Advertising to children in India

Article Type: Legal briefing From: Young Consumers, Volume 11, Issue 2

Although advertisements help us to become aware of the products in the market, they also have their negative effects. Children today are exposed to all types of advertisements in the various media like television, print and the internetas well. Children in general are more susceptible and get easily influenced by advertisements.

Children are innocent and not so mature. When a marketer advertises a product on television, they do not understand that it is a business and their main aim is to sell. They do not understand that advertisers try to push their products and market in such a way that children want to buy it. Children take everything at face value and believe without a doubt the messages in the advertisements. Advertisements are made in such a way as to attract the attention of children. Children do not understand it to be marketing strategy. Children are an extremely vulnerable target audience and get easily carried away.

Legal implications

A host of laws and Acts like the “Cable TV Networks (Regulation) Act,1995” and the “Infant Milk Substitutes, Feeding Bottles and Infant Food Act” deal with child-related advertising in some way. Not only are there advertisements that are targeted at children but a host of them that feature young children, even babies. In most parts of the world, there are few or no specific rules concerning food advertising to children beyond the rules which must apply to all advertising. In India, even general rules pertaining to advertising are very lax. Also, there are no regulatory bodies that monitor TV advertisements. Apart from the Ministry of Information and Broadcasting that decides to intervene when it wants to, there are only voluntary groups like the“Advertising Agencies Association of India”, and the “Advertising Standards Council of India”, both of which are business organizations and can only put moral pressure on advertisers and companies to withdraw objectionable advertisements. There is an urgent need for voluntary and government pressure groups to seriously take note of the situation. The government needs to draft and implement laws that do not deal with advertising in general but are specific and relate to every aspect of advertising,especially those that target young children and pertain to food. In other parts of the world, there exist voluntary groups like the “Adbusters” and“Mothers groups” that watch and pressure governments to clamp down on aggressive and intrusive advertising.

Junk food advertising and children

Research has shown that junk food advertisements influence children greatly leading to an increased demand for junk food by children. When children watch young adults in good shape eating junk foods in the advertisements they assume that it is good for their health. They do not know that junk food is not good for health. They are unaware of the fact that junk food does not contain nutritional value. They may even think that by eating these junk foods they might become like the thin and fit models in the advertisements.

Research has shown that children increased their consumption of junk foods after seeing these advertisements. They are seen to be so influenced by these ads that they almost doubled their consumption of these unhealthy snacks and foods.

In a study they exposed children to candy commercials. It was seen that those children who were exposed to the candy commercials were highly influenced. In fact, these children chose candy over fruits as snacks. They preferred candy rather than a healthy food like fruits.

When the commercials were eliminated and the children watched them less it had a positive effect. It encouraged them to pick the fruits over the candy. Recent statistics show that obesity of children under the age of five is increasing at a high rate. Childhood obesity is on the rise and one of the main reasons for this has been seen as excessive consumption of fast foods and junk foods. Not surprisingly, it has been seen that childhood diabetes is also on the rise.

A recent case under the Prevention of Food Adulteration Act

Global consumer goods giant Hindustan Unilever has been held guilty by a high-powered body under the health ministry of making false and misleading claims on its malted beverage “Kissan Amaze”. The company claims that Amaze provides over 30 percent of key brain nutrients required by kids daily.

This is the first such case investigated by the committee appointed by Food Safety Authority, which held that the company violated regulatory laws by making claims detrimental to healthy food habits of children, and also without scientific evidence. While HUL has been held guilty, other companies which are making tall claims on their food products, can also be under the scanner soon.

Significantly, the case will serve as a major deterrent to food and beverage companies against making false and misleading claims, and a pointer for framing guidelines to prevent deceptive advertisements.

Under the Prevention of Food Adulteration Act (PFA) operational in states,those found making misleading claims are liable to six months imprisonment. State governments can take action against the company, and even ask it to withdraw the product altogether, sources added.

The case will also serve as a basis for framing guidelines for companies to restrict misleading and deceptive claims made to consumers on nutrition, health,exceptional intelligence or physical ability.

Television

The Cable Television Networks (Regulation) Act, 1995 provides guidelines for programmes and advertisements on television. All programmes must adhere to the programmes codes as laid down in Section 6 of The Cable Television Networks(Regulation) Act, 1995 before being transmitted. The codes of the Cable Act include the following provisions relating to children:

• 1.

  Programmes on cable television should not denigrate children.

• 2.

  Programmes meant for children should not contain any bad language or explicit scenes of violence.

• 3.

  Programmes for adults should normally be aired after 11 p.m. and before 6 a.m.

• 4.

  Programmes unsuitable for children must not be shown at times when the largest numbers of children are viewing.

• 5.

  Unhealthy practices showing children begging or behaving in an undignified or indecent way are prohibited.

A first offence for contravening the Cable Act is punishable with up to two years’ imprisonment or with a fine of up to 1,000 rupees (£12) or both. For subsequent offences, the punishment is prison for up to five years and a fine of up to 5,000 rupees (about £60).

Books and magazines

Publications that are deemed “harmful” to children in India are regulated by the Young Act. “Harmful publications” are defined as“books, magazines, pamphlets, leaflets … wherein stories are told portraying criminal offences, acts of violence or cruelty, incidents of repulsive or horrible nature, in such a way that the publication as a whole tends to corrupt a child into whose hands it might fall, whether by inciting or encouraging the child to commit offences or acts of violence or cruelty or in any other manner.” The Young Act details penalties for the sale, hire,distribution, public exhibition, circulation, printing, production or possession of harmful publications. Also advertising for a “harmful publication”is punishable by up to six months imprisonment, with or without a fine. The court can also order destruction of the offending publication.

