EN Official Journal of the European Union C 351/6

Opinion of the European Economic and Social Committee on ‘A framework for advertising aimed at young people and children’ (own-initiative opinion)

2012/C 351/02

Rapporteur: Mr PEGADO LIZ

On 14 July 2011 the European Economic and Social Committee, acting under Rule 29(2) of its Rules of Procedure, decided to draw up an own-initiative opinion on

A framework for advertising aimed at young people and children.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 30 August 2012.

At its 483rd plenary session, held on 18 and 19 September 2012 (meeting of 18 September), the European Economic and Social Committee adopted the following opinion by 130 votes to none, with 3 abstentions.

1. Conclusions and recommendations

1.1 The aim of this opinion is to contribute to the information and discussions on and potential development, at Community level, of legislative or other measures to protect children and young people from certain types of advertising that use children improperly or target them in a harmful way, or expose them by any means to messages that could harm their sound physical, mental or moral development.

1.2 At stake here is the protection of the basic rights of children in the EU, as set out in the United Nations Convention, in Article 24 of the European Charter of Fundamental Rights, and in Article 3(3) of the TEU. These rights have been well interpreted in the Commission's Communication Towards an EU strategy on the rights of the child (COM(2006) 367 final), in the Multiannual Community programme on protecting children using the internet and other communication technologies (COM(2008) 106 final) (1), and in the EU Agenda for the Rights of the Child (COM(2011) 60 final).

1.3 Advertising which wrongfully uses children for purposes unrelated to matters which directly concern them is an affront to human dignity and to their physical and mental integrity and should be banned.

1.4 Advertising aimed at children involves additional risks depending on the age-group involved, with harmful consequences for their physical, mental or moral health. Particularly damaging are incitements to over-consumption, leading to debt and the consumption of food or other products which are harmful or dangerous to their physical and mental health.

1.5 In more general terms, the particularly violent, racist, xenophobic, erotic or pornographic content of some advertising can have irreversible effects on children's physical, mental, moral and civic development, triggering outbursts of violence or sexual precociousness.

1.6 The EESC considers that these issues need to be analysed very thoroughly and placed within an EU framework, in keeping with the principles of subsidiarity and proportionality. This is not just a matter of safeguarding fundamental rights: it is also necessary because differing national regulations jeopardise the smooth operation of the internal market. The EESC therefore recommends that a universal minimum age for advertising specifically aimed at children be set at the European level.

1.7 The EESC considers that special emphasis must be placed on empowering, informing and educating children, from a very young age, about the proper use of information technologies and about how to interpret advertising messages. These subjects should be included in school curricula at all levels. Parents should also be equipped to help their children to interpret advertising messages.

1.8 The EESC believes that the public in general and, more particularly, families and teachers, should also receive information and training to help them protect children more effectively.

1.9 The EESC calls on advertisers and sponsors, using both self-regulation and co-regulation initiatives (not only those already adopted but also ones to be promoted) to adopt and apply the highest levels of protection of children's rights and to see that they are enforced.

1.10 The EESC considers that the Community legal framework does not meet current needs for protecting children's rights with regard to advertising messages, and specifically those conveyed by audiovisual media, on the internet and via social networks. It urges the Commission to give urgent thought to the need to adopt more restrictive, cross-cutting measures to effectively guarantee these rights.

1.11 The EESC calls on the European Parliament and national parliaments to resolutely continue their tradition of upholding the rights of children in this special field.

2. Impact of advertising on children

2.1 The EESC advocates a social market economy which is properly regulated so as to promote healthy and fair competition and a high level of consumer protection, with a view to completing an internal market as a means of improving Europeans' living and working conditions, while showing due regard for the values of human dignity, freedom, democracy, equality, the rule of law and respect for human rights.

2.2 In this context, the EESC acknowledges that advertising, in all its forms, plays a major role, which has been well summarised by the International Advertising Association (IAA), whose viewpoint highlights in particular its role in disseminating innovation, encouraging creativity and entertainment, providing incentives for competition, and extending choice. The EESC also recognises that advertising acts as an important source of information and clarification to consumers, which is the justification and basis for its regulation at the Community level.

