French ISP Restores a "Free" Internet for Advertisers

On Monday, the French Internet service provider, Free, reneged on its original decision to place a default ad-blocking filter on its customers’ routers after receiving pressure from advertisers and the French government. To learn more about this story, read the latest post on our Advertising Compliance blog, ReACTS.

European Mobile Operators Back App Privacy Guidelines

On February, 27 2012, with the support of Europe’s largest mobile operators, the GSMA published a set of global Privacy Design Guidelines for Mobile Application Development. These guidelines come just days after the largest US based app providers, including Google, Apple and Amazon, agreed to legally enforceable privacy standards. 

Learn more by visiting our sister blog, Global Regulatory Enforcement Law Blog.

Google vs. the World (and the EU, too.)

If you thought Google created controversy in the United States over its privacy policy change, you should read what Europe thinks about it. It appears the EU dislikes it even more than many U.S. pundits have opined. For the complete report from our Global Regulatory Enforcement Group, see their latest blog post.

Advertisers Push ICANN to Drop New gTLD Proposal

Reed Smith partner and ANA General Counsel Doug Wood said in an interview with the National Journal that if ICANN fails to respond to the ANA’s concerns, it may be forced to sue to block the proposal. “If they choose to ignore us, which I hope they don’t, then we will have no choice but to litigate,” he said, adding that this would only be a last resort. According to Wood, ICANN’s current proposal for gTLD registration could cost companies as much as $2 million a year per trademark. The full text of the National Journal’s interview with Doug Wood and ANA President, Bob Liodice can be found here.

Privacy Challenges in Marketing Practices European (over)ruling of the use of personal data?

This post was written by Avv. Felix Hofer.

Multinational companies planning to target EU consumers with sophisticated marketing techniques may easily find themselves on a marshy ground, if they do not deserve sufficient attention to European privacy laws. Costumer profiling, monitoring and categorizing offers essential information for crucial business decisions, but have also to comply with restrictions and prescription likely to result a lot stricter than those non-European companies may be familiar with. Find in the following article a summarizing picture of what to worry about when marketing strategies are meant to cross the Ocean and to reach out to Europe.

For Privacy, European Commission Must Be Innovative

This blog post is republished by permission of the Center for Democracy and Technology where it first appeared.

This post is part of "CDT Fellows Focus," a series that presents the views of notable experts on tech policy issues. This month, CDT Fellow Omer Tene writes about the consultation launched by the European Commission to update the European Union Data Protection Directive. Posts featured in "CDT Fellows Focus" don't necessarily reflect the views of CDT; the goal of the series is to present diverse, well-informed views on significant tech policy issues.

In a way, the process undertaken by the European Commission to review the current framework applicable to privacy and data protection is akin to speeding on a highway at 100 mph while looking at the rearview mirror. The consultation launched by the EC and comments filed by some of the main players (see, e.g., here and here) are strongly anchored in the text of the EU Data Protection Directive ("EU DPD"), enacted in 1995, negotiated several years before then, and based on documents dating back to the late 1970s. That was the era of mainframe computers and punched cards; long before PCs, the Internet, and mobile, not to mention cloud services, ubiquitous computing, smart grid, genetics and biometrics.

Building on acquired knowledge and proceeding with care in small increments is firmly rooted in legal culture. Ours is a discipline based on precedent and cautious tweaking of existing texts. Torts, contracts, and even public law today are strikingly similar to those in Roman times or ancient Jewish law. Yet given the scope and pace of technological innovation over the past 40 years and its massive impact on the collection, storage and use of personal information, it seems that an innovative mindset is needed to overcome some of the shortcomings of the current framework.

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UK Data Privacy Development

As data privacy heats up on this side of the pond, last week the UK government announced a package of measures focused on extending the scope of the Freedom of Information Act (FOIA) and strengthening the independence of the UK’s data protection and freedom of information regulator, the Information Commissioner’s Office (ICO).

The anticipated Freedom Bill (to be published in February 2011) will include proposals to extend the scope of FOIA to a number of organisations for the first time. The Government announced the definite inclusion of the Financial Ombudsman Service and has proposed including The Advertising Standards Authority, The Panel on Takeovers and Mergers, The Law Society, Bar Council and other approved regulators under the Legal Services Act 2007, subject to consultation.

