCA, weight is placed on whether the advert stands out in a
particularly obtrusive manner. Importance will therefore be attached to
which medium/advertising organ is used.
With the amendment that came into force on 01.04.97, a new third paragraph was introduced into section 1 of the MCA:
"An evaluation of whether par. one or two has been offended against may,
among other things, place emphasis on whether the advertising for reasons
of its design, format, extent or other measures, appears as particularly obtrusive."
For example, superboards and tram advertisements can more easily be regarded as “particularly obtrusive” than an advert in a magazine or in a
newspaper.
7
Cinema and
television
advertisements
Television and cinema are regarded as especially strong and obtrusive
media with a large influential power where strong effects are readily
adopted. The CO has dealt with several cases involving commercials in
association with children’s presentations at the cinema. As the Marketing
Control Act does not apply any total prohibition against directing advertising at children, advertising
in connection with children’s presentations at the cinema cannot be prohibited on a general basis. In case 5/75, which concerned the relationship
between cinema advertising and the screening of the feature film, the Market Council determined that the showing of commercials beyond the time
that is announced for the screening of the feature film cannot be considered
to be in conflict with the Marketing Control Act. It came to this conclusion
on the basis that this is an established practice that most cinemagoers are
aware of.
In accordance with the CO’s practice, however, a requirement is laid down
that commercials screened in association with a children’s presentation at
the cinema should follow the age category of the feature film, and that
screening a commercial that may have a frightening effect, is likely to create
anxiety or may play on violence or sex in association with a children’s
presentation would be in conflict with MCA, s. 1, cf. points 4.4.4 and 4.4.5
below.
In several cases the CO has also regarded it as unfair to broadcast this type
of commercial on television at times when it must be expected that children
will make up a large part of the viewing audience.
Trailers
The Internet
The CO has refrained from taking action against trailers – the screening by
cinemas and television companies of excerpts from future presentations – as
these are usually regarded as part of the editorial content. The CO has, however, received a number of complaints concerning trailers that have contained violent passages or which have had a frightening effect and have
therefore been unsuitable for children. The CO has then urged that this type
of insert should not be broadcast at times when it must be expected that a lot
of children will be watching television. Trailers at the cinema should be
adapted to the age category of the feature film.
The Internet as a marketing channel raises special questions and is therefore
dealt with separately under point 4.6.
3.4 THE MARKETING CONTROL ACT AND THE BROADCASTING REGULATIONS
The Broadcasting Act of 4 December 1992 with corresponding regulations
contains special rules that apply to television and radio commercials and the
relationship to children and young people. While the advertiser is responsible for ensuring that the commercial complies with the Marketing Control
Act, the broadcasting regulations are directed at the broadcasting company.
8
A broadcasting company is defined in the Broadcasting Act as a company
that holds a licence to run this type of business, cf. the Broadcasting Act, s.
2-1.
Section 3-1, paragraph 2 of the Broadcasting Act prohibits television and
radio commercials that specifically target children. In s. 3-6 of the regulations, more detailed directions are given on the interpretation of the provision as well as supplementary rules on the relation to children and young
people under 18 years of age. Cases coming under the broadcasting regulations will not be discussed in more detail in these guidelines. The fact that
the media is television can, however, be important in the assessment pursuant to the Marketing Control Act, and s. 3-6 of the regulations is in some
cases applied as an element in assessments of television commercials according to the Marketing Control Act.
Norwegian viewers have access to channels that are directed at the Norwegian market but are broadcast from other countries. Within the EEA, the
broadcasting regulations are in some areas harmonised by EU directives.7
The directives are implemented in the Broadcasting Act. The rules governing broadcast commercials directed at children is one of the areas that are
harmonised through the directive, and the CO can therefore not take action
against broadcasts from companies established in other EEA countries pursuant to a Norwegian prohibition against advertising specifically directed at
children. In accordance with the directive, it is the “principle of the country
of establishment” that is applicable here. This means that it is the law in the
country where the company is established that is applicable, and it is also
the authorities of that country who can take action.
The broadcasts of TV3 will, for example, be subject to English legislation
and authority even though they are directed at the Norwegian market. As
England does not have any prohibitions against advertising specifically directed at children, we can see this kind of advertising on TV3.
The Consumer Ombudsman can, however, continue to take action against
advertisers pursuant to the Marketing Control Act, for example against misleading advertisements.8
In addition, reference is made to the Consumer Ombudsman’s guidelines on
the practice concerning television advertising.
7
Directive 89/552/EEC, the television directive of the Council of the European Union, and amendment directive
97/36/EC.
8
Judgement of the EEC Court on 9 July 1997 in case C-34/95 The Swedish Consumer Ombudsman vs. De
Agostini (Svenska) Förlag AB and the judgement of the Swedish court Marknadsdomstolen of 20.11.98 in the
same case.
9
4.
IN PRACTICE
In accordance with the long-term practice of the Market Council and the
CO, strict requirements are placed on advertisements directed at children
and young people. The basis is that special care should be shown in marketing that targets this group. There is more scope for a marketing measure to
be considered in conflict with s. 1, paragraph 1 than when the marketing is
directed at other groups. It is especially important that children are protected
against the explotation of their natural credulity and inexperience.
In the presentation below, some issues are first discussed (in points 4.1 and
4.2) that relate to the general practice that is also important when it comes to
marketing that targets children and young people. This is followed by a discussion in point 4.3 on the practice linked to business practices where children are the advertising target group, and on various forms and types of
marketing where particular problems related to children and young people
arise.
Point 4.4 then looks at the practice related to the assessment of the content
of the advertising and the effects that are used. Examples associated with the
content include both cases where children and young people are the advertising target group and marketing in general where it is emphasised that the
advertising can to a large extent be seen by children and young people.
To conclude, points 4.5 and 4.6 deal with some special questions related to
advertising on video cassettes and on the Internet.
4.1 IDENTIFYING ADVERTISEMENTS
The practice pursuant to the Marketing Control Act, s. 1, paragraph 1 is that
advertisements are to be clearly distinguished from editorial material. Viewers of the advertisements should be able to see very easily that what they are
looking at is an advertising message. It should be possible to identify and to
comprehend the advertisement immediately as an advertisement. This is of
particular importance when it comes to children and young people.
Article 12 of the ICC’s Code on Advertising Practice states among other
things: “Advertisements should be clearly distinguishable as such, whatever
their form and whatever the medium used.” This rule is also incorporated in
the Code of Ethics of the Norwegian Association of Advertising Agencies
(Reklamebyråforeningen).
The principle is also expressed in special rules in the broadcasting regulations. Section 3.2 of the Broadcasting Act states: "Television advertisements
shall principally be broadcast in blocks between programmes and shall be
clearly separated from the ordinary programme service by special acoustic
and optical signals." A similar principle applies to radio advertising.9
9
The Broadcasting Regulations, s. 3-9.
10
Problems surrounding identification also occur when elements of entertainment are mixed into the advertisement:
CO case 98-1877 Denofa Lilleborg
The advertiser had purchased an entire advertising block and began it with an introduction
in which a small fairy-tale figure presented a competition. This competition was designed
so that, to get the right answer, the entire block had to be watched. After the four commercials had been screened, the fairy-tale figure reappeared with additional information on how
to send in the answer and take part in the draw for a free trip. The CO questioned the legality of mixing entertainment and a competition in the advertising block in relation to section
1 of the Marketing Control Act, particularly because the fairy-tale figure and the competition appealed to children.
Special problems related to this type of mix are associated with advertising
on the Internet. See point 4.6 for a more detailed description.
4.2 THE PRINCIPLE OF ILLEGALITY
Marketing that is in conflict with provisions of special legislation can also
be regarded as in conflict with section 1, paragraph 1 of the Marketing Control Act. The prerequisite here is that there is a conflict with rules designed
to protect consumers. This point of view is the result of reliable practice
both of the Market Council and of the CO.
