Guidance on the Code for marketing of food and drink aimed at children

1.   Introduction

Under current Norwegian legislation, children are widely protected from marketing activities. Examples of legislation are the Marketing Act, Chapter 4, on special protection of children, the Broadcasting Act and its regulations on advertising to children and young people, the Education Act and the Private Schools Act.

This Code supersedes the Code of 2007, as updated in June 2009, and is intended as a supplement to the applicable law. The Code covers current regulation of marketing to children, but is also intended to give children extended protection, and thus goes further than current legislation.

2.   Marketing concept

The concept of marketing is a wide one and encompasses all types of initiatives for promoting sales. However, three limitations are noted in Section 2 under the definition of marketing.

Code Section 2a

Section 2 a exempts from the definition of marketing ''the actual product including packaging". This means that product design, packaging, wrappers, etc., will not in themselves be regarded as marketing. The Code is thus not intended to prevent the development of new products, including products with an appeal for children. However, the extent to which the product appeals to children will have a significance on how the product can be marketed. See more about this in Section 3.

Even though the packaging is exempted from the definition of marketing, it is important to clarify that the intentions of the Code also apply to the packaging. The packaging or a free gift may not, for example, have such a character that the product is almost secondary. Attaching a children's film to a pack of chocolates would thus be an infringement of the intention behind the Code, and an impermissible way of avoiding it. This is because the free gift of the children's film will have such an appeal for children, that the product, the chocolate, becomes a secondary consideration.

It must also be noted that the Marketing Act sets limits on how the packaging may be designed.

Code Section 2b

Section2 b exempts ordinary product display at the point of sale from the definition of "marketing", which will thus not be affected by the Code. Ordinary display includes shelf placement and rental of floor space for display of goods.

The question of what is permitted "ordinary display" must be subject to a concrete assessment, in which, beyond the actual display, any use of figures, posters, images etc., must be considered. The total impression of the display will decide whether the display is to be regarded as ordinary or not.

Example 1:

Rental of floorspace in a shop.

If floorspace is rented for accommodating packs of a product which can be regarded as particularly appealing to children, this will not be covered by the Code. However, if various advertising elements with a particular appeal for children are linked to the display, for example, by having a figure which can be regarded as having a particular appeal for children standing next to the packs, this will not be an ordinary display, and will be a marketing activity covered by the Code.

Code Section 2c

Section 2 c exempts from the definition of "marketing" sponsorships which only involve the use of the sponsor's name, the sponsor's trademark or a product trademark. A trademark is a special symbol for a company's goods and/or services. A trademark may consist of any kind of sign, but must be capable of graphical representation. For example, a trademark may consist of words and word combinations (e.g. a slogan), names and logos.

Remuneration for the sponsored company displaying the sponsor's name and/or trademark may be pure cash contributions, exclusive sales agreements, free products or free services. Free products could be, for instance, food or drink sold at events. With regard to samples which it is intended to distribute to children, the provision states that this must not be without the prior consent of parents or other responsible persons. Other responsible persons could be a parents' committee, a sports board or a class parents' representative.

It should be clarified that schools must not be an advertising arena. Bodies which market food and drink must back up the authorities' efforts to keep schools advertisement-free. Activities must be in accordance with the Education Act and the Private Schools Act. Any initiatives aimed at schools must be devised in consultation with the school.

3.   Assessment of when marketing is specially aimed at children

Section 2 of the Code states that marketing of products listed in the Guidance must not be specially aimed at children under 13 years. The question is then, when should marketing be considered as being specially aimed at children under 13 years? Section 4 of the Code states that an overall assessment must be made, in which three factors in particular must be considered. Account must be taken of:

a) the extent to which the medium used has particular appeal for children

b) the extent to which the advertising elements used have particular appeal for children 

c) the extent to which the marketed products have particular appeal for children

It should be emphasized that a product with a particular appeal for children will never in itself be regarded as marketing. This is clearly stated in the definition of marketing, and is also clarified in the Code's Section 4.

Code Section 4a

According to Code Section 4 a, in assessing whether a specific instance of marketing is specially aimed at children, it will be important to see the extent to which the media used are of particular appeal to children. In this assessment, it will be particularly significant if children are the express target group for the medium used.

Example 2:

Children's comics.

This medium is so strongly aimed at children that any marketing of products covered by the Code will be regarded as marketing specially aimed at children. Marketing of potato crisps in a children's comic will thus contravene the Code, even though the product of potato crisps appeals to all age groups.