Reed Smith's entire alert on this development, written by Nick Tyler and Cynthia O'Donoghue, can be accessed here.

New Copyright Law in Chile

This post was written by Andrés Grunewaldt

On the World Intellectual Property day, we want to share the following information with you:

After a long and intense congressional debate that began in 2007, the Chilean government has announced the promulgation of a law amending important and sensitive subjects covered in our current Intellectual Property Law No. 17,336.

The changes that will soon go into effect can be divided into three groups: the establishment of a new framework of exceptions and limitations to copyright and related rights, the incorporation of new offences, increased penalties and the consecration of new tools intended to prosecute crimes against intellectual property, and an extensive chapter on the liability of Internet Service Providers (ISP).

With regards to the first group, the amendment seeks to find a balance between the rights of the owners of the works and the right of public access to them, increasing the range of exceptions. For example, extending the framework of action for libraries and nonprofit archives in terms of the reproduction, translation and digitization of a particular work allows for it to be used for criticism, illustration, teaching or research purposes and also expands the use of works that aim to benefit a person with visual or hearing impairment.

Regarding IP crimes, it establishes a new framework of civil and criminal penalties for copyright violations by introducing new mechanisms and tools of procedure for cases of use outside the legal framework, especially in cases of piracy, increasing prison sentences and fines, which in the case of repetition can reach up to US 140,000.

Lastly, an extremely important chapter is concerned with regulating the liability of internet service providers, where content is present in a web page that infringes on intellectual property. In this case, after many discussions, the system that was opted for was one in which only under a court order will it be possible to block a website. In addition, the ISP must meet certain requirements in order to be exempted from liability for illegal content that customers are able to put on to the Internet.

In short, this is the most serious reform that Intellectual Property Law has undergone since its publication in 1970; creating a completely new scenario from hereon out in terms of copyright protection.

Andrés Grunewaldt
Senior Associate
T (56 2) 445 6000
agrunewaldt@az.cl

Political Advertising - Legal, decent, honest and truthful?

It's our pleasure to provide you with an article written by Marina Palomba, former Legal Director of the Institute of Practitioners in Advertising, and now a partner in our (Reed Smith's) London office, which focuses on advertising law and regulation as it pertains to policial campaigns in the United Kingdom. Marina's article was first published in Media Lawyer on April 13, 2010. Read the entire article entitled, "Political Advertising – Legal, Decent, Honest and Truthful?", and if you need legal guidance or representation, don’t hesitate to contact Marina Palomba in our London office or Adam Snukal in New York.

Finnair's Eco Ad Has Its Wings Clipped

This post was written by Alun J. Jones and John P. Feldman.

On January 6, 2010, the UK's advertising watchdog, the Advertising Standards Authority (the ASA), issued a decision upholding complaints it received against a poster that promoted the Finnish airline, Finnair. The poster featured an image of an Airbus flying above Finland's coastline and stated, "Be eco-smart. Choose Finnair's brand new fleet."

Finnair supported its statement on the basis that it had a new fleet of planes and it structured its flight routes with an eye toward increasing fuel efficiency. The ASA did not find that support very compelling. ASA decided that readers were likely to interpret "eco-smart" as analogous to "environmentally friendly," implying that flying Finnair would have little or no detrimental effect on the environment. Furthermore, the ASA required robust substantiation for the fuel efficiency claims beyond Finnair's emissions data. ASA even questioned whether the ad was clear enough in defining the nature of the comparison: Was Finnair comparing its old fleet with its new fleet, or its new fleet with other airlines?

That general environmental claims lead to serious headaches at the ASA is nothing new. Consider the ASA's September 2009 decision upholding complaints against the Malaysian Palm Oil Council's "Palm Oil-The Green Answer" article. But, how specific do you need to go in order to be clear of a "general environmental claim"?

