According to lawyers, the introduction of a limitation related to appearance of children in advertisements of products that protect their health or safety would adversely affect the sectors offering such products. In fact, a problem that should be tackled with is advertisers' non-compliance with applicable provisions.
The topic connected with the prohibition against appearance of minors in advertisements (except for the purpose of promotion of clothes and related articles) and directing advertising messages to them (except products connected with education and development) is still a matter for public debate. An opinion in this scope was issued by the Committee for Culture and Mass Media. Next, it was considered by the Petition Committee and later a postulate was directed to the Ministry of Culture and National Heritage. Prior to making final decisions, lawyers warn that the introduction of further restrictions will not solve the current problems on the advertising market, but it may even lead to discrimination of economic operators from some sectors who apply fair practices.
"The ban against showing children in advertisements would result in considerable difficulties in conducting economic activity, which would be faced by manufacturers offering articles for children, such as child seats, hygiene products, food and medicine. Commercials in which (for example) cosmetics for infants are presented only by adult actors would be in contrast with the intended use of such products, and, consequently, ineffective", said Paweł Derlikowski, an advocate from Kancelaria Pasieka Derlikowski Brzozowska i Partnerzy in an interview with MondayNews.
In the expert's opinion, a prohibition against participation of children in advertisements is not likely to be adopted, since such radical projects are usually corrected in the course of works of the Sejm. That is the reason why producers of articles for children should not fear losses. However, people are already coming up with ideas about how to circumvent a prohibition that may be introduced, for example commercials could show cartoon figures instead of people. Derlikowski emphasised that it seems groundless to introduce further rules that will not be followed, anyway, in particular taking into account the fact that currently applicable provisions are not enforced. The introduction of further legal acts, aimed to protect children in theory only, seems futile.
"As it stems from my observations, on TV there are many commercials that directly encourage children to buy toys. In fact, such persuasive messages are already prohibited. What is more, the youngest take part in such commercials. In such an event the first issue to be dealt with is non-compliance with currently applicable legal provisions. It is not bad law that is a problem, but rather a failure by advertisers to comply with legal provisions and a failure by courts to enforce them", emphasised Paweł Derlikowski.
The advocate explained that the legislation does not forbid to direct advertisements to children, but rather to directly persuade them to buy. A product or service should be presented in a form that is the most suitable for the youngest recipient. There is a fine line between direct and indirect persuasion, which in each case requires individual assessment of the complete advertisement. It allows to evade the legal provisions in force and is the probable reason for the establishment of the project.
"The youngest viewers are particularly susceptible to advertising messages. In most cases they treat them literally and uncritically. It contributes to shaping in them an unconscious consumer approach. However, in my opinion, currently applicable legal provisions do protect their interests well enough. For example, Article 16B Section 2 of the Broadcasting Act is completely devoted to protection of minors against advertisements. The Act also prohibits to interrupt children's programmes with commercials", said the specialist.
Moreover, the interests of the youngest are also protected under Article 16 Section 1 item 3 of the Unfair Competition Act. Pursuant to this provision, it is forbidden to advertise products in a way that might take advantage of gullibility of children. Children's rights are also protected under the Act on the Protection of Public Health against the Effects of Tobacco Use and the Act on Upbringing in Sobriety and Prevention of Alcoholism. The expert also pointed out to the Regulation of the National Radio and Television Council dated 23 June 2005, defining the conditions of dissemination of programmes and other messages, including advertising messages.
"Currently children appear also in advertisements of products dedicated for adults, e.g. banks or cars. They are to 'warm up' the image of companies and this function does not adversely affect them. That is why, in this case, children's participation in advertisements should not be prohibited. However, if the ban is introduced, producers of such goods would not suffer the consequences as severely as producers of accessories for children. As regards the banking or automotive sectors, there would be advertisements with no participation of kids, which, I believe, would also be effective", concluded Paweł Derlikowski.