2.3 In an opinion of this nature and with this goal in mind, it would make sense to dedicate a section to the influence of the media in general, especially television, the internet and social networks, which have become the most important vehicles for advertising messages to children and young people as both users and mere passive viewers. It would also be useful to study the way in which children's behaviour in relation to social media varies according to their age and social background, including the well-known phenomenon of children choosing "idols" and "social behaviour patterns" or "lifestyles" as definers of personality, which are exploited by advertising methods (2). Nevertheless, due to space constraints, these will have to be taken as read, with all aspects of this issue being well-known and agreed on, specifically as regards the role that the media referred to above play in informing, training, educating and entertaining young people and the time young people spend on them. Some of these aspects have been or are currently being addressed in other EESC opinions (3).

3. Advertising that uses children as a vehicle for its commercial message in any form

3.1 With regard to advertising that uses children, it is worth highlighting the aspects of human dignity and the rights of the child, expressly enshrined in a number of international conventions and by the European Union, in particular in provisions of the Charter of Fundamental Rights (Articles 1 and 2c) and especially Articles 24 and 32.

3.2 The EESC considers that Community-level harmonisation is needed to ensure a universal ban on advertising that makes undue and improper use of images of children in areas not directly linked to them.

4. Advertising specifically aimed at children

4.1 Up to a certain age, children do not filter advertising, especially when the message is overblown and the same advert is repeated again and again. Children tend to accept all messages as truthful and can thus be persuaded to become compulsive consumers. This effect becomes stronger the more disadvantaged a child's socio-economic background. The messages and warnings contained in advertising are not understood by children and cannot be considered to play any preventive or dissuasive role.

4.2 What is more, the perception of advertising varies from one age-group to another. Up to the age of five, children are incapable of understanding the difference between scheduled programmes and advertising; even after that age, they still do not recognise advertising's persuasive role. This skill only develops around the age of eight and even then, not in all children. However, this still does not mean that they are able to recognise messages as one-sided, emphasising the positive aspects of the product in question and ignoring the more negative ones.

4.3 When older children view advertising as a piece of entertainment, its impact is greater, and their greater ability to process advertising messages does not necessarily render them immune to advertising and its intentions because other, more sophisticated and equally effective, persuasion techniques can be used to influence their behaviour.

4.4 Developing children's cognitive and interpretational skills by means of media education programmes enables them to interact more effectively with advertising. However, greater media literacy and better understanding of advertising on the part of both parents and children are not enough to counter the harmful effects of advertising aimed at children. It is essential to prepare children for their future role as consumers by focusing on media literacy and empowerment from the earliest age. This does not, however, solve the immediate problem of the overblown, repeated nature of advertisements, nor can it reach all children, especially those from more disadvantaged socio-economic backgrounds and those most affected by the harmful effects of advertising.

4.5 Studies show that the mediating role of the family is important in mitigating the effects of advertising. Nevertheless, children, including very young children, increasingly have access to a television and internet in their bedroom, making this a solitary and unsupervised activity. Another factor that increases children's exposure to advertisements and marketing techniques is the growing presence of the internet in the daily habits of even the youngest children. As is rightly pointed out in the draft EP report currently being drawn up, the internet is young people’s companion, often more than the family, school and friends. (4) Recent studies, such as Kids online, show that 38 % of children between the ages of 9 and 12 already have an online profile, and this figure rises to 78 % for 13-16 year olds. Many brands of toys and games have websites on which children can play and have fun online, but where they are also targeted by persuasion and brand loyalty strategies.

4.6 With regard in particular to incitement to excessive consumption leading to over-indebtedness, some marketing messages aimed at children can stimulate consumption habits marked by excess, creating artificial desires that do not match real needs and generating a false concept of "happiness". Statistics show that 54 % of adolescents feel pressurised to buy certain products purely because their friends have them; in other words, consumption ultimately becomes a factor for social inclusion.