In a decision involving the carrier EasyJet, the ASA reviewed the claim "Because we operate Europe's most modern fleet, our planes emit 30% fewer emissions per passenger mile than traditional airlines. So you can enjoy your holiday safe in the knowledge you'll have done more for the environment than Gordon's taxes ever could." Similar to the Finnair ad, to be sure, but in the case of EasyJet, ASA held that the ad did not mislead consumers into believing that traveling with EasyJet was environmentally friendly. According to ASA, consumers were likely to understand that all airlines would cause environmental damage. There had also been a great deal of press regarding the doubling of Air Passenger Duty by the British government, and the advertisement would likely be read in that context. However, EasyJet based its calculations for the "30% fewer emissions" claim primarily on the number of passengers they could carry in their planes. Because they could carry more passengers than most other airlines, it followed, according to EasyJet, that the CO2 emissions per passenger were 30 percent less. There was no evidence that supported the claim that EasyJet's younger planes had 30 percent fewer emissions per passenger mile. Thus, ASA found the ad to be partially substantiated and partially in breach of the CAP Code.

That ASA hates open-ended, general environmental claims is clear. But, it is too easy to conclude that "green" claims are impossible for industries that are inherently big contributors to greenhouse gases. As the EasyJet decision shows, careful casting of the claim can make a world of difference. In another example, ASA accepted the substantiation of EDF Energy, which promoted itself in conjunction with "Green Britain Day," using the advertising line, "Brought to you by EDF Energy, sustainability partner of London 2012." Even though this advertisement produced far greater public outcry than the Finnair advertisement (149 complaints versus 4), ASA found the promotional line to be permissible.

Why This Matters

Specificity and clarity is the key. All of the relevant guidance in the UK on environmental marketing – the CAP Code, the ICC Code, Clearcast Guidance and DEFRA's Green Claims Code, all of which are informed by the ISO's standard 14021 – make it very difficult to use broad, general "green" claims. Linking vague descriptions, such as "friendly" or "kind" with words such as "eco," "ozone" and "nature," is to be avoided according to the Codes, as is the use of terms such as "sustainable," "green" or "non-polluting." This is in line with the detailed guidance given on the use of some specific terms, such as "biodegradable" and "recyclable" by ISO 14021. 

So, why did Finnair fail when EasyJet flew (in part)? Finnair's use of "eco-smart" was probably just too general and too vulnerable to multiple interpretations. Somewhat ironically, if Finnair had been more comparative in its advertising, comparing the age of its fleet with that of other airlines, and drawing a direct environmental benefit claim from that fact, ASA might have been less critical. The more hard-hitting but specific claim could have given Finnair the cover, whereas the general "eco-smart" claim did not. We often see comparative claims given more leeway than absolute environmental benefit claims, which can be misinterpreted as communicating a greater "green" message than may be intended. And, finally, as the EasyJet and EDF Energy cases suggest, placing an environmental message into a context that touches on current affairs can help to demonstrate that the public is cognizant of the limited environmental message.

Arms' War in Italy: Aggressive Marketers Versus Privacy Watchdog

This post was written by Avv. Felix Hofer, and first appeared in Volume V of the Gala Gazette.

1. Implementing both, EU Directive 2002/58/EC of July 12th, 2002 (Directive on privacy and electronic communications) as well as Directive 2000/31/EC of June 8th, 2000 (Directive on electronic commerce) the Italian legislator decided that unsolicited commercial communication must always to adopt a strictly “opt-in” approach. The choice clearly didn’t drive marketers into a state of happiness: they felt that their business was unnecessarily harassed by complex and costly burdens. Therefore they decided initially not to care too much about the requirements set by the new regulations and to continue in their proven aggressive marketing techniques.

In doing so they nevertheless had underestimated a couple of factors: on one hand, consumers’ reaction (who became more and more annoyed by SPAM and behavioural targeting and were no longer tolerant of disturbing intrusions into their sphere of personal intimacy), on the other hand, the role of a Special Authority (the Privacy or Information Commissioner - DPA) in charge – in all countries members to the EU - of supervising proper compliance with the key principles of protection of personal data (and quickly focusing on the purpose of achieving a correct balance between consumers’ privacy and electronic marketing.
 

