News on advertisements targeting children and youth

Children and youth have considerable purchasing power. For instance, the younger generation is generally permitted to make purchase decisions that affect them and is given an opportunity to give their input with regard to many family decisions. According to a consumer study entitled “KidsVerbraucherAnalyse 2014” carried out on behalf of publisher Egmont Ehapa Verlag, outings are decided upon jointly (94 percent), family vacations are planned together (62 percent) and 84 percent of children can dispose of their allowance autonomously. Because of their significant purchasing power, minors are an attractive target group for companies. A few things must be taken into account with regard to advertisements targeting consumers under 18 years, especially with regard to No. 28 of the “black list” of the German Act Against Unfair Competition:

No. 28 on the “black list” of the Act Against Unfair Competition is a focus of jurisprudence

According to Annex No. 28 to Section 3 Para. 3 of the Act, a direct message embedded in advertisement that exhorts children to buy the advertised products themselves or to persuade their parents or other adults to do so is always impermissible. This regulation was the focus of jurisprudence in 2014 and the German Federal Court of Justice took a position on it in a series of decisions.

Interpretation of the term “children”

It continues to remain unclear whether, within the meaning of this regulation, “children” is meant to include both persons under 14 years as well as older minors. Since the German Federal Court of Justice has neither submitted this question for reference to the ECJ nor itself taken a position, companies should ensure that their advertising complies with the provisions of Annex No. 28 Act Against Unfair Competition with regard to minors 14 years and older as well.

Type of address

According to the “Goldbärenbarren” decision of the German Federal Court of Justice, direct exhortation within the meaning of this standard refers to a solicitation to purchase directed at children (BGH GRUR 2014, 686, 688). It does not include advertisements directed at everyone and which minors may also feel addressed by. Accordingly, the solicitation must therefore be targeted, i.e. be exclusively or primarily directed at children. This is the case when language typical of children is used, including common anglicisms, in conjunction with an address in the (informal) second person singular (“Du” in German) (BGH GRUR 2014, 289, 299 – Runes of Magic; BGH GRUR 2014, 1211, 1214 – Runes of Magic II). Conversely, a message such as “just buy five delicious H. products, and win” contains a purchase solicitation that is not directed at children (BGH GRUR 2014, 686, 688 – Goldbärenbarren) since this advertising message is addressed to adults as well as minors.

Ultimately, the question of whether advertising is directed at children in a targeted manner can only be answered based on assessment of the overall situation; factors such as the advertised product, type of medium chosen and design of the advertisement itself must all be taken into account. As a result of this case-by-case consideration, companies are left with rather unreliable guidelines, but ongoing developments in case law will result in more legal certainty.

Purchase exhortation must be in relation to specific products

In its “Zeugnisaktion” decision, the German Federal Court of Justice further determined that the requirement for prohibition under Annex No. 28 Act Against Unfair Competition is only satisfied if the purchase exhortation is in relation to a specific product or multiple specific products (BGH GRUR 2014, 1117, 1118). The reason for this is the reference in the statute to the “advertised products”. Accordingly, advertising for an entire range of goods is not sufficient; rather, a specific product must be referred to in the advertisement. With regard to advertising by an electronics store that offered a general discount of 2 EUR for every top mark (“1” in the German system) earned by students, the German Federal Court of Justice therefore found this to be permissible. Indeed, the advertisement indicated that the discount was to apply to all types of goods offered by the defendant.

The German Federal Court of Justice is interpreting this requirement very liberally, however. It has found that linking of certain products on a website can be sufficient to constitute a purchase exhortation for specific products (BGH GRUR 2014, 298, 300 – Runes of Magic; GRUR 2014, 1211, 1214 – Runes of Magic II). Companies must therefore be aware that purchase solicitations and product advertising – even if spread over various web pages – can be viewed as a whole by the courts as a result of cross-linking.

Conclusion

Advertisements targeting children and youth do not generally constitute unfair competition according to No. 28 of the “black list”, but can so under certain circumstances. Companies are advised to pay heightened attention to their advertising measures directed at consumers under 18 years of age, in particular with regard to the formulation of the purchase solicitation – and in cases of doubt, to obtain the advice of a lawyer without delay.