Market Council case 17/93 Consumer Ombudsman vs. TV 2 AS and Nordisk Kellogg
AS
The case concerned the question of whether Nordisk Kellogg could be prohibited from using a commercial for Kellogg’s Smacks on television. The CO considered the commercial
to be specifically directed at children and therefore in conflict with the Broadcasting Act, s.
2-1, paragraph 2. If it was found to be in breach of this law, the CO decided that the commercial would also be in conflict with the MCA, s. 1, paragraph 1.
The commercial showed two children eating breakfast in the garden. The children clap their
hands and stretch them out to the frog on the box of Smacks in front of them. The frog
jumps out, pours Smacks into a bowl and flies off together with the children on the back of
a large white bird to a castle. Here, a princess conjures up a gift for each of the children before they fly off home again. Back in the garden, the frog hops back into the box.
A majority of the Market Council concluded that the commercial had to be regarded as specifically directed at children. The Council considered that the prohibition against directing
television commercials specifically at children contained such a strong protection of the
consumer that a breach of the provision also had to be seen as unfair according to the MCA,
s. 1, paragraph 1. A prohibition order was therefore also placed on the advertiser.
CO case 95-1616 AS Hjemmet-Serieforlaget
The case concerned the marketing of Donald Duck & Co. and P4’s laughter competition in
the comic Donald Duck & Co. An insert in the Donald Duck comic contained an invitation
to take part in the competition. To take part meant that a premium service hotline had to be
used.
Section 10 of the regulations on premium services, that is information, entertainment and
adult telephone services, states: “The service must not be specifically directed at anyone
under the age of 16.”
The CO pointed out that if the competition was in conflict with s. 10 of the regulations,
then this could mean that the advertising measure was in conflict with the MCA, s. 1, paragraph 1. Irrespective of this, the CO regarded the invitation to children to make use of premium services as a breach of the standards of care that are to be taken in accordance with
the MCA, s. 1. Games and competitions must be regarded as services that are open to misuse and that can therefore lead to heavy costs for the subscriber. For more on telemarketing
services, see also point 4.3.2.
11
The Premium Telephone Services Council (Teletorgrådet) subsequently concluded that this
case had to be regarded as a breach of the relevant provision in the telemarketing regulations.
4.3 BUSINESS PRACTICES – CHILDREN AND YOUNG PEOPLE AS A
TARGET GROUP
4.3.1 Direct mail
In case 10/75 (Det Beste), the Market Council stated that “the use of personally addressed offers can obviously not in itself be regarded as illegal”, as
this is a widespread and well-known form of marketing that has to be accepted. The Market Council went on, however, to state that there must also
be a limit on how far it is possible to go “in the use of the means of influence that personally addressed postal deliveries allow” without coming into
conflict with the Marketing Control Act (ss. 1 and 2). The requirements will
be stricter on marketing addressed directly to children than if similar material is directed at adults.
Special care must be shown when collecting personal data from children and
in the use of this data for marketing purposes. Businesses should remove
this kind of information from their lists so that children do not receive direct
marketing which is not intended for this target group.
CO case 91-2814 Bokklubben Nye Bøker
The case concerned Bokklubben Nye Bøker’s mailing of personally addressed advertising
material to a seven-year-old girl, among others. The offer was sent out on the basis of the
register of members of Bokklubben’s children’s club. The CO took the case up with the
company, and Bokklubben Nye Bøker stated that the mailing was the result of a mistake.
The target group of the advertising material was the members’ guardians, and a mistake in
the address selection resulted in the child’s name being inserted in the cases where the
guardian’s name was not registered.
CO case 97-1972 Køhn Libris
The case concerned Køhn Libris’ mailing of personally addressed advertising material to
children. The company had got the addresses from its own lists. At the start of the school
year, the bookseller had given a book to children as part of a nationwide arrangement. Children had to “sign for receipt” by indicating their name and address on a card. Køhn Libris
confirmed that the lists from this arrangement should have been removed from the register.
4.3.2 Invitations to enter into purchase agreements
In accordance with s. 2 of the Guardianship Act, a minor cannot himself or
herself dispose over his or her means or enter into legally binding obligations. The Guardianship Act lays down that a minor cannot contract a financial obligation without the consent of the Public Guardian's Office (Overformynderiet).10
On this basis, the Consumer Ombudsman has taken the position that acting
as if the minor is legally obliged to pay money must be regarded as an unfair
action in conflict with the MCA, s. 1. If the product in question is a type of
10
The Guardianship Act, s. 1 cf. s. 55.
12
product that would be relevant for minors to order, then the order must be
placed by an adult.
CO case 95-0777 GIGA AS
The case concerned direct mail sent to minors with a sample copy of the computer magazine GIGA and an offer involving the ordering of erotic CD-ROMs.
The CO considered the measure to be in conflict with the MCA, s. 1 both because the marketing contained an invitation to minors to enter into a purchase agreement and because the
distribution of marketing material for erotic CD-ROMs to minors had to be regarded as an
unfair action.
CO case 96-0109 Victell Nutrition
In personally addressed advertising mailed to children through their sports clubs, children
were invited to try a food supplement for 14 days for NOK 0. The children were then given
the opportunity to subscribe for the product.
The CO referred to s. 2 of the Guardianship Act and thought that it would be an unfair action according to the MCA, s. 1, paragraph 1 to conduct marketing directly to minors with
an invitation to enter into a purchase agreement that included the setting up of a financial
obligation.
- Telesales
Telesales are an especially obtrusive form of marketing. When it comes to
children, special care must be shown.
CO case 96-1961 Mr. Music
The case concerned Mr. Music’s marketing of subscriptions to minors. Using telephone
sales, the company addressed itself directly to children and offered them automatic membership in the Mr. Music club and a free CD if they paid the postage and packing for the
CD.
The CO pointed out that strict requirements have to be placed on marketing measures that
are directed at children and that direct marketing to minors with an invitation to enter into a
purchase agreement is considered to be in conflict with the MCA, s. 1. Mr. Music complied
with the CO’s assessments.
- Premium telephone services
Pursuant to the Act of 29 April 1899, the Ministry of Transport and Communications laid down regulations governing premium telephone services,
that is information, entertainment and adult services, on 3 March 1994. The
regulations apply to the establishment and operation of premium services
that are offered to subscribers to the public telephone network. Among other
things, they contain provisions on prices and the duty of telephone operators
and service suppliers to provide information. Section 10 of the regulations
states that these kinds of services must not be specifically directed at anyone
under the age of 16.
The Premium Telephone Services Council (Teletorgrådet) enforces the regulations governing premium services as far as the classification, content and
marketing of premium services are concerned.
The relationship between the regulations governing premium services and
the Marketing Control Act is discussed in more detail in point 4.2.
13
4.3.3 Other business practices
- Negative sales
The CO has decided that sending goods with or without an invoice or simply an invoice to a consumer without prior agreement while at the same time
giving the impression that the recipient must respond in a certain way so as
not to be bound by the offer is in conflict with the MCA, s. 1, paragraph 1.
Normally, no obligations arise for the recipient of this type of an offer.
Where marketing directed at children is concerned, there is more scope to
consider that a measure is giving the impression of an obligation.
CO case 97-2379 WWF World Wildlife Fund
A personally addressed offer to children declared: “To you who took part in the children’s
bamboo bear competition…If you want to become a Panda Friend, you can make a payment to this giro account. You will then receive a welcome pack with stickers, a certificate
and a forest poster with animals you can move, and more. As a Panda Friend you are playing your part in saving nature and the animals that live there. Welcome to the WWF.” The
CO decided the measure was negative marketing and in conflict with the MCA, s. 1, paragraph 1.