Click here to read the full article as published in Volume V of the Gala Gazette.

Advertising and Online Music: An Overview

This post was written by Laura Hicks.

This article was previously published in Media & Marketing Online.

It is no secret that the consumer habits for accessing and consuming music are changing incredibly quickly. In December 2009, radio audience measurement body Rajar revealed that 4.5 million people in the UK regularly use personalised online radio services, an increase of 1.6 million from October 2008. These figures reflect the explosive growth in online music consumption over the past year and highlight the potential gains to be made by advertisers who target the ad-supported music services sector. In this article, we will look at some of the major online music services and then outline key developments and opportunities to be aware of when considering this new market proposition.

The most successful online music service providers (both in terms of subscriber numbers and press coverage) rely at least partly on advertising to help cover the significant operational cost of obtaining the licences necessary to make premium content available to the public. Last.fm is the largest, with over 30 million users. The service, part ad-funded and part subscription funded, differentiates itself with its “scrobbling” system, which recommends songs to users based on their musical taste. Users can also engage with the Last.fm community through the site’s social networking features or create custom radio stations and playlists from the Last.fm music library. Spotify’s service has turned column inches into subscriber numbers, boasting an ad-supported streaming service with over 6 million users, around half of whom are in the UK. It comprises both Spotify Free, with commercial breaks, and Spotify Premium, which is ad-free. And We7, with over 2.5 million users and 4 million tracks available for streaming in the UK is a predominantly ad-based service. Each time a user plays a track the site has four opportunities to show an advertisement targeted at the user.

Until these newer services offered a legitimate alternative to illegal peer to peer file sharing networks, advertisers and brands were understandably cautious about being associated with online music sites. So, how should you make the most of the opportunities now available in the legal online music ecosystem?

The commercial value is obvious; the proliferation of personalised music services allows more effective and targeted advertising. Let’s take an example: If an advertiser wishes to sell trainers endorsed by, say, Jay-Z, they will wish to target fans of Jay-Z (and other similar artists). Personalised services provide a demographic identification service which is invaluable. If a sportswear brand wants to target fans of hip hop or other urban music, they can now do so, and better still, they can engage with them in ways not previously possible with traditional advertising.

Behavioural targeting uses information collected about an individual's online behaviour, such as the pages they have visited or the searches they have made, to select which advertisements to display to that individual. This helps advertisers deliver online advertisements to the users who are most likely to be influenced by them, thereby making campaigns more effective. Because of the individual nature of the information used to identify users, the law and regulations dealing with this kind of advertising are subject to constant review. For example, under European e-privacy law, it will soon be a requirement that a user’s consent is actively obtained before cookies are employed to identify user preferences.

Looking forward, the partnership between artists and brands will continue to strengthen and develop, with artists such as Mariah Carey already breaking new ground. Those who bought her most recent album in certain markets were given a copy of an Elle magazine special edition dedicated to the singer. This collaboration demonstrates the shift from traditional advertising where a celebrity is used to promote a brand; here, it was Elle that effectively promoted the singer.

As artists and brands become more aligned, businesses dedicated to helping brands connect with their consumers through music are prospering. Organisations like VerveLife, a digital music marketing organisation, have established new promotion and distribution channels for thousands of content publishers, such as artists, movie producers, television and game distributors. Companies like Starbucks, Toyota and Burger King have recently sought to reach a particular demographic by focusing on the music that potential consumers listen to.

Along with these emerging models, new legal issues have inevitably arisen. Many of these typically emanate from the existing contractual relationship between artist and recording label. Record labels are increasingly trying to capture the ancillary revenue streams of artists by negotiating 360 record deals which may in turn affect the ability of an artist to engage with a brand. It is also important to be aware of who owns what copyright in music, and what rights need to be cleared.

As the scope and popularity of online entertainment services grows and the level of user-interactivity develops, the online music sphere will continue to provide numerous opportunities for brands and advertisers to connect with music fans in an aspirational way. The new breed of legal online music services offer a dynamic platform for advertisers and brands to reach a targeted and valuable audience.