4.7 There is a causal link between exposure to certain advertisements and pestering parents to buy things. Family conflict linked to exposure to advertising and demands to buy things occur in all families, but especially in those with the lowest socio-economic status, whose children spend most time in front of the television. Due to a lack of finances or a lesser ability to discuss matters, low-income families ultimately pay the highest price for advertising.

4.8 Consumerism stimulated by advertising also has the effect of drawing large numbers of children and young people to certain brands, which creates difficult situations for those who do not have access to the same products. One such situation is known as "brand bullying" in schools, which severely affects children who do not use certain brands; it can create behavioural problems or great personal unhappiness, sometimes driving them into situations of exclusion, violence and suffering that can in turn lead to crime in the form of petty theft or robbery.

4.9 As regards advertising that encourages the consumption of unhealthy food or other products that are harmful or dangerous to physical and mental health, we should emphasise the influence that children have on food-purchasing decisions, especially on the preference for ready-made dishes or fast food. The draw towards poor eating habits is a constant factor in advertising aimed at children. Obesity among children is already a huge problem. According to Consumers International, one in 10 children worldwide is overweight or obese; 22 million children below the age of five are now classified as overweight, and the main cause is the consumption of highly-processed products that are rich in sugars and fats.

4.10 The figures for the exposure of children to food-related advertising, especially in children's programmes, are high, and have been rising with children's growing use of television, the internet and social networks. Furthermore, the nature of adverts has changed, as they now contain more sophisticated product-marketing techniques which make them more persuasive (5).

4.11 Advertising can also have implications for eating disorders such as anorexia and bulimia. Children and adolescents are exposed to the body types and appearances of the young people featured in advertisements. The impact on young people, especially girls, of a slim body type promotes an ideal of beauty that encourages eating behaviour that can put lives at risk.

4.12 Indeed, the American Psychological Association considers that advertising aimed at children under the age of eight should be restricted (or banned altogether) given the inability of children of that age to process the persuasive intent of adverts. The aim of this ban would be to limit the damaging effects of advertising on the promotion of unhealthy eating habits, on conflict between parents and children over demands to buy products that are advertised, and on exposure to violence (6).

4.13 The Committee considers that these concerns, which are already covered by legislation in some Member States (7) and non-European countries, should be incorporated at EU level, setting a minimum age for advertising specifically aimed at children, as suggested in the report by the MEP Kyriacos Triantaphylides (8) and reaffirmed in the EP Resolution of 22 May 2012 (9).

5. Advertising that affects children

5.1 In terms of advertising that can seriously affect the mental and moral development of children, even when not specifically aimed at them, the most significant is advertising that encourages violence or certain types of violent behaviour, such as advertisements for toys or games that glorify violent behaviour.

5.2 Reliable studies show the damaging effects of exposure to violence in certain advertisements broadcast by audiovisual media, particularly when it promotes aggressive behaviour, greater receptiveness to violence and increased hostility. Mental health itself can be affected by this consumption of violent content, leading to anxiety, fear, sleep disturbance and hyperactivity.

5.3 Celebrities are increasingly used in advertisements for products that could damage health, such as alcohol or tobacco. Associating a lifestyle deemed to be attractive with such products stimulates the desire to use them and creates a positive perception of them.

5.4 Children's normal psychological and moral development is also affected by advertising containing erotic or pornographic content that encourages perverse, perverted or excessive sexual behaviour. A great deal of advertising is sexist and sexual in nature, and uses women as objects of desire, often in an inferior or subservient, not to say subjugated, position. Also, the excessive sexual charge or erotic, if not pornographic, content lead to the early sexualisation of children. Despite the fact that certain well-known brands have been forced to withdraw advertising that contributes to the hyper-sexualisation of children, and despite civil society's outrage at the abuse of images of minors' bodies in advertisements, there is no clear legal European-level definition of such situations.

5.5 Although this area is regulated in a number of Member States (albeit in highly different ways, which prevents the smooth operation of the internal market and cannot be justified by fundamental cultural reasons), the Committee considers that it is also worthy of consideration at Community level.

