Changes to the BCAP code regarding “pester power”

Can you tell when an ad is “persuading” kids to get their parents to buy them something, as opposed to simply “encouraging” them? And did you remember that “pester power” falls within the “Banned List” of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs)?

The background

Rule 5.9 of the UK Code of Broadcast Advertising (the BCAP Code) prevents “direct exhortations” to children and is currently worded as follows: “Advertisements must neither directly exhort children to buy a product or service nor encourage them to ask their parents, guardians or other persons to buy or enquire about a product or service for them”.

Following a process of public consultation, the Broadcast Committee of Advertising Practice (BCAP) is of the opinion that the rule is unlawful because it imposes a stricter standard than that required by the CPRs, by prohibiting even encouraging children to persuade their parents to buy a product or service.

The development

BCAP intends to replace “encourage” in rule 5.9 with “persuade” – the word used in the relevant provision of the CPRs.

BCAP’s view is also that the current “neither…nor” construction in their rule 5.9 suggests that it is designed to prevent two types of mischief: directly exhorting children to buy advertised products and directly exhorting their parents to buy advertised products for them. BCAP considers that rule 5.9 could therefore be read to put advertisers in jeopardy of a breach for even an indirect encouragement/exhortation. This is a stricter standard than that imposed by law. Therefore, BCAP rule 5.9 will be amended as follows (to match the wording of the CPRs – see para 28 of Schedule 1, the “Banned List”): “Advertisements must not include a direct exhortation to children to buy or hire a product or service or to persuade their parents, guardians or other persons to buy or hire a product or service for them”.

This is designed so that advertisers are not restricted from “encouraging” children to ask their parents to enquire about a product.

Why is this important?

Advertising rules that apply restrictions above and beyond the law (here the CPRs) can be a major irritation for advertisers and this amendment seeks to cure this. This is a good thing, as it lessens the chances of an advertiser being picked up for a “pester power” breach, especially an indirect one.

But remember of course that consumers can now bring civil actions for breaches of the CPRs. And what better way to run such a claim than using an upheld BCAP ruling to prove the CPR breach, especially now that the wording is identical between the two sets of rules?

Any practical tips?

It follows that advertisers must still take care not to put pressure on children to buy, or encourage their parents to buy them, the latest gadgets. Even if it feels like “indirect” exhortation, it would be a brave advertiser who sought to use this amendment to justify the encouragement (rather than “persuasion”) of kids to get their parents to spoil them.