- Personal, direct address to children
Care must also be shown in personal addresses direct to children with a
view to sale. This type of address can easily place an unfair pressure on
children to buy. For the photographing of children at school and kindergarten, the Consumer Ombudsman has requested that the delivery of the
photos may not be conducted using children but must be made directly to
the adults who will pay for the photos if they want them. Personal addresses
to children can also have an aggressive and frightening effect on children.
CO case 95-1502 Futurekids
The case concerned the distribution of brochures from Futurekids computer school to children on their way to school. The marketing material was in this case directed at parents
with an offer to enrol their children in the computer school. However, complaints voiced
the fact that some children had experienced the situation as frightening. The CO found that
the measure could not in itself be considered to be in conflict with the MCA s. 1, paragraph
1. But it was pointed out that care should be shown when this type of method is used. According to the description in the complaints, addressing children directly and stopping them
on the way to school may well, in these circumstances, cause the children fear and anxiety.
Consideration must also be given to the fact that this kind of distribution of offers for computer schools may, for some, create an unfair pressure among children.
4.3.4 Special issues in the marketing of subscriptions and clubs
The general principles laid out above will also be applied when they concern the marketing of clubs and subscriptions to children. Problems related
to the use of enticements such as extra benefits and competitions also frequently arise with this type of marketing.
CO case 90-0918 Sparebanken Pluss
The case concerned an advertisement that invited children to become members of the savings bank's club and take part in a “real yo-yo competition” that the club was arranging.
Membership, which cost NOK 30.00, was not linked to the opening of an account at the
bank.
14
The CO believed that the services that were being offered through membership would influence consumers to make use of the bank’s other services, for example opening an account. Because the advertisement was directed at children, the measure was considered to
be in conflict with the MCA s. 1, paragraph 1. The marketing measure was also considered
to be in conflict with s. 4.
CO case 95-2189 Mr. Music
The case concerned the marketing of membership in the music club Mr. Music.
The marketing material was designed either as an insert in the comics Donald Duck and
Mikke Mus or was sent directly to children.
In the insert in the comics, children were enticed with a scratch card where they were invited to “scratch and win” and where the “prize” was a Mr. Music CD or cassette of 14 original hits. However, it did not clearly emerge from the insert that it was membership in Mr.
Music that the offer was actually about.
In the material that was addressed directly, the impression was given that the child was one
of the chosen few lucky enough to get the chance to “win” a “free CD and mini radio” from
Mr. Music by opening the “prize ticket” on the reply coupon and sending it back quickly.
No information was given that children under 18 years of age could not become members
of Mr. Music unless a person over 18 signed the reply coupon.
Marketing material that in such an overtly direct way is directed at children either as an insert in comics that children traditionally read or is personally addressed to children, and that
at the same time invites children to enter into a purchase agreement without informing them
that minors must get the signature of a person over 18 years of age to be able to enter into
an obligation through membership was regarded by the CO as unfair and in conflict with
the MCA, s. 1, paragraph 1.
The marketing material was also considered to be in conflict with ss. 2, 3 and 4 of the Marketing Control Act because there was insufficient address information, misleading use of
the expressions “NOK 0.00” and “free”, misleading/insufficiently guiding use of comparative prices and the statement “value”, as well as the use of additional/quick reply premiums.
4.4
AN ADVERTISEMENT’S CONTENTS AND THE USE OF EFFECTS
4.4.1 Product presentation ss. 2 and 3, cf. s. 1
When sections 2 or 3 of the MCA are breached (see point 3.1), then the general clause in s. 1, paragraph 1 will also be regarded as breached.
It also emerges from the ICC’s Code of Advertising Practice11 that special
care should be taken to ensure that advertisements do not mislead children
and young people as to the true size, value, nature, durability and performance of the advertised product. In this connection, reference is made to
point 3.3 above on the ICC’s Code of Advertising Practice as an element in
the interpretation of the MCA, s. 1.
Market Council case 11/79 Consumer Ombudsman vs. Fra meg til deg kort
A/S
Misleading
design,
insufficient
labelling
11
The case concerned a gift pack of Holly Hobbie writing paper. The pack contained 12
illustrated and 12 blank sheets of writing paper plus 12 envelopes. The packaging was 2/3
filled with a loose bottom, so that the product itself only took up 1/3 of the pack. The
packaging featured illustrations that in the CO’s view meant that the product had a special
appeal to children.
The CO asserted that a misleading packaging design was covered by MCA, s. 2, paragraphs
1 and 2, cf. s. 19, paragraph 2, in so far as it was likely to influence demand through its de-
Article 14 point 1b, sub-point i.
15
sign or size or other reasons. Packaging that is too big leads the consumer to draw incorrect
conclusions about the contents and creates exaggerated expectations in this respect. The CO
stressed that strict requirements must be placed specifically on the relationship between the
size of the packaging and its contents when it cannot be ruled out that the product will have
a special appeal to children.
The Market Council agreed with the essentials of what the CO pointed out and that marketing Holly Hobbie writing paper in packaging where the internal volume was partly filled up
with a false bottom was in conflict with the MCA, s. 2. The importer was given a precisely
indicated deadline to terminate the use of the offending packaging. The decision was unanimous.
CO case 93-0773 Brio Scanditoy A/S
The case concerned the marketing of model cars. When it was constructed and completed,
the model car did not look the same as the pictures on the outside of the box, and the size of
the box produced expectations of something different from the finished result. The contents
of the box could not be examined in the shop, as the box was sealed in plastic film.
It was stated on the box that the car had to be painted to resemble the depicted car. The information was given in English and in very small print. In a similar way, the size of the car
was given as 12.85 cm.
The CO decided that the purchasing group was primarily children, who do not have an adequate command of English. In the CO’s assessment, the information mentioned on the box
was presented much too poorly in comparison to the effect that the picture on the box and
the size of the box had on the purchaser. Following an overall evaluation, the CO decided
that the information on the packaging was misleading and in conflict with the MCA, ss. 2
and 3.
CO case 97-0319 The Topps Company Ltd (Candy Star)
The case concerned the “Baby Wild Animals” bag of candies. Each bag contained an animal that children could collect. The bag featured an invitation to children to collect all 24
wild animals in the series. The packaging was designed in such a way that it was not possible to see which animal each individual pack contained before purchasing it. That resulted
in children having to buy many more bags than was actually necessary to obtain a complete
collection of animals.
The CO found that the marketing measure was addressed to children in a direct way because it appealed to children’s interest in collecting. It was further believed that the design
of the packaging created an unfair purchasing pressure on children in conflict with the
MCA, s. 1, paragraph 1.
There was a warning in English on the bag that the contents were not suitable for children
under 5 years old. The CO pointed out that health warnings are to be given in Norwegian,
cf. MCA ss. 1 and 3.
The CO also addressed the relationship to the provision governing premiums, with the collectable animals appearing to be an extra service gained by the purchase of the bag of candies. The CO did not proceed pursuant to MCA, s. 4, as the service was offered as a package.
Lack of
documentation
16
CO case 95-0855 Midelfart & CO A/S
The case concerned the commercial for Clearasil Facial Tonic, which contained claims
about “Clearasil Facial Tonic every day. You can do something about acne before it does
something with you. You just have to make the first move” and “Clearasil Facial Tonic
penetrates pores,
cleans down deep and kills up to 65% of bacteria before you get acne.”
In accordance with the practice of the Market Council and the CO, special requirements
have to be placed on clarity and documentation for claims that are put forward when the
marketing is directed at vulnerable groups such as children and young people.
After an overall assessment of this commercial and one that was broadcast later with the
same meaning, the CO found that it was not made sufficiently clear, with the product presented as a “miracle means” for preventing problems with acne, what help Clearasil would
actually provide.
