Advertising to children in Finland

Citation

Segercrantz, M. (2013), "Advertising to children in Finland", Young Consumers, Vol. 14 No. 2. https://doi.org/10.1108/yc.2013.32114baa.001

Advertising to children in Finland

Article Type: Legal briefing From: Young Consumers, Volume 14, Issue 2

Today, advertising is more versatile than ever before. We are exposed to marketing whenever and wherever, whether we want it or not, and sometimes even without noticing. It has been well recognized in the laws of different countries that when it comes to advertising, children need special protection due to their lack of experience and natural credulity. Finland is no exception. Advertisers have a certain responsibility to protect young people from such advertisements which could be misleading or harmful for their development. To that end, it is important to be familiar with the rules and regulations governing marketing to minors. In this article, we will provide a general overview of the Finnish legal framework and practice.

Introduction

Under Finnish law, the key principle of marketing directed at consumers, outlined in the Consumer Protection Act (38/1978), is that inappropriate or unfair conduct is not allowed in marketing. This means that marketing practices may not be in clear conflict with the generally accepted norms and values of the society. Marketing which is directed at minors – or reaches them – is considered inappropriate if it takes advantage of the lack of experience or credulity of a minor, if it is likely to have an adverse effect on his or her balanced development, or if it aims at disregarding the parents’ possibility to fully educate their children.

It follows from this principle that marketing practices should always be evaluated on objective grounds. For example, whether or not information given in marketing materials has been accurate, is evaluated based on the understanding the consumer must have developed on the basis of the given information. Fairness is evaluated differently with respect to different target groups. Thus it must be taken into account that the ability to understand hidden messages in advertisements such as irony, sarcasm or a commercial tone depends in part on the age of the recipient.

Other main principles of the Consumer Protection Act, which are particularly important in terms of marketing to children, are the prohibition of aggressive marketing and the obligation to make marketing clearly recognizable as such. All of these requirements are reflected in and strengthened by provisions in various other laws which place restrictions on marketing to minors. These laws will be introduced more in detail later on in the article.

The Finnish Consumer Ombudsman, who operates in connection with the Finnish Competition and Consumer Authority (FCCA), is responsible for supervising that the laws protecting consumers are observed. The Ombudsman has issued recommendations on marketing to minors, which are not directly binding but provide useful sources of information for advertising professionals. Other important guidelines are included in the Code of Advertising and Marketing Communication Practice of the International Chamber of Commerce as well as the self-regulatory codes on direct marketing issued by the Finnish Direct Marketing Association (ASML).

Young people as consumers

When interpreting the laws and other rules concerning marketing to minors, it must be taken into account that minors are not a totally homogeneous group. Teenagers obviously have better abilities to understand the contents of marketing messages than small children. Therefore, the Finnish courts and authorities as a rule differentiate between small children, children, and youth. What all those groups have in common, however, is that individuals under the age of 18 are incompetent to enter into most agreements, at least without the consent of their guardian. This sets very clear boundaries on what can be marketed to minors and in what ways.

Minors may as such make purchases that are ordinary for them and reasonably priced in relation to their pocket money. They can also spend money they have earned by their own labor. Decisions concerning other purchases should be made by the parents. From the viewpoint of advertisers, this means that products and services which are unusual for young consumers or too expensive for them to buy with their own money may not be marketed to that audience. Also, the Finnish Consumer Ombudsman has outlined that minors cannot buy with credit, even on the internet. Consequently, minors may not be granted consumer credits or be subject to the collection of debts. Pursuant to the Guardianship Services Act (442/1999), minors may only enter into such transactions which, in view of the circumstances, are ordinary and of little significance. Other transactions entered into without the consent of the guardian or parent are void.

The provisions related to consumer protection contain certain restrictions on the right to market products directly to minors. In particular, the Finnish Market Court and the Consumer Ombudsman have in their practice prohibited advertisements in which children ask their parents to buy certain products. It has been recognized that advertisements like this have a particularly strong influence on children. The Consumer Ombudsmen in the Nordic Countries (Finland, Sweden, Norway and Denmark) have in their joint Position Paper on Social Media Marketing of 3 May 2012 further specified the assessment criteria. Whether marketing exhorts or invites children to buy certain products must be assessed on a case-by-case basis, taking into account the child’s age, development and other factors rendering children particularly vulnerable. Attention should be drawn to how clearly the exhortation has been phrased (“go buy the book”), whether the medium used was targeted at children directly and individually, and how easy it is to make the purchase. For example, in the case of internet marketing, children may be one click away from making a purchase. Parents have the primary responsibility for the education of their children. Therefore, their authority to make the purchasing decisions in the family should be respected. Direct marketing to children always requires the consent of the guardian. It ensues from the rules of data privacy law that the collection of the personal data of minors is very restricted.