Shaktiman

The children’s television series Shaktiman has been a cause of controversy in India for several years. Children across the country have attempted to emulate their hero, Shaktiman, with tragic consequences. Since 1998 there have been accidents and fatalities as children have risked their lives believing that Shaktiman will save them, or that they can assume his powers. Groups calling for the programme to be taken off the air were not successful,but the Young Act has been used to address the situation. Unfortunately the law does not seem to have solved the problem. On June 23, 2009, a nine year- old school girl in Kolkata accidentally hung herself by attempting to twirl in the air like Shaktiman.

Advertisements

The Code for Self-Regulation

Adopted by The Advertising Standards Council of India under Article 2 (ii) of its Articles of Association at the first meeting of the Board of Governors held on November 20, 1985. The Code was amended in February 1995 and more recently in June 1999.

The purpose of the Code is to control the content of advertisements, not to hamper the sale of products which may be found offensive, for whatever reason,by some people. Provided, therefore, that advertisements for such products are not themselves offensive, there will normally be no ground for objection to them in terms of this Code.

Chapter III of the code contains provisions: to safeguard against the indiscriminate use of Advertising in situations or of the Promotion of Products which are regarded as Hazardous or Harmful to society or to individuals,particularly minors, to a degree or of a type which is Unacceptable to Society at Large.

Part 2 of chapter III states Advertisements addressed to minors shall not contain anything, whether in illustration or otherwise, which might result in their physical, mental or moral harm or which exploits their vulnerability. For example, Advertisements:

• 1.

  should not encourage minors to enter strange places or to converse with strangers in an effort to collect coupons, wrappers, labels or the like;

• 2.

  should not feature dangerous or hazardous acts which are likely to encourage minors to emulate such acts in a manner which could cause harm or injury;

• 3.

  should not show minors using or playing with matches or any inflammable or explosive substance; or playing with or using sharp knives, guns or mechanical or electrical appliances, the careless use of which could lead to their suffering cuts, burns, shocks or other injury;

• 4.

  should not feature minors for tobacco or alcohol-based products; and

• 5.

  should not feature personalities from the field of sports, music and cinema for products which, by law, either require a health warning in their advertising or cannot be purchased by minors.

Though the idea is to self-regulate, once the code comes into play, a brand can be penalized for breaking the rules. Even the Food Safety and Standards Act of 2006, from which these guidelines have been derived, prescribes a penalty of up to Rs10 lakh for misleading food advertising.

There are some strict laws relating to advertising and children. Selling,hiring, distributing, exhibiting or circulating an obscene object to a person under the age of 20 year is punishable with imprisonment for a term up to three years or fine of up to 2,000 rupees (£26) or both. Subsequent offences are punishable with an imprisonment of up to four years and a fine of up to 5,000 rupees (£60).

Internet

Regulation on the internet in India is quite strict. The IT Act penalizes publication and transmission of material which is obscene, lascivious or appeals to prurient interest. The Act can be invoked for such material on the ground that it has the propensity to corrupt the minds of children.

Film

The Board of Film Certification grants appropriate viewing ratings for films. If a film is suitable for all and subject to no restrictions it will be given a U certificate. A UA certificate is granted for films where children under 12 must be accompanied by an adult in the cinema. A film that is not suitable for under-18s is given an A certificate. The granting or refusal of films certificates is published in the Gazette of India. The certification once granted is valid for a period of 10 years.

Code for commercial advertising over All India Radio

Advertising is an important and legitimate means for the seller to awaken interest in his goods and services. The success of advertising depends on public confidence; hence no practice should be permitted which tends to impair this confidence. The standards laid down here should be taken as minimum standards of acceptability which would be liable to be reviewed from time to time in relation to the prevailing norm of listeners’ susceptibilities.

The following standards of conduct are laid down in order to develop and promote healthy advertising practices in All India Radio. Responsibility for the observance of these rules rests equally upon the Advertiser and the Advertising Agency.

Advertising and children

No advertising for a product or service shall be accepted if it suggests in any way that unless the children themselves buy or encourage other people to buy the products or services, they will be failing in their duty or lacking in loyalty to any person or organisation.

No advertisement shall be accepted which leads children to believe that if they do not own or use the product advertised they will be inferior in some way to other children or that they are liable to the condemned or ridiculed for not owning or using it.

Infant milk substitutes

The Indian government is committed to promoting and protecting breastfeeding as a practice. The Parliament passed the Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act in 1992.This Act prohibits the promotion of infant foods, infant milk substitutes and feeding bottles. This is to ensure “that no impression is given that feeding of these products is equivalent to, or better than,breastfeeding”. Violations of the Act result in imprisonment for up to three years and/or fine of up to 5,000 rupees.

Summary

There are a few laws which deal with child related advertising issues in India, although these are by no means comprehensive. In practice television channels often flout even the existing vague laws with great impunity. Also there is no particular legal framework for sponsorship of children’s programmes on television, so advertising to children in this way is unregulated. The debate over advertising junk food to children is also raging in India. However, despite these negatives, advertising law has come a long way in India and increased awareness of the issues concerning advertising to children is improving the situation.

Acknowledgements

Published in conjunction with the Global Advertising Lawyers Alliance (222.gala-marketlaw.com). GALA is an alliance of lawyers located throughout the world specializing in advertising law.

Sharad VadehraKan and Krishme, New Delhi, India

Corresponding author

Sharad Vadehra can be contacted at: knk@kankrishme.com