The claims in the films were not sufficiently substantiated and the broadcast was further regarded as misleading and in conflict with the MCA, s. 2 and, irrespective of that, in conflict
with s. 1.
Nutrition/food
CO case 88-2367 A/S Dumex
The case concerned the advertising of a food supplement as a suitable product for children
who do not like fish. The advertisement showed a picture of a girl with a plate with cooked
fish, vegetables and potatoes in front of her. She is picking at her food with a fork and
clearly has no desire to eat. The advertiser felt that the advertisement illustrated a topical
situation and that many parents experienced exactly the same.
Even if the advertisement did show a side of reality, the CO felt that it was in conflict with
the Marketing Control Act.
Care must be shown when advertisers use children in advertising or the advertising is directed at children. This type of advertisement that is read by both children and parents
would, in the CO’s view, build up the conception that children do not like fish, which contains important nutrients. The advertisement further gave the impression that children cannot get these necessary nutrients from other food and that this food supplement was a good
alternative.
The CO stated that care should generally be shown when marketing pills as an alternative
to a properly balanced meal. It is especially undesirable for children to be encouraged to replace meals with pills, something which may have an adverse effect on attitudes and habits
later in life.
An advertisement that contributes to children being drawn away from good eating habits by
building up a negative attitude to an important food must, in the CO’s assessment, be regarded as an unfair marketing measure and in conflict with the MCA, s. 1.
4.4.2 Marketing of dangerous products. Incitements to criminal offences, dangerous behaviour, breaches of safety standards
In advertisements addressed to children and young people, strict requirements are placed on the marketing of dangerous products or the representation of dangerous situations. If products that are unsuitable or dangerous
for children are marketed to children and young people, then that marketing
of the product may be considered to be unfair and in conflict with good
marketing practice.
An incitement to break the law, take part in dangerous behaviour and breach
normal safety standards will be in conflict with the MCA, s. 1.
This standpoint is also reflected in the ICC’s Code of Advertising Practice12,
cf. point 3.3 above.
Market Council case no. 13.93 Consumer Ombudsman vs. Nodest A/S
The case concerned the question of whether Nodest AS should be prohibited from screening a television commercial for Butinox paint before 9 p.m.
The CO felt that the commercial was in conflict with the MCA, s. 1. The commercial
showed a little lad entering a garage where tools and paints are stored. The lad goes up to a
shelf where there are several open cans of Butinox paint. He stirs some of the cans a little,
looks more closely at the colours and talks about the different colours and what he associates with them. Finally, he chooses a can of yellow paint and begins to paint the car that is
standing in the garage. The film concludes with an adult voice saying: “Butinox has so
many of the joys of colour that it must be kept out of the reach of children. To be certain
that children cannot get to it, make sure you store the paint behind lock and key.”
The Market Council found that the use of the child in the film was in conflict with the applicable broadcasting regulations, s. 6, paragraph 4, and that for this reason the film was also unfair in relation to the MCA, s. 1. Pursuant to s. 6, paragraph 4, children under 14 can
only take part in commercials if they are a natural part of the environment portrayed or are
necessary for demonstrating the use of the product or service. By presenting a situation that
showed a lack of respect for the safety regulations that apply to these types of products, the
12
Article 14, point 2.
17
commercial, the Market Council further decided, contained a breach of the standards of
care set out in the MCA, s. 1, paragraph 1 in isolation. A prohibition against screening the
commercial on television before 9 p.m. was laid down.
CO case 88-1163 Isberg’s Personbil A.S
The case concerned an advertisement for a Volvo with a catalytic converter. In the advertisement, two small children were pictured standing behind a car near to the exhaust pipe.
The text read: “Air is for everyone.” The advertisement gave the impression that the catalytic converter made the car so environmentally friendly that even small children could
breathe in the exhaust gases without harm.
The CO had no objections that the advertisement focused on the advantages a catalytic converter can provide in terms of less pollution. However, there was a necessity to avoid the
impression that the catalytic converter solved all the problems related to car exhausts.
How effectively a catalytic converter works depends to a large degree on both the age of
the car and how careful the owner is about using the correct fuel.
The depiction of the children sitting right up close to the exhaust pipe raised questions in
the light of the MCA, s. 1. In the CO’s assessment, the depiction involved a breach of the
safety rules that children are generally brought up to follow when it comes to not breathing
in exhaust gases or standing behind a car out of the driver’s sight. In the CO’s view, further
use of the advertisement should be stopped. In future marketing, other means of expression
should be found to underline the advantages of catalytic converters.
CO case 90-0002 Isodan Norge AS
The case concerned the marketing of insulating materials that were claimed to be especially
resistant to damp, mould, rot, bacteria and pests. A naked baby was pictured on a pile of
this material. The text under the picture read: “Even the sensitive skin of a child can tolerate
Isodan fibre.”
Even if the product did not contain any substances that were considered to be hazardous, in
the CO’s assessment that in no way justified the picture’s message that the product was so
safe that a child could “bathe” naked in it without the child experiencing any skin reaction
or being harmed in any other way.
As no materials were available to substantiate the message that the picture gave, giving
consumers the impression that a product which contains substances that are resistant to bacteria, rot and pests is so safe that a baby can come into contact with it without observing
any safety regulations was regarded as unfair and in conflict with the MCA, s. 1.
CO case 94-0938 Rieber & Sønn A/S
The case concerned the commercial for Toro waffle batter. The commercial showed two
children and two adults in a boat. None of them are wearing a life jacket. On board is a box
of spliced cables. The cable is plugged in to a socket on a wharf and the boat is driven out
until the cable is taut. The end of the cable is plugged into a waffle iron and the children
start cooking waffles on board the boat.
The CO believed that the situation depicted was a very dangerous one. The use of cables
and an electrical appliance so close to water is a breach of normal electrical safety standards. The fact that it was children who played the main role in the commercial was also
viewed as an aggravating circumstance. It was therefore decided that the commercial was in
conflict with the MCA, s. 1, cf. the broadcasting regulations valid at the time, s. 6 (paragraph 1 of s. 3-6 in today's regulations).
CO case 96-0025 Eilag A/S – Elfag
The case concerned a commercial for the use of certified electricians. The commercial
showed an elderly married couple lying in bed and reading. The wife turns out the light and
says “goodnight” several times to her husband without getting a reply. She then takes out a
pair of scissors and cuts the cord to the husband’s reading lamp. The light sparks out as she
cuts the cord, and she then lies down again.
The CO pointed out that cutting a power cord with a pair of scissors is a breach of general
electrical safety standards, and that the situation that was presented was dangerous. It was
asserted that children had tried to do the same thing. The CO found that the film was in
conflict with the MCA, s. 1, cf. the broadcasting regulations valid at the time, s. 6 (paragraph 1 of s. 3-6 in today's regulations).
18
CO case 97-2142 Ideal Wasa AS
The case concerned a commercial for Wasa crispbread. The commercial showed a family
on a camping trip. In pouring rain, the husband tries to get the grill to light using matches.
It doesn’t work. In pure desperation, several litres of lighter fuel are emptied onto the grill,
then a large tanker is directed to the site. There is clearly nothing that will help, as in the
next moment we see the man trying to grill the meat using the heat from a flaming torch.
To the great consternation of all present, including two children, the torch suddenly flares
up violently. That doesn’t seem to be a particularly successful way of grilling either, for in
the next picture we see the mother sitting outside in the rain, drenched through and trying to
grill/dry a sausage with a hairdryer.
The CO regarded the screening of this commercial at a time when a great many children are
watching television to be in conflict with the MCA, s. 1, paragraph 1. The company was
therefore asked to show the commercial in future at a later time in the evening, i.e. after 9
p.m.
The company did not agree with the Consumer Ombudsman’s assessment and requested
that the case be submitted to the Market Council. The Market Council was set to hear the
case in March 1999.
