Stephens Lawyers & Consultants
All marketing and advertising must comply with The Australian Consumer Law, which prohibits content which is misleading or deceptive or likely to mislead or deceive or contains false representations in respect of the products or services being advertised[i]. In addition, there are industry, product or audience specific laws, codes and standards which apply.
Changes in community standards along with the need to protect children and other groups which are vulnerable to exploitative marketing campaigns has resulted in the introduction of a number of codes and standards. The Australian Association of National Advertisers (AANA) has announced that it will be introducing a new Children’s Advertising Code with strong new rules for advertising to children – with one of the major changes being the ban on the use of ‘kidfluencers’ in advertising directed to children, including on social media.
This update provides an overview of the new AANA Children’s Advertising Code, as well as the AANA Code of Ethics for marketing and advertising and the Broadcasting Services (Australian Content and Children’s Television) Standards 2020 which regulates advertising content directed to children.
AANA Children’s Advertising Code – 1 December 2023
The Australian Association of National Advertisers’ (AANA) new Children’s Advertising Code with new, stronger rules for advertising to children will come into effect on 1 December, 2023. A Practice Note accompanies the new Code to provide guidance as to interpretation of the new Code and to assist advertisers, their agencies and the community.
The object of the AANA Children’s Advertising Code is “to ensure that advertisers and marketers develop and maintain a high sense of social responsibility in advertising and marketing to children in Australia”[ii]. The new Code, accompanied by its Practice Note, complements the AANA’s Food & Beverage Advertising Code which already bans advertising of occasional food and beverages to children.
Recognising the distinct vulnerability of children and addressing concerns from the community, government and industry, the protections extended under the new Children’s Advertising Code will no longer be limited to advertising for children’s products but will now extend safeguards to all advertising:-
- directed at children – defined as ‘persons 14 years old or younger and Child means a person 14 years old or younger”[iii];
- across all media channels – defined as “including without limitation cinema, internet, outdoor media, print, radio, television, telecommunications, or other direct-to-consumer media including new and emerging technologies.” [iv];
- at all times of the day.
Bans and Prohibitions
The new AANA Children’s Advertising Code (New Code) expressly bans direct advertising of hazardous products to children such as vapes, kava or highly caffeinated drinks[v]. It also prohibits the encouragement of unsafe practices, including bullying[vi] or promoting unhealthy body image, and the use of sexual appeal or imagery[vii] when communicating to children.
In particular, the New Code pays special attention to the rise of ‘kidfluencers’ and influencer advertising directed at children. Going beyond the Australian Consumer Law, the new Code bans the use of “popular personalities or celebrities (live or animated) to endorse, recommend, promote or advertise or market Products[viii] or Premiums[ix] in a manner that obscures the distinction between commercial promotions and program or editorial content”[x]
Complaints about advertising under the AANA Children’s Advertising Code will be handled by Ad Standards and determined by an independent Ad Standards Community Panel, taking into account Prevailing Community Standards. The Prevailing Community Standards will be determined by the Community Panel as those prevailing at the relevant time in relation to advertising or marketing communication to children and will have regard to Practice Notes published by the AANA and any research conducted by the Ad Standards.[xi]
AANA Code of Ethics – 1 February 2021
The Australian Association of National Advertisers’ (AANA) new advertising and marketing Code of Ethics came into effect as of 1 February 2021, as a part of the self-regulatory system (AANA Ethics Code).
The object of the AANA Ethics Code is to ensure that all forms of advertisements and marketing communications irrespective of the media or new technology used are “legal, honest, truthful and have been prepared with respect of human dignity, an obligation to avoid harm to the consumer and society and a sense of fairness and responsibility to competitors”[xii]. The Practice Note accompanying the AANA Ethics Code provides guidance to advertisers and complainants in respect of the application of the AANA Ethics Code and must be applied in the determination of a complaint by the Ad Standards Community Panel (Panel)[xiii].
The complaint resolution process under the AANA Ethics Code is managed by Ad Standard. Ad Standards publishes statistics about advertisement complaints and determination of complaints. In 2022, over 2,600 complaints were lodged with Ad Standards raising concerns about advertisements, with the most complained about product category being food and beverages (16.8% of complaints) followed by gambling (8.54% of complaints) and political/social messages (7.73% of complaints).[xiv] Of these, 39 cases were administratively resolved, before being considered by the Panel[xv] (eg. with the advertisement being either voluntarily withdrawn or modified to remove the content the subject of the complaints). The Panel considered 249 cases finding 61 of the advertisements to be in breach of 1 or more of the advertising codes and finding the remaining 188 advertisements considered not in breach of the advertising codes .[xvi].