6. The Community legal framework and its obvious shortcomings

6.1 Given the current framework, it must be stated that national legal provisions and the procedures regarding children adopted by professionals in the field of advertising (meaning commercial communication in the broadest sense of the word) are anything but uniform in the different Member States.

6.2 For its part, the Community legal framework is unnecessarily complex and confusing, and in most cases is differently transposed and implemented in the Member States. The Commission itself recognises this in its Communication entitled A coherent framework for building trust in the Digital Single Market for e-commerce and online services (10), in its report on Protecting children in the digital world (11) and in the European Strategy for a Better Internet for Children (12). Most Member States have confined themselves to a minimalist transposition of the relevant Community directives, while others (13) apply stricter standards, which even ban advertising targeting minors (14).

6.3 Rightly, none of the provisions contained in Community legislation considers that in order to protect minors and human dignity, any "prior checks" should be carried out, in line with the fundamental principles of freedom of expression, as firmly established by the European Court of Human Rights with regard to the European Convention on the matter.

6.4 The fundamental error lies, however, in the Council Recommendation of 1998 on Achieving a comparable and effective level of protection of minors and human dignity, whose first stated concern is the competitiveness of the European audiovisual and information services industry. The recommendation treats action on audiovisual or "online" content that could be harmful to minors or human dignity as falling outside the legislative powers of the European Union (15) and ultimately views these aspects as a matter of "taste and decency" that does not fall within the scope of Community regulation (16).

6.5 In terms of what is universally mandatory, Member States are only required to ensure that television programmes (which should be understood to include commercial communications) do not include any programmes which might seriously impair the physical, mental or moral development of minors, in particular programmes that involve pornography or gratuitous violence, unless preceded by an "acoustic warning" or accompanied by a "visual symbol", except where it is ensured, by selecting the "time of the broadcast" or by "any technical measure", that "minors in the area of transmission will not normally hear or see such broadcasts".

6.6 Current legislation has abandoned the restrictions on inserting adverts, where this does not seriously impair the integrity of programmes, on the grounds that there are now "increased possibilities for viewers to avoid advertising". This legislation takes no account of the specific characteristics of the child, which it deems to be a passive viewer.

6.7 The only explicit Community-level prohibitions in place today apply to tobacco products, medicinal products and medical treatment available only on prescription, and to "surreptitious" or "subliminal" advertising. However, this ban does not extend to "product placement" (which nevertheless should "in principle, be prohibited") in cases "where the viewer is adequately informed of the existence of product placement". Moreover, there are "strict criteria" for the advertising of alcoholic beverages.

6.8 Only in this last regard is it stated that advertising should not specifically target minors. In all other aspects relating to harm to the physical, mental or moral development of minors (such as directly inciting children or indirectly inciting their parents to purchase goods or services that are advertised, taking advantage of their lack of experience or their credulity, or advertising "included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars"), the rules in force merely offer general recommendations or make reference to "codes of conduct".

6.9 It should also be pointed out that although the Directive on unfair commercial practices contains a provision on unfair practices targeting "a clearly identifiable group of consumers who are particularly vulnerable" specifically because of "their age or credulity", it has not been interpreted as prohibiting the above practices and nor has it been transposed or implemented to this effect in the Member States (17).

6.10 Apart from these EU law provisions, other traditional instruments establish core principles that in turn underpin the latest developments in fundamental EU legislation (the Lisbon Treaty and the European Charter of Fundamental Rights).

6.11 At the same time, both internationally and in the different Member States, professionals in the field – and in particular, the EASA (18) – have developed a set of provisions for self-regulation of their commercial practices that clearly demonstrates their commitment to protecting children. This does not remove the need, stated in a number of international and Community bodies, to guarantee a high level of respect for children and their protection in order to ensure their physical, mental and moral development, with concern for their own interests, their wellbeing and the preservation of the family environment and ties.

