28 Apr 2023

How to manage risks when advertising to children


A report from the Advertising Standards Authority (ASA) states that 97 per cent of 13 to17 year olds have their own social media account that exposes them to age restricted products and services such as alcohol, cosmetic interventions, weight loss products.

With many of these children viewing content on their own personal devices, parental control is often limited. Consequently, the platforms and the brands advertising on them are under more scrutiny and should be taking serious steps to protect children from harmful content.

Iona Silverman, Partner at Freeths is keen to clarify this issue and provide tips when advertising to children, covering the follow:

Advertising or marketing should not cause harm

This is a very basic tenet which encompasses a broad range of potentially infringing activity.

Recently Balenciaga ran an ad featuring children in a sexualised setting. The child models were pictured holding teddy bears in what appeared to be bondage gear.

Further to a claim in the US, and public outcry, the company was forced to pull the ad. It is facing a multimillion-dollar lawsuit and has potentially caused long term reputational damage.

At a more basic level, marketing should not encourage children to pressure their parents to buy certain products. Morrisons fell foul of this rule with its advert in which unhappy children were cheered up at the prospect of a visit to Morrisons because they would be able to get Walt Disney cards and therefore might win a trip to Disneyland.

Certain products or services are subject to additional age-restrictions

Age-restricted marketing communications should not target under-16s or under-18s (depending on the product) through the selection of media or the context in which they appear.

These rules apply to products such as foods or drinks that are high in fat, salt or sugar as well as lotteries and gambling, alcohol and e-cigarettes.

No age-restricted ads should appear in or around media obviously directed at the relevant protected age category.

Where marketing communications are directed at audiences based on certain data, the marketing must be targeted to prevent the likelihood of those in the relevant protected age category from receiving them. Additionally, if using one-to-many media, marketers must not place ads where children and young people are likely to make up more than 25 per cent of the audience.

Processing personal data belong to a child

The minimum age for consent to processing a child's data in the UK is 13 years old (16 years old is the minimum outside of the UK under GDPR).

The data controller is under an additional duty to make reasonable efforts to verify that, where consent is given by a parent or guardian, that person actually has responsibility for the child.

Children have the same right as adults to object to the processing of their personal data for direct marketing. Therefore, any marketing activity directed at a consenting child must stop if at the request of that child (or someone acting on their behalf).

Child influencers

The world of kidfluencers is booming: BBC Newsround's 2019 survey of 3,000 children aged 8 to 12 in the UK, United States and China found that children are three times more likely to want to be a YouTuber (29 per cent) than an Astronaut (11 per cent).

No specific advertising or employment regulations govern child influencers, meaning there is currently a gap in protection in the UK. In addition to questions around contracting with children and use of children's data, working with child influencers can give rise to safeguarding and ethics questions and therefore is an area where advertisers should tread very carefully.

In May 2022 the Digital, Culture, Media and Sport Committee published a report recommending that comprehensive new legislation should be enacted to adequately address the complexities of the influencer industry and should include provisions on working hours and conditions, mandate the protection of the child's earnings, ensure the child's right to erasure, and bring the child's employment arrangements under the oversight of local authorities.

If working with children, you will want to consider how the contract works, how you use their data, and crucially, safeguarding.

T&Cs targeted at children

Any information given to, or provided in communication with, a child must be in “such a clear and plain language that the child can easily understand”. Therefore T&Cs directed at children need to be written differently to those targeted at adults.

To learn more about this topic, click here to find out more information. Advertising to children - the impact of getting it wrong - Freeths