The top 3 issues of concern in 2022 were sex, sexuality and nudity (29.85% of complaints) followed by violence (17.16% of complaints) and discrimination or vilification ((14.08% of complaints)[xvii].
The AANA Ethics Code prohibits:
- the discrimination or vilification of any individual or group on the basis of defined attributes – race, ethnicity, nationality, gender, age, sexual orientation, religion, disability, mental illness or political belief in advertising[xviii].
- the use of sexual appeal in advertising where images of minors or people who appear to be minors are used; or where the focus on body parts has no direct relevance to the goods or services being promoted[xix].
- the harmful use of sex, sexuality or nudity in advertising, and requires such content to be appropriate having regard to the audience[xx].
The Practice Note provides guidance to advertisers as to the type of sexual images that would not be appropriate in advertising[xxi].
Broadcasting Services (Australian Content and Children’s Television) Standards 2020
The Broadcasting Services (Australian Content and Children’s Television) Standards 2020 (Standards) which were made by the Australian Communications and Media Authority (ACMA) under section 122(1) of the Broadcasting Services Act 1992 (Cth), came into effect on 1 January 2021. The Standards require a minimum amounts of first release Australian programs from genres specified in Schedule 1, to be broadcast by commercial television broadcasting licensees and require licensees to comply with certain protections of children viewers in respect of advertising content [xxii]. The Standards prohibit licensees from broadcasting advertisements:
- that mislead or deceive children;[xxiii]
- that are designed to put undue pressure on children to ask their parents or another person to purchase the advertised product or service;[xxiv]
- that state or imply that a product or service makes children who own or enjoy it more superior to their peers or a person who buys a product as being more generous than one who does not;[xxv]
- that inaccurately represents the advertised product or services or includes claims that are ambiguous;[xxvi]
- in which children are depicted using products (including toys and games) unless those depictions fairly represent the performance which a child, of the age depicted can obtain from those products;[xxvii]
- that mention prices unless the prices are mentioned in a way which can easily be understood by children and meet the other requirements specified;[xxviii]
- for a food product that contains any misleading or incorrect information about the nutritional value of that product;[xxix]
- that includes a disclaimer unless the disclaimer is presented conspicuously;[xxx]
- or a program that refers to competitions for children unless there is a summary of the rules and any statement of the chance of winning is clear, fair and accurate[xxxi].
The Broadcasting Services (Australian content and Children’s Television) Standards 2020, also includes prohibitions on the broadcast of unsuitable material immediately before, during or after a program which is classified for children viewing including material which:
- demeans any person or group on the basis of ethnicity, nationality, race, gender, sexual orientation, religion, mental or physical disability;
- presents images which are unduly frightening or unduly distressing to children;
- presents images or events which depict unsafe use of products or unsafe situation which may encourage children to engage in activities dangerous to them;
- advertises products or services which have been declared unsafe by the relevant regulator[xxxii].
The Standards also includes other restrictions on advertising designed to protect children viewers. The ACMA is responsible for ensuring compliance with the Standard and investigating complaints.
© Stephens Lawyers & Consultants. 16 February, 2021; Updated 11 October, 2023
Authored by Katarina Klaric, Principal, Stephens Lawyers & Consultants; the contribution of Rochina Iannella, Lawyer, in updating the 2021 article and in researching and authoring the segment on the new AANA Children’s Advertising Code, is acknowledged.
This update is not intended to be a substitute for obtaining legal advice.
For further information contact:
Katarina Klaric
Principal
Stephens Lawyers & Consultants
Melbourne Head Office
Suite 205, 546 Collins Street, Melbourne VIC 3000
Phone: (03) 8636 9100 ; Fax: (03) 8636 9199
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[i] Competition and Consumer Act 2010. Schedule 2- The Australian Consumer Law, section 18 and section 29.