7. Advertising aimed at young people and children and completion of the internal market

7.1 The market for advertising and marketing in Europe is highly competitive, is dependent on the whims of fashion and is particularly vulnerable to the effects of the economic and financial crises. Major differences in national regulations in the field of advertising can not only influence results, but can also form a barrier to its growth in the internal market and be a source of discrimination and less fair competition. In particular, advertising aimed at children and young people is booming, but the significant differences in national regulations and divergent requirements mean that advertising agencies do not operate on a level playing field; this leads to higher costs as a result of having to adapt their campaigns to meet different legal obligations and requirements. These differences also encourage agencies to adopt less scrupulous competitive practices, in an attempt to circumvent these problems and win market share. Legislative harmonisation that imposes similar conditions across Europe, completing the internal market in this area, could make a significant contribution to creating a more transparent market in which all advertising agencies are able to carry out their business on the basis of their skills and capabilities with the aim of meeting consumer demand effectively, rather than taking advantage of differences in national legislation, to the detriment of healthy and fair competition.

8. Legal base for concerted Community-level action in the field of advertising aimed at children and young people

8.1 To date, the Community directives that have regulated advertising at EU level have commonly taken as their legal base the treaty provisions concerning completion of the internal market, today Articles 26 and 114, albeit heavily modified. This is certainly a major concern, but should not be the sole concern. Other Community initiatives, whose aims more specifically target television broadcasting, instead took as their legal base the text that at the time applied to the right of establishment and to services, now corresponding, albeit with substantial changes, to the current Articles 49 et seq. and 56 et seq. Lastly, in more recent initiatives on child protection and child pornography, but still prior to the current Lisbon Treaty, the legal base used was taken from the provisions referring to cooperation in criminal matters.

8.2 It is worth recalling that the current Lisbon Treaty enshrined substantial changes in all of these aspects and offers a range of new possibilities for Community action, which we must be able to interpret and implement. The most important innovation was the incorporation of the European Charter of Fundamental Rights into primary EU legislation, followed by the change to the legal nature of cooperation in criminal and civil matters and lastly, the changes made to a number of the Treaty's provisions, such as those concerning completion of the internal market, consumer protection and respect for human dignity. The Commission also recently based its proposed data protection regulation on the European Charter of Fundamental Rights and the abovementioned Lisbon Treaty provisions.

8.3 The issue of advertising that targets children and young people is, first and foremost, an issue of citizenship and the protection of fundamental rights; Articles 1, 3, 24, 33 and 38 of the Charter, as referred to above, provide a substantive legal base that amply justifies the need for Community action. To these we should definitely add Articles 2, 3(5) and 6 TEU and Articles 4, 9 and 10 TFEU.

8.4 In this field, in addition to the Member State governments, whether in the Council or in the area of enhanced cooperation (Article 20 TEU), national parliaments also have an important role to play under the terms of Article 12 TEU and are called on to shoulder this responsibility.

8.5 Completion of the internal market is also one of the most important goals in this field, hence the coverage of Article 3(3) TEU and Articles 26 and 114 et seq. TFEU. Furthermore, Articles 12 and 169 TFEU open up new possibilities for consumer protection. With regard to procedural aspects, Articles 67 et seq., especially Articles 81 and 82 TFEU, provide the bases for a civil and criminal framework that will help complement the legal framework for child and youth protection in this field.

8.6 Lastly, the Community-level approach to this matter adheres to the principles of subsidiarity and proportionality (Article 5(3) and (4) TEU), in that its goal for the cross-border dimension cannot be achieved to a sufficient degree by the Member States within their national systems alone. The objective of the initiative could therefore be better achieved by action at EU level, in accordance with the subsidiarity principle. Furthermore, the scope of the initiative should be confined to aspects which pose specific practical problems. It should not address aspects that can be more appropriately regulated by national legislation, thereby giving due regard to the principle of proportionality.

Brussels, 18 September 2012 The President of the European Economic and Social Committee Staffan NILSSON

(1) This proposal led to the adoption of Decision 2008/1351/EC, OJ L 348, 24.12.2008, p. 118.