CO case 97-2141 Stabburet A/S
The case concerned a commercial for liver paté. The commercial showed, among other
things, a little boy licking up liver paté direct from the tin. Complainants felt that this was
an action that was dangerous for children.
The commercial focused to a small degree on the action complained about. The situation
presented in the commercial could not, in the CO’s assessment, be said to highlight or promote a dangerous action in such a way that it was likely to be perceived as an encouragement to do the same thing.
It was therefore decided that the commercial was not in conflict with MCA, s. 1.
4.4.3 The use of effects that are likely to create an unreasonable pressure to buy
The use of various types of effects that are likely to create an unreasonable
pressure to buy, including the use of enticements and the playing upon various types of feelings, can be considered to be in conflict with the MCA, s. 1.
Market Council case 1/79 Consumer Ombudsman vs. A/S Hjemmet
The case concerned whether a series to be collected in several consecutive issues of the
comic Donald Duck & Co. could be considered to exert too strong a pressure on children to
buy, which is in conflict with MCA, s. 1.
Enclosed with the comic was a 16-page collection book for cars that were stapled to the
middle pages of the comic. On the cover was the announcement “Wonderful new car series
begins”. The first three pictures in the car series were enclosed in the same issue. The rest
were enclosed in the next four issues, which therefore had to be bought for a complete version of the car series to be collected.
The CO felt that this exerted too strong a buying pressure on children and asked that the
marketing be changed.
A/S Hjemmet disagreed, and the case was submitted to the Market Council. Among other
things, the Council stated: “The marketing is here directed primarily at children; there is
no disagreement that special care must then be shown and that the relationship to the unfairness criterion of the law must be evaluated on the basis of especially strict requirements.”
A minority on the Council agreed with the CO. However, the majority decided that the
marketing went no further than what was acceptable within the bounds of the influence motivating the purchase which it is regarded as permissible to subject children to, and stated
among other things:
“Even when the case involves children, a certain general condemnation of the action must
be required in order for the overall assessment to consider that action unreasonable as defined by the law. The boundaries can here not be so restrictive that the pressure that might
be present to purchase a collectable series is such that the presentation of the one in this
19
comic can be characterised as unreasonable and thus in conflict with s. 1 of the Marketing
Control Act.
Emphasis was also placed on the fact that the collectable series could not be said to be particularly different from the other continuing series in the comic which probably to an equally high degree contribute to its popularity and to the pressure to buy the comic which a
great many children subject their parents to.
- The use of enticements
The CO has dealt with a number of cases pursuant to the MCA, s. 1 concerning the use of effects that are likely to exert an unreasonable pressure on
children to buy. The use of enticements such as premiums (MCA, s. 4) and
competitions (MCA, s. 5) in marketing can easily be considered likely to
exert this type of unreasonable purchasing pressure in conflict with the
MCA, s. 1, paragraph 1. For a more detailed description, see point 3.1.
CO case 96-0823 Sørlands Chips
The case concerned the marketing of Sørlands Chips “Pirat Gull” potato chips, in which a
popular “children’s character” Captain Sabeltann and his coin collection were used to catch
the eye. The marketing also invited children to collect Captain Sabeltann’s coins. The marketing material included statements such as: “Do you want to help the two poor pirate
brothers find some of the coins? Pick through your bag carefully as there you will find a
coin. There are 12 different coins to be discovered.”
The CO found that, by offering the temptation that there were coins that could be obtained
by purchasing “Pirat Gull”, the advertisement exerted an unreasonable purchasing pressure
on children, and considered the marketing measure to be in conflict with the MCA, s. 1.
The CO also addressed the relationship to the MCA, s. 4 and found that no natural connection existed between the purchase of potato chips as the main performance and the act of
obtaining a collectable coin.
Sørlands Chips’ marketing, cf. above, also contained the following: “Draw an angry Captain Sabeltann and send your drawing to Sørlands Chips. You could win a free night’s stay
for the whole family at the exciting Kristiansand Zoo. Captain Sabeltann will pick out 10
winners himself!” Despite the fact that the selection of the winners was to be conducted by
Terje Formoe, alias Captain Sabeltann, the CO maintained the position that chance was a
wholly or partially determining factor in who was to win the drawing competition and that
the measure therefore had to be considered to be in conflict with the MCA, s. 5.
CO case 97-1421 Egmont Serieforlaget AS
The case concerned the marketing of the comic Donald Duck & Co. Packed very visibly on
the front of the comic were small ice figures. Among other things on the cover page of the
comic was written “EXTRA” above a drawing of pieces of ice with Donald characters and
“Make Donald characters!”
The CO took up the case with reference to the MCA, s. 4 and pointed out that there was no
natural connection in terms of purchase or use between buying the comic as the main performance and receiving ice figures as an additional performance. The fact that marketing
was directed at children was given additional weight as an aggravating circumstance in the
assessment of whether the MCA, s. 4 should be regarded as breached, cf. Market Council
case 1/79.
- Invitations to purchase
The examples below show that advertising directed at children that contain
an invitation to buy, such as “come and buy”, “next time you buy”, “get it at
your local toyshop” and similar, or an invitation to persuade parents or others to buy, can be considered to be in conflict with MCA, s. 1. In cases that
concern printed advertisements, an emphasis has been placed on whether
other effects are used that reinforce the invitation to purchase, for example
the use of enticements or playing upon different kinds of feelings, cf. below.
As far as television advertising is concerned, the CO works on the basis that
there is somewhat more scope for an advertisement that contains an invita20
tion to buy or to persuade parents or others to buy to be considered in conflict with s. 1 if the advertisement is otherwise likely to attract a child’s attention. Reference is further made to Section 3.3 as an introduction to
statements in the preliminary work to amendments to the Marketing Control
Act, s. 1, and the use of, among other things, the EU’s television directive as
arguments in the interpretation of the provision.
CO case no. 92-0654 Coca Cola Norge A/S
The case concerned a commercial, “Coca Cola invites you to the greatest prize bonanza ever”, that was broadcast on TV Norge. Following an overall evaluation in which weight was
placed on the product, the presentation using Disney characters and the focus on children’s
experiences at EuroDisney, as well as the time of broadcast, the film was considered to be
specifically directed at children and thus in conflict with the Broadcasting Act, s. 3-1, paragraph 2. In addition, the use of competitions in the marketing was regarded as an effect
likely to attract children’s attention in conflict with the MCA, s. 1. The statement in the
film “The adventure starts next time you buy a Coca-Cola” was regarded as an invitation to
buy with a strong purchasing pressure. Against this background the commercial was also
considered to be in conflict with the MCA, s. 1.
CO case 97-2115/2381 Nikko Norge AS
The case concerned two television commercials for Nikko remote-controlled cars. The CO
considered that the product and the design of the commercials had an attraction for both
children and adults. The commercials were broadcast at a time when it had to be expected
that a lot of children were watching television. The commercials illustrated the use of a
racetrack, and towards the end the voiceover said: “Nikko – number one in remote-controlled cars – get them at your local toyshop.” The CO stated that in the assessment of television commercials pursuant to the MCA, s. 1, weight must be attached to the fact that television is an especially obtrusive medium that has a strong power of influence. A special degree of care must therefore be shown in television commercials where children are also presumed to be part of the target group. This type of statement and similar statements in television commercials can easily be perceived by children as invitations to purchase or as an encouragement to persuade parents to purchase, and thus come under the scope of the provision.
Encouragement
to put pressure
on parents
CO case 97-1691 Hydro Texaco AS
The case concerned the marketing of a “Free holiday book to all children” at Hydro
Texaco’s petrol stations.