Examples of media which will normally be regarded as having particular appeal for children are:

- Social media such as chat services, logging tools and internet communities which are specially aimed at children

- Games, play sites and entertainment sites specially aimed at children

- Internet sites which market products specially aimed at children

- Children's programmes on TV and radio

- Email, testing services or other mobile phone marketing specially aimed at children

- Printed media, e.g. magazines, serial publications etc., which are specially aimed at children.

If a company on its website uses advertising elements, games, competitions, etc. with a particular appeal for children, the website will be regarded as a medium with a particular appeal for children. This is unlike a company which uses its website to address an adult public or other business partners. The content of the company's website will therefore decide whether the website is to be regarded as a medium with particular appeal for children. The same is true for the website of a product. 

When purchasing advertising in digital and social media in which it is possible to actively dissociate the target group of children under 13 years, the advertiser undertakes to comply with this.

A programme which is regarded as a children's programme under the broadcasting regulations will be regarded as a programme with particular appeal for children under the Code. According to the Norwegian Broadcasting Regulations, § 3-6, sentence 5, a programme will be regarded as a children's programme when children are regarded as its primary target group. When assessing whether a programme is to be regarded as a children's programme, according to the regulations weight must be given to the following factors:

- the contents and form of the programme

- whether children under 13 years take part in it

- the time at which the programme is broadcast

- who the potential viewers are in relation to the transmission time

- the actual viewers

- the use of language in the programme

TV programmes transmitted before 21:00 hours will normally be seen by children, and under the Code no advertising with particular appeal for children for products covered by the regulations may be broadcast before 21:00 hours. Marketing broadcast after 21:00 hours will not be regarded as marketing specially aimed at children. This is also clarified in the Code and is in line with current practice.

Code Section 4b

According to Code Section 4 b, in assessing whether a specific instance of marketing is specially aimed at children, it will be important to look at the extent to which the elements used are of particular appeal to children. If the elements used have a particular appeal for children, this alone will be enough to confirm that the marketing is specially aimed at children, and that it thus falls within the prohibition in Code Section 2. This will be the case, even if the product in itself is not specially aimed at children, and the medium used is neutral in respect of age groups. Methods with a particular appeal for children may for example be marketing of free gifts with a particular appeal for children.

Example 3:

"Buy three soft drinks and get a free children's cartoon".

Marketing of this nature would infringe the Code, as the free gift, the children's cartoon, has a particular appeal for children. Another advertising element with particular appeal for children is competitions in which the prize has a particular appeal for children. A marketing campaign which includes a chance to win tickets to Legoland, for example, would normally infringe the Code, unless the time and place etc. of the marketing, make it clear that the competition is not aimed at children. However, a prize consisting of a gift card to the XXL sports chain would not infringe the Code, as a gift card to XXL does not have a particular appeal to children.

All competitions linked to products covered by the Code must have an age limit of at least 13 years.

In assessing whether elements have been used which are of particular appeal to children, the following factors may be significant:

- Whether a childish language is used.

- Whether cartoon characters and/or animation with a particular appeal for children has been used.

- Whether children appear in the marketing

- Whether the marketing uses persons who have a particular appeal for children, e.g. young actors, pop stars, superheroes or well-known children's TV presenters.

- Whether the marketing uses play, games, competitions, etc. with a particular appeal for children

Example 4:

The marketing of biscuits using billboards of Shrek[1] on the bus.

This would infringe the Code, even though bus posters are not a medium specially aimed at children and biscuits are a product which appeals to all age groups. The use of Shrek has such particular appeal for children that this in itself means that the marketing must contravene the prohibition. It should be pointed out that the Shrek character has such a particular appeal for children, partly because Shrek is part of an extensive industry and that a whole universe has been built up round the character. Films, books, games and celebrities etc. are linked to the character. Shrek has thus a particularly strong appeal for children through a multiplicity of channels.

Figures which appeal to children but have only been developed in connection with a particular product will normally not have as much appeal to children as Shrek in the above example.

Code Section 4c

According to Code Section 4 c, in assessing whether a specific instance of marketing is specially aimed at children, it will also be important to see the extent to which the marketed products are of particular appeal to children. Even though a very child-oriented product will in itself be permitted, opportunities for marketing it will be limited – and any marketing must be clearly marked as aimed at adults. The more childish a product is, the stricter will be the requirements as to the elements which may be used in marketing. The product being marketed and its design and packaging will thus be relevant to the overall assessment which needs to be made.

The following criteria are examples of what would be relevant when assessing whether a product is to be regarded as having a particular appeal for children.

- Whether any additional performances are used, such as gifts, etc., which have a particular appeal for children.

- If the product has a shape, packaging, wrapper etc., which has a particular appeal for children.

- Whether the product is primarily consumed by children

 

[1] Shrek is an American animated film from 2001 which became extremely popular and features a large green ogre called Shrek.