November 27, 2018

Surprise! Marketing chocolate to kids can be ok

Kinder Surprise chocolate has been given the okay to advertise itself as "...made especially for kids..." in digital marketing by the Advertising Standards Authority (ASA).

The ad in question played online and on TV with the tag-line "Kinder chocolate is made especially for kids". The complaint was this breached the Children and Young People's Advertising Code by marketing junk food to children.

The Code aims to protect children who are easily susceptible to external influences from information and material that may injure their well-being, and recognises the best interests of children are a primary consideration.

Key considerations in determining code compliance include:

  • whether the nature and intended purpose of the product or service being promoted is principally or generally appealing to children or young people;
  • the context of the ad and whether the presentation of its content (themes, colours, images etc) is appealing to children or young people; and
  • the audience and whether children are likely to be a significant proportion of that expected average audience.

Despite Kinder chocolate meeting the definition of an occasional food and principally appealing to children, the extent to which the online advertisement targeted children was mitigated by it being placed in a digital environment targeted at 25 to 54 year olds. But, the TV advertisement was played at 8.01pm on a Wednesday during My Kitchen Rules and the ASA did not have accurate data on the number of children actually viewing the show at that time and so could not conclusively determine if children were likely to be a significant proportion of the expected audience.

Another consideration under the Code is whether the advertisement targets children or young people and contains anything likely to result in their physical, mental or moral harm. As the Kinder Chocolate advertisement promoted an unhealthy food and unhealthy foods contribute to obesity (which has high rates in New Zealand), the ASA observed the advertisement was likely to cause physical and mental harm irrespective of the products small portion size or the manufacturer's intention that it was a treat, only to be consumed occasionally.

The Code applies to all advertisements that target children or young people whether contained in children's or young people's media or otherwise. Businesses should take active steps to ensure their advertisements comply with the Code.

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Recently a court in Shenzen, China, awarded damages to the tech giant Tencent as a result of a finding of copyright infringement – the work in question was written by Dreamwriter, an automated news-writing system developed by Tencent.

However, as AI applications become more autonomous, and make creative decisions with minimal human input, a question arises as to whether this is the right outcome. 

Our Copyright Act is currently under review and one of the questions MBIE has posed relates to whether the current rules relating to computer generated works are still fit for purpose and whether any changes are required. The first round of submissions are now closed, but watch this space if you would like to keep up to date on where we land on this issue.       

If you have any questions relating to adoption or use of AI technology, please get in touch.

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