The front page of the book featured the words: “With Pelle Pinnsvin”, and inside the book
under the section “stamp card” was the statement: “Welcome! When you are out driving,
you may have to fill up with petrol or do a bit of shopping. When you stop at a Hydro Texaco station, take this stamp card into the station. Each time you get a stamp, you’ll get a
poster of Pelle Pinnsvin. There are 4 different designs.” The CO found the measure to be in
conflict with the MCA, s. 1, as it had to be seen as an encouragement to put pressure on
parents.
- Playing on a bad conscience, social insecurity, etc.
Playing on feelings such as a bad conscience, social pressures, insecurity
and so on can easily create an unreasonable pressure to buy and thus be considered to be in conflict with the MCA, s. 1.
Bad
conscience
Feelings
between
children
CO case 87-2743 Brio Scanditoy A/S
The case concerned an advertisement for the soft toys “Sad Sam” and “Honey” in the comic
Donald Duck & Co. Among other things, the advertisement said: “Take me home. So cute,
but so sad at the same time! Think about Sad Sam and Honey having to sleep outside
tonight!”
The CO considered that the advertisement played on a child’s conscience in such a way that
it placed an unreasonable purchasing pressure on the child.
CO case 92-0875 SIO Data
The case concerned the marketing of computer equipment directed at parents featuring,
among other things, the following statement: “Give your children a head start” and “Do you
21
and parents
Social
insecurity/
social values
want your children to be better at school?” The CO felt that the marketing played heavily
on the parents’ conscience towards their children and that for this reason the advertisement
could be considered in conflict with the MCA, s. 1.
CO case 92-2073 Viking Fottøy AS
The case concerned an advertisement in the magazine Foreldre og Barn [Parents and
Children] for Cherrox, a favourite brand of boots in Norway. The advertisement showed a
picture of three smiling, playing children, while a fourth looks on from a window. The
advertisement featured the following text: “Everyone got to play except for Anne-Li –
Because she was only wearing Cherrox copies”, which played on a common children’s
joke in Norway that contrasts “everyone” with the child named in the joke to his or her
detriment. The CO stated that care must be shown when playing on social insecurity and
feelings between parents and children in marketing, and against this background the
advertisement was considered to be in conflict with MCA, s. 1.
CO case no 97-2016/2024 Euro Sko AL
The case concerned Euro Sko’s marketing materials inserted in the comic Donald Duck &
Co. In a brochure for “Roots boots & shoes”, children of 8 – 10 years of age were pictured
wearing different types of boots. Connected to the pictures were, among others, the following statements: “A tough face… check out what he’s wearing on his feet!”, “Toughest on
the feet this autumn with Roots Boots!"” Emphasis was laid on the fact that the brochure
was enclosed with the comic Donald Duck, and even though the comic is also bought to a
large extent by adults, the design must itself be considered to have a special appeal to
young people of the same age as or somewhat younger than the children pictured in the advertisement. The CO stated that the advertisement played on social insecurity/acceptance
by giving the impression that the shoe brand can be a decisive factor in whether a child is
seen as “tough”, “in” and so on, as it described characteristics that are regarded as important for young people’s acceptance by their peers. Against this background the brochure
was considered to be in conflict with the MCA, s. 1.
CO case 96-0573 Natur-Import AS
The case concerned advertising for Silicol Skin in the comic Donald Duck & Co. The advertisement was designed as a photo montage with the following headline: “Silicol Skin –
Will Anne get rid of her pimples in time?” The CO received several reactions where the
complainants felt that the advertisement gave the impression that young people with acne
should stay at home when there’s a party.
The CO laid weight on the fact that the advertisement was typically addressed to teenagers,
and that the design itself was likely to appeal to young people both of the same age as and
younger than the children pictured. The CO declared: “The advertisement plays on social
insecurity among young people and uses what is a problem for many young people, problem skin and acne, as a way to attract attention. The Consumer Ombudsman agrees with
the complaints that the advertisement gives signals to young people that can easily be interpreted to mean that it is necessary to appear “perfect” to be able to hold one’s own in social
situations. “The problem” is provided with a facile solution, and the impression that this is
the reality is reinforced by the use of a photo montage.”
Against this background, the advertisement was considered to be in conflict with the MCA,
s. 1.
4.4.4 Advertisements that create terror, fear or anxiety
Marketing that unnecessarily creates terror, fear or anxiety or in any other
way makes use of concepts that can have a frightening effect are in conflict
with the MCA, s. 1, paragraph 1. Both the advertisement’s message and the
effects that are used are relevant elements in its assessment. Also of importance here is the medium that is used.
CO case 88-1602 Gjensidige Forsikring A/S
The case concerned advertising for Gjensidige’s offer of life insurance which used a large
picture of a boy of about 7 to 10 years old. The following statement was ascribed to the boy
22
as the advertisement’s headline: “My daddy can never die, because we’ve got life insurance.” The CO received several reactions that clearly showed that the advertisement stirred
strong feelings in both adults and children. Many were concerned with the idea that children experience anxiety at the thought of the loss of one or both of their parents and that the
advertising gave a false impression that life insurance can eliminate the risk of such a loss.
The CO considers it in conflict with the MCA, s. 1 to exploit parents’ sense of responsibility towards their children in such a way that a pressure of conscience is placed upon the
parents with the result that they take up the advertised offer. The CO laid weight on the fact
that the advertisement could undoubtedly substantiate a child’s natural fear of losing one or
both parents. Considering that life insurance will hardly affect the probability that a child
will lose its parents or be spared such a fate, the CO regarded Gjensidige’s marketing
measure as unreasonable and in conflict with the MCA,
s. 1.
CO case 95-0934 Ringnes A/S
The case concerned Ringnes’ television commercial for the soft drink Mozell, which
showed a man shooting with a bow and arrow at an apple on the head of a woman.
The CO decided that the commercial could have a strong and frightening effect on children
and that broadcasting it before 9 p.m. was in conflict with the MCA, s. 1, paragraph 1.
CO case 95-1374/1419/1472 Freia A/S
The case concerned the commercial for Freia’s M chocolate. The commercial showed a
Dracula figure and his “helper” getting out of their coffins in a churchyard. Nerve-tingling
music accompanies the whole commercial. In the CO’s opinion, the commercial evoked a
sinister atmosphere that could both frighten children and make them anxious. The commercial was shown around 7 p.m. The CO decided there would be no need for a further assessment if the commercial were broadcast after 8 p.m.
CO case 97-2227/2237 Sætre AS
The case concerned a commercial for Kim’s potato chips. The commercial showed an elderly woman who lets a man look after her little dog while she goes into a shop to do some
shopping. A Rottweiler is tied up outside the shop. While the man is busy eating his potato
chips, it looks as if the little dog is eaten by the Rottweiler. As the woman comes out of the
shop and discovers that her dog has gone, a picture is shown of a contented Rottweiler with
a dog collar in its mouth.
Against the background of the complaints that the CO received, it was felt that it was primarily children who would experience the commercial as brutal. Adults would relatively
quickly realise that the Rottweiler was fighting with a toy dog. But children could easily be
frightened by the commercial. In particular, children who had been exposed to this type of
attack could subsequently experience both physical and psychological problems. Against
this background, the CO decided that the commercial could be considered in conflict with s.
1 if it was screened before 9 p.m.
4.4.5 The use of aggressive effects such as violence, sex, intoxicants
Advertisements that play on violence, sex or intoxicants can easily be considered to be in conflict with the MCA, s. 1. This is especially true in relation
to children and young people. The type of medium and, if televised, the
broadcasting time will have a particular importance in the assessment of
whether a marketing measure that plays on this type of effect is at odds with
the law.
The CO has dealt with a number of cases that concerned passages of violence in cinema and television commercials. The problem is especially topical here because of the character of the media and where the use of strong
measures reinforces the effect. The CO has adopted the standpoint that
commercials that play on violence, sex or the use of intoxicants should not
be shown in association with children’s presentations at the cinema, nor on
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television at a time when it must be expected that children make up a significant part of the audience. The CO has therefore addressed itself in several
such cases to the actual cinema and television company as a jointly liable
contributor.