Special attention must be paid to the organization of promotional games in conjunction with the marketing of products that are of interest to children and young people. According to the Consumer Ombudsman, even if marketing by adult standards clearly explains the possibility of participating without buying the product, children may not be capable of making the same kind evaluation. Consequently, promotional games in which consumers can participate by buying a product should generally not be aimed at children.

Internet and social media marketing

In connection with internet and social media marketing, one important principle of the Consumer Protection Act which advertisers must bear in mind is that marketing messages must be clearly identifiable as such. Social media marketing is typically conversational, and for example friend-to-friend marketing is nowadays common. It can be hard for children to recognize such communications as marketing, let alone to identify on whose behalf they are made. Children should never be used as sales channels or in friend recruitment (i.e. in helping traders to find buyers among one’s friends). It is also not good practice to invite social media users to share marketing materials especially aimed at children. Minors may be more easily influenced by this kind of advertising, due to their lack of experience and critical sense. The requirements are even more stringent when it comes to products which may not be sold to minors. In such cases advertisers have an obligation to apply effective technical measures to verify the age of their audience.

Advertising on the internet has created new kinds of situations for the legislator and the authorities to consider. It is not prohibited to market products to minors, but special attention must be paid to the appropriateness of advertisements as well as other information and images presented on websites. Internet pages directed at children must be checked often for functionalities and materials which are not suitable for minors, taking into account the laws protecting minors. This includes monitoring the links placed on such websites. Also, the contents of other internet pages which are visited by minors because they contain material which is interesting for them should likewise be checked on a regular basis. Minors should be advised to be cautious and to follow certain etiquette in the internet. Where a website for minors contains a discussion forum, the administrator has a duty to inform the visitors about such rules of conduct. When it comes to websites which contain material which is prohibited from minors, the access to and ability to purchase, for example, certain films and games must be restricted.

Agreements often contain terms which minors, especially children, cannot fully understand. Therefore, entering into contracts in most cases requires the express consent of the guardian. If such permission is not duly obtained, surprising situations may arise. There have been several cases reported in the media recently, where a child has made a purchase – often by mobile phone or on the internet – and thereby entered into an agreement which requires monthly payments. Children may also buy upgrades and additional features within games in accordance with their terms and conditions. Situations like this may lead to costs which neither the child nor the parent were aware of, but the parent is nevertheless liable to pay as the owner of a child’s mobile subscription or because the child had access to the parent’s credit card information. (Courts and authorities may in practice overturn such obligations case by case.) To prevent such unreasonable situations, the Consumer Ombudsman has specifically outlined that children may not be directly encouraged to buy products or services using their mobile phone. Such messages may not be presented in connection with products interesting to children, or in television commercials shown during the commercial breaks of children’s programs. Also, when playing a game requires the acceptance of terms and conditions, they should contain a statement that a guardian’s approval is necessary.

Marketing of certain products

Due to concerns related to children’s health as well as the potential effect of marketing to their emotional development, the Market Court and the Consumer Ombudsman have imposed certain restrictions on the marketing of foodstuffs to children. For example, advertisers have been forbidden to create false impressions to children that eating reduces loneliness or that food can even be used to acquire friends. According to a decision of the Consumer Ombudsman, a commercial in which a child said she liked a certain lollipop because it contained 0 per cent fat was considered inappropriate, because it created the impression that the candy had health benefits and that children should be conscious of their weight. In general, advertisers should be cautious of creating pressure on minors with respect to their appearance and, on the other hand, of getting children too excited about food products which are unhealthy.

Lastly, it must be pointed out that certain products may not be marketed to minors at all. Alcohol is one example. According to the Alcohol Act (1143/1994), only mild alcoholic beverages may be advertised in the Finnish market. Even such marketing is prohibited if it is aimed at minors or if young persons are depicted in it. Moreover, alcohol advertisements may not be shown on television between 7 a.m. and 9 p.m. or in a movie theater in connection with a film which is allowed to persons under the age of 18. The definition of marketing is very wide, extending even to marketing other products in a way that brings to mind a certain strong or mild alcoholic drink. Tobacco products may not be marketed at all in Finland, to any audience. The Consumer Ombudsman has even forbidden the sale of candy in a package resembling a pack of cigarettes, so that children would not develop a positive attitude towards tobacco products. The marketing of medicinal products to minors is prohibited under the Medicines Act (395/1987).

Acknowledgements

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

About the authors

Mikael Segercrantz is a Partner and Head of Roschier’s Marketing and Consumer law practice. His main focus is on marketing and consumer law, regulatory matters and intellectual property, including litigation. Mikael has advised clients, including international large brand owners, in various types of marketing law and regulatory questions, such as marketing campaigns and labeling issues. Mikael frequently writes and lectures on topics relating to marketing and advertising regulatory issues as well as IPR. He is the main contact in Finland for the Global Advertising Lawyers Alliance (GALA).

Suvi Laes is an Associate at Roschier’s Marketing and Consumer law practice. She advises clients on marketing and consumer law and intellectual property related matters.