(2) Beyond the already extensive bibliography on this issue, which there is no need to detail here, special reference should be made, due to its importance, to the study produced by the European Parliament's Directorate-General for Internal Policies on Advertising Rules and Their Effects under the New Audiovisual Media Services Directive (April 2009).

(3) See opinions OJ C 287, 22.09.1997, p. 11, OJ C 407, 28.12.1998, p. 193; OJ C 48, 21.02.2002, p. 27, OJ C 61, 14.03.2003, p. 32, OJ C 208, 03.09.2003, p. 52, OJ C 157, 28.06.2005, p. 136; OJ C 221, 08.09.2005, p. 87; OJ C 325, 30.12.2006, p. 65, OJ C 224, 30.08.2008, p. 61, OJ C 77, 31.03.2009, p. 8, OJ C 317, 23.12.2009, p. 43, OJ C 128, 18.05.2010, p. 69; OJ C 48, 15.02.2011, p. 138; OJ C 24, 28.01.2012, p. 154; OJ C 43, 15.02.2012, p. 34; opinions on the Responsible use of social networks (See page 31 of this Official Journal) and opinions on a European Strategy for a Better Internet for Children (See page 68 of this Official Journal).

(4) Draft report on the protection of minors in the digital world, 2.4.2012 by the EP Committee on Culture and Education, Rapporteur: Sílvia Costa (PE486.198v01-00) in http://www.europarl.europa.eu/sides/getDoc.do?type=COMPARL&mode=XML&language=EN&reference=PE486.198

(5) In Australia, Kelly et al. (2007) highlight that on average per week, children between the ages of 5 and 12 watch 96 advertisements for food products, of which 63 had a high fat or sugar content (Kelly, B. P., Smith, B. J., King, L., Flood, V. M. & Bauman, A. (2007) Television food advertising to children: the extent and nature of exposure, Public Health Nutrition, Vol. 10, No. 11, pp. 1234-1240. Copyright Cambridge University Press). In the United States a study by Powell et al. (2007) suggests that 27,2 % of non-programmed television content concerns food, which represents an average of 23 advertisements per day (Powell LM, Szczypka G, Chaloupka FJ (2007) Exposure to Food Advertising on Television Among US Children, Archives of Pediatric and Adolescent Medicine 161, 553-560).

(6) http://www.apa.org/pi/families/resources/advertising-children.pdf.

(7) Currently, five Member States ban any advertising in children's programmes, four have adopted a partial ban or other type of restriction on children's programmes, at certain times of day or for certain types of product, and seven ban any sponsor's logos in children's programmes. See http://ec.europa.eu/comm/avpolicy/reg/tvwf/contact_comm/index_en.htm.

(8) A7 – 0369/2011, 21.10.2011.

(9) A7-0155/2012, especially points 24, 28 and 29 (Rapporteur: Maria Irigoyen Pérez).

(10) COM(2011) 942 final, 11.1.2012.

(11) COM(2011) 556 final, 13.9.2011.

(12) COM(2012) 196 final, 2.5.2012.

(13) See footnote 6.

(14) In the case of Sweden, this led to the EU Court of Justice ruling of 9 July 1997 confirming its compatibility with EU law (Cases C-34 and C-35/95 Konsumentombudsmannen/De Agostini (Svenska) bForlag AB and TV-Shop i Sverige AB).

(15) In its opinion in OJ C 221, 8.9.2005, p. 87, the EESC took a clear stance against this approach.

(16) Cf. Directive 2005/29/EC of 11 May 2005, point 7 of the Preamble (OJ L 149, 11.6.2005).

(17) Article 5(3) of Directive 2005/29/EC of 11 May 2005 (OJ L 149, 11.6.2005). Nevertheless, in its recent and welcome Communication, the Commission appears to be considering the possibility of tackling "the use of questionable or prohibited commercial communications", which it is hoped will include those condemned in this document (COM(2011) 942 final, 11.1.2012).

(18) In this regard, it is worth highlighting the interest expressed by the Commission's DG INFSO in drawing up a European code of good practice (19.3.2012).