Violence
CO case 97-0840 Modern Basic Norge A/S
The case concerned Diesel’s spring and summer catalogue 1997 with the title “Fight me”
and the subhead “Diplomacy is a kick in the face”. The catalogue, which was distributed to
customers in shops that sold Diesel clothes, contained a number of pictures portraying gross
scenes of violence. The CO found the use of these effects extreme and offensive and that
the catalogue represented a glorification of violence and behaviour that was not acceptable
or otherwise desirable in society. The CO admitted that the catalogue might possibly be
playing on young people’s sense of irony. However, in the CO’s perception, there was no
basis for thinking that a possibly ironic angle neutralised the aggression and the strong effects in the catalogue. Weight was also put on the fact that Diesel had an image as a trendsetter and intermediary of the standards and values that young people pick up, and that it
would be unreasonable to use pictures to focus on rough and brutal violence in connection
with the marketing of clothes. The combined use of the effects in the catalogue was considered so gross that the catalogue had to be regarded in its entirety as unreasonable and therefore in conflict with the MCA, s.1. The catalogue was withdrawn from the market.
CO case 97-2423 Egmont Film AS
The case concerned an advertisement for Sony Playstation which used a picture of a bloody
Santa Claus lying in the snow with some dolls in front of him. In the background stood two
girls with bats. Under the picture of Santa Claus were the words: “General Warning: Do not
underestimate a Christmas without Playstation.”
The CO found that the advertisement contained an incitement to violence. This kind of legitimisation of violence in the marketing of a product that has a special attraction for children
and young people was considered to be both offensive and a violation of human dignity.
The advertisement was considered to be in conflict with the MCA, s. 1.
CO case 98-2018 Microtonica A/S
The case concerned an advertisement for the multimedia game “Shadow Warrior”. The advertisement showed a picture of the game with the following headline: “Destroy more – exterminate more – massacre the most –Monster 3 DII Now more than three times as fast”.
The CO stated: “The use of the picture seen in connection with the message that the advertisement gives must in our opinion clearly be considered to be in conflict with good marketing practice. The fact that this is a “fantasy game” cannot offset the legitimisation of violence that the advertisement gives an impression of.” Against this background the advertisement was found to be in conflict with the MCA, s. 1.
CO case 96-1642/1820 Voice of Europe
The case concerned Voice of Europe’s commercial for Henry Choice trousers screened in
cinemas. The commercial was shot in black-and-white and showed a gang in a murky back
alley. Two people running away from the gang are hemmed into a corner where they are attacked with knives, clubs and similar weapons. The violence in the film is intended to underline how desirable the trousers are.
The CO felt that the film played on violence and contained scenes that could have a frightening effect on children. The CO pointed out that television and cinema advertising is different from advertising in other media as it enables several effects to be used. This type of advertisement will therefore stand out as particularly strong and obtrusive, and there is more
scope for this kind of “realistic” advertising to be considered in conflict with the MCA, s. 1
than is the case for printed advertisements. The case was also taken up directly with the
cinemas in question, and the screening of the commercial in association with a children’s
presentation in the cinema was considered to be in conflict with the MCA, s. 1.
The commercial was also screened on TV2 early in the afternoon. Broadcasting the commercial at a time when it had to be expected that a lot of children were watching television
was also considered to be in conflict with the MCA, s. 1.
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CO case 97-1758 Levi Strauss Norway AS
The case concerned a commercial for Levi jeans screened in cinemas and on television. The
commercial contained a number of scenes with raw and brutal violence taken form Kung
Fu films from the 1970s.
The CO stated that there is no basis for thinking that a humorous, clichéd angle totally neutralises the aggression and the brutal depictions of violence in the commercial, and that the
commercial would be considered to be in conflict with the MCA, s. 1 if it was screened in
association with children’s presentations at the cinema, on television before 8.30 p.m., or in
association with a family programme even later in the evening.
Sex
Intoxicants
CO case 98-0475 Diesel Norge AS
The case concerned a cinema commercial which presented the story of a man who ran a
bookshop as a cover for making porno films. The film starts with the lead role instructing
the actors and actresses during the shooting of a porno film to come up with the right noises. But he cannot find the right sound effects until, that is, he is sitting in the car and hears
the children bickering and moaning in the back seat. The camera then zooms in on a sticker
on the back of the car that reads: “Family, love, morality made America free.” The CO noted that the commercial was screened in association with the film about the Spice Girls,
among others, and therefore raised questions about it pursuant to the MCA, s. 1.
The CO pointed out that children do not have the same possibilities as adults of distinguishing between fantasy and reality, nor would they so easily be able to perceive any irony
in the commercial. The result of the commercial’s focus on sex, in the CO’s assessment,
was that it had to be regarded as offensive to screen it in association with films where children make up a significant part of the audience. The fact that the commercial was screened
at the cinema, a medium with a stronger effect and a more obtrusive form than other media,
was regarded as an aggravating element. The case was concluded with a ban on the commercial being screened in association with films categorised for an age limit lower than 15.
CO case 97-1249 Bernhard Sports
The case concerned a catalogue for skateboard equipment marketed by the company
Bernhard Sports. The CO received a complaint from a mother on behalf of her 13-year-old
son. The son reacted to an advertisement for boxer shorts that, in his opinion, presented the
skateboarding community as an environment where drink and drugs were frequently used.
The advertisement depicted a girl and a boy, presumably around 13 to 14 years old, halflying on a sofa. The boy was clad only in boxer shorts, while the girl was dressed in a bra,
mini skirt and shoes. The expressions on their faces gave the impression that they had been
using intoxicants. On the table in front of them lay an empty bottle of beer, a bottle of spirits and a magazine with a woman posing naked in it.
The CO stated that special care should be shown in the choice of effects in marketing directed at young people. The use of intoxicants and the relationship to the body and sexuality
can be a problem for many young people.
The catalogue also featured a discussion about San Francisco that the CO considered to be a
reference to and legitimisation of the use of a narcotic. The CO found both this discussion
and the advertisement for boxer shorts to be in conflict with the MCA, s. 1, paragraph 1.
All further distribution of the catalogue was stopped.
CO case 97-0378 Oslo Kinoreklame
The case concerned a commercial for what are known as alcoholic sodas screened in association with a children’s presentation at the cinema. The Norwegian Directorate for the
Prevention of Alcohol and Drug Problems (Rusmiddeldirektoratet), which administers the
prohibition on advertising alcohol as outlined in the Act on the Sale of Alcoholic Beverages, declared that the insert was not in conflict with the prohibition as the prohibition applied to alcoholic drinks with an alcoholic content of more than 2.4 per cent. The drink in
the advertisement contained 2.0 per cent alcohol.
The CO assessed the advertisement pursuant to the MCA, s. 1 and found that marketing alcoholic drinks in association with children’s presentations at the cinema was in conflict
with this provision. Special emphasis was placed on the fact that the product was a drink
that would appeal to the age group in question.
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4.5 ADVERTISEMENTS ON VIDEO CASSETTES
In advertising on video cassettes, consideration must be given to the recommendations on the age group the film is intended for.
CO case 96-0138 Buena Vista Home Entertainment
The case concerned a commercial on Disney video cassettes for children.
The CO pointed out that commercials should be adapted to the age group the main film is
intended for and should not therefore contain trailers for films with a higher age category
than the feature film or commercials that in any way may have a frightening effect on children. The CO also evaluated the amount of advertising seen in relation to the feature film,
and decided that if the commercials and trailers make up more than 20 percent (1/5) of the
length of the feature film, the cassette should be labelled to inform the consumer of this.
