A criminal case

Legislation criminalising advertisers that use ‘pester power’ to sell goods targeted at children has provoked a backlash among marketers, who claim that the existing system – a combination of self-regulation and common sense – makes the new rules unnecessary. By Mark Choueke

Any parent will no doubt cite Christmas as the time of year when their children are most likely to demand the latest toys and gadgets brought to their attention by an uncompromising blitz of advertising. From Teletubbies and Bratz to MP3 players and the PSP, brands bombard children in an attempt to win a share of their parents’ pockets.

Yet moves by the Government – urged on by the European Commission – to criminalise the use of “pester power” (MW last week), where advertisements encourage children to hassle adults to buy them products, are proving unpopular among advertisers and consumer groups alike.

There is no easy answer to the question of where to draw the line. For this reason, common sense twinned with robust regulation has long been the adopted solution. After all, any ad for toys or food products aimed at children has to appeal to the target audience enough for them to want to ask their parents if they can have it.

Nevertheless, the Department of Trade and Industry has launched a consultation on the EU’s Directive on Unfair Commercial Practices, aimed at combating misleading and aggressive practices. The recommendation states that advertisers directly encouraging children to persuade their parents or other adults to buy advertised products for them should be subject to criminal penalties.

The move has unnerved many in the industry, and for a variety of reasons. If pester power was criminalised, the laws would supersede the self-regulatory process currently overseen by the Advertising Standards Authority (ASA), which most industry insiders believe works well enough to continue unchanged.

The punishment doesn’t fit the crime

Ian Twinn, director of public affairs at advertiser trade body the Incorporated Society of British Advertisers, says/ “We are in strong agreement that parents need to be supported on the issue of pester power, but object to criminalisation rather than the existing prohibition.

“Bodies such as the ASA already have the power to act, whereas the threat of criminalisation has made creatives very nervous. Charges leading to prison or fines could end executives’ careers.”

Another source agrees: “There is an awful lot a stock industry response, marketers aren’t stupid – they know brand trust is vital for success, and is built through honest messages and quality monitoring. It isn’t sensible to alienate or exert pressure on parents.”

Meanwhile, consumer organisation Which? has renewed its call for an end to aggressive marketing and a ban on television ads for foods high in salt, sugar and fat at times when children are watching. But its report recognises the progress that has been made in this area; for instance, many fast-food companies are now offering healthier alternatives and more nutritional information.

One might expect consumer groups to be vociferous in their support for moves towards tighter regulation and criminal penalisation for offenders. In truth, watchdogs fear a judge’s narrow interpretation of the laws might allow swathes of bad practice to continue, with advertisers protected by well-hidden legal loopholes.

If it isn’t broken…

Which? campaigns lawyer Ingrid Gubbay says: “The terms will invite litigation about what is and isn’t aggressive. On the pester clause, we wouldn’t go so far as criminalisation. For the moment the regulator does quite a good job.

“The current system is simple and quick, and it’s fairly clear where the limits are. Criminalisation might open up another can of worms.”

Indeed, there are three different versions of the code of practice on pester power that the ASA adheres to: separate ones for radio, TV and print and poster ads (see box). Although the wording of each differs slightly, the messages all effectively say the same thing. There is no single, clear definition that enables the ASA to make “sensible decisions” according to a spokesman. He argues self-regulation is working, pointing out the rarity of pester-power complaints that are investigated and upheld – the last was in 1996.

Many ASA adjudications against the industry involve direct marketing. One, in 1993, concerned an Encom Cable TV and Telecommunications leaflet distributed at an event at a children’s theme park that read: “See Ratkan II every day on The Children’s Channel. If you can’t get The Children’s Channel on your TV – complain! Tell your parents to get in touch with your local cable operator or satellite retailer to find out more.”

Another direct mailing was posted and personally addressed to a four-year-old boy. The sender, Kids Kingdom in Cornwall, wrote: “Hi Michael, we know that you are thinking about Christmas right now but don’t forget it’s your birthday on 9 January 1996 and we want to wish you a very happy birthday. Are you going to have a party? If you are how about coming to Kids Kingdom. You’ll have lots of fun as you can see from the enclosed leaflet.” The authority told the advertiser to avoid targeting young children in this way.

Dave Lawrence, planning director of Logistix, a promotional marketing agency that specialises in marketing to families, says pester power is a measure of failure in the creative process. He claims that when clients want to include a form of pester power in an ad, Logistix staff are trained to advise against it.

Lawrence is also keen to outline the dangers of criminalising pester power, including too narrowly defining where childhood ends and at what age youngsters are “old enough to cope with being bombarded by messages they are maybe not ready for”. He adds: “The happy, active engagement children have with brands through promotional activity could disappear – things like toys in cereal boxes, which parents can relate to, and which add value to the purchase.”

Lawrence also believes a move to impose criminal penalties on those that exploit pester power could undermine the way families engage with advertising. He says: “Many families work more democratically than we give them credit for, with children a massive influence on family life; that is driven by parents, not children.”

From the mouths of babes

He says studies show parents want their children to be a part of everyday decision-making, for instance, choosing holiday destinations based on their children’s wishes, even though holiday companies don’t promote directly to children.

“As long as the issue is treated responsibly through self-regulation, consumers want their children to voice their opinions on what products and services their family employs,” adds Lawrence.

The UK has a comparatively liberal view of advertising among European member states, especially when judged against countries such as Sweden, which enforces a complete ban on advertising to children.

Self-regulation is seen as an effective attempt by bosses to engage honestly with parents, driven by a fear of damaging relationships with consumers. The Government’s intentions may be well founded, but it risks being accused of meddling in affairs where change is unnecessary.

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