[ii] AANA Children’s Advertising Code and accompanying Practice Note – Accessed 3 October 2023 https://aana.com.au/self-regulation/codes-guidelines/aana-code-for-advertising-marketing-communications-to-children/
[iii] The AANA Children’s Advertising Code, Sec 1. Definition of ‘Children’” (see Endnote ii for the LINK)
[iv] The AANA Children’s Advertising Code, Sec. 1 (Definition of ‘Medium’) – (see Endnote ii for the LINK)
[v] AANA Media Release, “AANA Strengthens Children’s Advertising Code”, 17 August, 2023 per AANA CEO Josh Faulks; The AANA Children’s Advertising Code, Sec. 2.5 (Safety) – (see Endnote ii for the LINK)
[vi] Ibid; The AANA Children’s Advertising Code, Sec. 2.6 (Social Values) – (see Endnote ii for the LINK)
[vii] Ibid,; The AANA Children’s Advertising Code, Sec. 2.4 (Sexualisation) – (see Endnote ii for the LINK)
[viii] The AANA Children’s Advertising Code, Sec 1. “Product” is defined as “goods, services and/or facilities which are targeted toward and have principal appeal to children”
[ix] The AANA Children’s Advertising Code, Sec 1. “Premium” is defined as “anything offered either free, at a reduced price, or with an additional cost and which is conditional upon the purchase of an advertised product”, (see Endnote ii for the LINK)
[x] AANA Children’s Advertising Code, Sec 2.10 (see Endnote ii for the LINK)
[xi] AANA Children’s Advertising Code, Sec. 1 (Definition of ‘Prevailing Community Standards’) and Sec 2.1 (see Endnote ii for the LINK)
[xii]AANA Code of Ethics, February 2021, https://f.hubspotusercontent00.net/hubfs/5093205/AANA_Code_of_Ethics_Effective_February_2021.pdf?utm_campaign=Self-Reg-Codes&utm_source=AANA&utm_medium=web&utm_term=self-reg&utm_content=code-of-ethics
[xiii] AANA Code of Ethics and accompanying Practice Note, Valid as 1 February 2021, https://aana.com.au/self-regulation/codes-guidelines/code-of-ethics/.
[xiv] Ad Standards Media Release, “Ad Standards 2022 Review of Operations”, 25 May, 2023, https://adstandards.com.au/media-releases/ad-standards-2022-review-operations/; Ad Standards ‘Review of Operations 2022 – The Changing Face of Community Standards’ – https://adstandards.com.au/sites/default/files/adstds_review-of-operations_final_web_version.pdf
[xv] Ibid.
[xvi] Ibid.
[xvii] Ibid.
[xviii] Section 2.1 AANA Code of Ethics. See endnote xii for the link to the AANA Code of Ethics.
[xix] Section 2.2 AANA Code of Ethics. See endnote xii for the link to the AANA Code of Ethics. See also ANNA Code of Ethics Practice Note, February 2021, page 7, https://f.hubspotusercontent00.net/hubfs/5093205/AANA_Code_of_Ethics_PracticeNote_Effective_February_2021.pdf?utm_campaign=Self-Reg-Codes&utm_source=AANA&utm_medium=web&utm_term=self-reg&utm_content=ethics-notes.
[xx] Section 2.4 AANA Code of Ethics. See endnote xii for the link to the AANA Code of Ethics.
[xxi] ANNA Code of Ethics Practice Note, February 2021. See endnote xix for the link.
[xxii] Broadcasting Services (Australian Content and Children’s Television) Standards 2020, section 7(1).
[xxiii] Broadcasting Services (Australian content and Children’s Television) Standards 2020, section 19.
[xxiv] Broadcasting Services (Australian content and Children’s Television) Standards 2020, section 20(1).
[xxv] Broadcasting Services (Australian content and Children’s Television) Standards 2020, section 20(2).
[xxvi] Broadcasting Services (Australian content and Children’s Television) Standards 2020, sections 21(1) and 21(2).
[xxvii] Broadcasting Services (Australian content and Children’s Television) Standards 2020, section 21(3).
[xxviii] Broadcasting Services (Australian content and Children’s Television) Standards 2020, section 21(6).
[xxix] Broadcasting Services (Australian content and Children’s Television) Standards 2020, section 21(7).
[xxx] Broadcasting Services (Australian content and Children’s Television) Standards 2020, section 22(1).
[xxxi] Broadcasting Services (Australian content and Children’s Television) Standards 2020, section 23.
[xxxii] Broadcasting Services (Australian content and Children’s Television) Standards 2020, section 31.