4.6 ADVERTISEMENTS ON THE INTERNET
The Internet’s international character has made complicated questions of legal venues and jurisdiction a highly topical issue. The CO works on the assumption that the Marketing Control Act applies to all marketing directed at
Norwegian consumers, even when that marketing takes place on the Internet.
The Internet as an advertising arena and sales channel represents a challenge
for the consumer authorities. Marketing via the Internet is combined with
entertainment and the collection of personal data more often than in other
media. The distinction between marketing and other material is not sufficiently clear.
Marketing in the form of interactive advertising is a particular problem in
relation to children and young people, as this type of advertising mixes information, entertainment, market analysis and advertisements in a way that
can be difficult to see through.13
The Nordic consumer ombudsmen drew up a “Common position on trade
and marketing on the Internet and similar communication systems” in December 1998.
Section 10 covers “Marketing directed at children and young persons” and
reads:
The recommendations expressed in sections 1 to 9 of this common position apply to marketing directed at children and young persons subject to the more rigorous rules contained
in this section. Moreover, specific provisions of the country in question applies.
The marketing should be elaborated in such a way that it is obvious to that age group which is the target group - that it is a question of marketing.
The businessman should take into account the development stage of the target group and
therefore should not take advantage of children's and young persons' credulity and lack of
experience. If entertainment features form part of the marketing - in the form of, e.g., play,
cf. Working report no. 2/98 of SIFO (The National Institute for Consumer Research), “Advertising on the Internet directed at children”.
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games and the like - this entertainment should not be combined with or interrupted by advertising features.
Children and young persons should not be encouraged to give information about themselves, the household or about any other persons. Giving information may not be made a
condition of gaining access to contents.
Children/young persons should not be offered rewards (money, gifts or anything else of a
monetary value) for staying on or participating in activities on the Internet. This rule does
not prevent the holding of prize competitions that neither directly nor indirectly have the effect that the child/young person stays longer on the businessman's homepage.
Businessmen should use the techniques available at any time for allowing parents to limit
the material to which their children have access via the Internet.
Children and young persons should not be encouraged to buy goods or conclude contracts
via the Internet, and appropriate precautions should be taken to ensure that children and
young persons do not make purchases or conclude contracts via the Internet.
Businessmen, whose marketing is directed at children and young persons should not use
hyperlinks to places containing material that is not suited for children and young persons,
or which do not comply with existing legislation.
Interactive marketing on the Internet is especially problematic in relation to children and
young persons. Interactive advertising is more than just product presentation and product
orientation. It is sophisticated forms of advertising such as games, play instruments and
competitions where animal figures, dolls and other images and trade marks affiliated with
the products typically form part of the marketing. This marketing method has a tendency to
be hidden to the child, and trade marks etc are thus played into the child's subconsciousness. Businessmen should not use techniques fit for affecting children's and young persons'
subconsciousness.
Businessmen should bear in mind that marketing targeted to adults may also be of the interest to children. Furthermore, contracts entered by minors are prima facie not valid.
Kontor og Datateknisk Landsforening (KDL, Norway’s largest IT organisation) took the initiative to appoint a committee to draw up a proposal for
ethical rules for people displaying pages on the Internet. The proposal was
sent out for assessment in August 1998. In the CO’s assessment, these kinds
of ethical regulations and self-regulatory codes will be a useful supplement
to the legislation.
The International Chamber of Commerce has drawn up its own guidelines
for marketing on the Internet, cf. ICC Revised Guidelines on Advertising
and Marketing on the Internet. Article 6 of these guidelines contains special
rules for advertising directed at children. These cover: the consideration
given to their lack of experience, credulity and loyalty; protection against
harmful contents; the identification of material intended only for adults; the
encouragement of parents/guardians to participate in/supervise their children’s online activities; the encouragement of young children on the one
hand to obtain their parents’ permission before providing information online
and of advertisers on the other hand to make reasonable efforts to ensure
that parental consent is given; the provision of information to parents/guardians about ways to protect their children’s privacy online.
CO case 98-1653 Egmont Serieforlaget
The case concerned the ordering of a subscription to Donald Duck & Co. via the Internet.
By placing a cross to show whether the customer wanted a usual subscription or a gift sub-
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scription, he was asked to give, in addition to his name and address, his e-mail address and
date of birth – day month year. If the advertiser used this type of personal information to
send personally addressed advertising to minors, this would, in the CO’s opinion, raise
questions pursuant to the MCA, s. 1, paragraph 1. Because the Guardianship Act sets limits
on a minor’s legal capacity to act, it must be clearly visible in the marketing material that it
is an adult who must undertake the liability to pay for a possible subscription order.
If the advertiser should wish on a later occasion to collect personal data in a register, the
Consumer Ombudsman has required that the customer is made aware of this and is told at
the same time about what the information will be used for.
In particular when financial transactions via the Internet are concerned, where there is a risk
that the customer’s electronic trace may be registered and used, it can be of great importance for the consumers that they receive clarification of how and in what way the registered information will be used. With regard to clarity in a contractual relationship, the CO has
decided that this type of condition should be a fixed part of the contract, cf. the MCA, s. 9a.
The possible registration of this information will require clarification under the terms of the
Act relating to Personal Data Filing Systems.
CO case 98-1632 Nettavisen
The case concerned the mixing of editorial material and advertisements. The online newspaper Nettavisen published an editorial article on the working report of the National Institute for Consumer Research (SIFO) no. 2/98 “Advertising on the Internet directed at children”. The newspaper concluded the article by displaying links to the commercial homepages of Litago and Donald Duck, which were the object of some criticism in the report.
As a supplement to their Code of Ethics, the Norwegian Press Association (Norsk Presseforbund - NP) adopted rules in June 1998 on text advertising and sponsors. These rules contain, among other things, a prohibition on setting up links from editorial material on web
sites to advertising and public relations material. The CO sought a statement from the NP
on whether the association saw the use of the links in Nettavisen’s article as a breach of the
regulations.
Against the background of the information that was provided, the CO found no reason to
pursue this case either in relation to the Marketing Control Act or in relation to the Norwegian Press Council (Pressens Faglige Utvalg).
Service
providers
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In 1997, the CO also raised the question of the joint liability of a service
provider who had placed a link to Walt Disney’s homepages on his special
children’s pages. The CO found some things on Disney’s homepages that
were in conflict with the law. These have gradually been removed and there
were no pages that were directed specifically at Norway. Following an
overall assessment, the CO decided that it was not practical to take the case
further even though the marketing on Walt Disney’s homepages could be
problematic in relation to the MCA, s. 1.
In addition to these guidelines on advertising practice in «Marketing in relation to Children and Young People», the Consumer Ombudsman has drawn up special information/guidelines in several other areas.
The following guidelines are available in English:
Price Information and the Marketing Control Act (revised March 1999)
Sexual discrimination in advertising (revised March 1994)
The Use of Environmental Argumentation in Marketing (March 1994)
Guidelines for the following areas are only available in Norwegian:
Car insurance (August 1989)
Electricity (March 1999)
Financial insurance (May 1993)
Funeral services (revised March 1992)
Fuel, price information (revised May 1994)
Houses (July 1994)
Lotteries and competitions in the Marketing Control Act, s. 5 (autumn 1982)
Mail order sales (revised June 1989)
Package tours (October 1997)
Pension insurance (revised December 1990)
Pools systems/lottery systems (revised July 1994)
Slimming and slimming aids (revised August 1986)
Stamps (revised June 1995)
Television advertising (revised May 1997)
Television sales (May 1994)
Unit trusts and bond funds (December 1990)
Additional copies of these and other guidelines can be obtained from
Forbrukerombudet
(The Consumer Ombudsman)
P.O. Box 4597 Nydalen, N-0404 Oslo, Norway
Tel. +47 23 400 600
Fax: +47 23 400 601
E-mail: fo@forbrukerombudet.no
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