Advertising Fake Drugs May Result in Criminal Liabilities in China

This post was written by Michael Dardzinski.

The Supreme People’s Court and Supreme People’s Procuratorate on May 27, 2009 jointly issued “Interpretations on Several Issues Regarding the Application of Law on Criminal Cases Concerning the Production and/or Sale of Fake and Substandard Drugs” (“Interpretations”) to address the serious crimes of manufacturing and selling counterfeit and/or substandard pharmaceutical products in China. Pursuant to Article 5 of the Interpretations, individuals or companies are considered liable as accomplices for the crimes of creating, manufacturing or selling fake and/or substandard drugs if they know or should have known that the drugs are fake and/or substandard.

There has been extensive media coverage of complaints from the general public against problematic products endorsed by celebrities. A high profile case in 2008 involved endorsements by several movie stars of milk products tainted with melamine. The Chinese government imposed severe penalties on the milk manufacturer, including the imprisonment of its executives which led, in part, to the company’s bankruptcy. However, celebrities that endorsed these milk products were not subject to penalties, due to the lack of any clear legal foundation for litigation. The Interpretations require celebrities and other potential endorsers of medical products to exercise more care when choosing whether to support a particular product.

(In)Game Advertising: The European Perspective on Related Legal Problems

This post was written by Avv. Felix Hofer.

1. When I came around 'game advertising' for the first time my attitude as a lawyer, not necessarily familiar with what I – snobbishly – considered as basically being “kid's or nerds' stuff”, was obviously extremely skeptic. Running more and more frequently into articles published on the topic, I very soon had to realize that this was already a definitely “hot” topic to a number of industry sectors, involving an incredible amount of investment as well as offering truly exciting business perspectives.

According to an interesting US study, published in June 2007 on in-game ad spending targeted to digital homes in the period 2006–2012, companies had already invested 370 mln. of USD and were expected to increase such figure up to 2.051 mln. USD in year 2012.

Fairly impressed by the forecast exposed in the US study I got curious about how feelings would be in Europe about potential business development with respect to the specific area. Again surprise, surprise: according to a study performed on behalf of the EU Commission total revenues from on-line content sales will reach 8,3 bln. on Euro by 2010 (at an increase rate of a growth of over 400% in five years!) and on-line games will contribute with a significant share to that quite remarkable pie. In Fall 2007 another study showed that the Internet had already become the most popular communication tool among youngsters aged between 16 and 24; in the specific target group 82% affirmed to go on-line at least 5 days per week for entertainment and information purposes, while 46% declared that they preferred the Internet over (and used it more than) TV.

With the final blow I was provided when I had to realize that 9,8 bln. Euro had been spent for game consoles only during the 2007 Christmas period, that even traditional community venues (as sports arenas, shopping centers) were arranging specific gaming areas and organizing new entertainment events (e. g. “disc burn” sessions) attractive for gamers, that digital platforms did score important come-backs for popular past-time games and that in France the gaming sector had surpassed the entertainment industry for the first time in annual revenues.

Click here to learn more.

Italy: The Use of a Person's Image

This post was written by Avv. Felix Hofer.

1. The general principle is that the use of a person's image without his/her consent is basically prohibited (this even more if such use is performed for marketing or – in general - commercial purposes). In Italy the right on a person's image is governed both by the Civil Code and the Intellectual Property Act (Law no. 633 dated April 22nd, 1941, amended and integrated in the following).

(i) According to Section 10 of the Italian Civil Code the image of a person, or of his/her parent, spouse, or child can be exhibited or published only if such use is explicitly permitted by law and provided that the use does not cause prejudice to the dignity or reputation of the person represented.

Should abuse occur (save for the cases in which the use performed results in a criminal offense), a local (civil) Court can order termination of the abuse and award damages.

(ii) The local Intellectual Property Act contains additional provisions on the use of a person's image.

(ii.a.) A person's image MAY NOT be exhibited, reproduced or put on sale without his/her consent (so Section 96 of Law n° 633 dated April 22nd, 1941).
(ii.b.) Exceptions to this basic provision (i. e. use without consent) are allowed if the reproduction of a person's image is justified by his/her notoriety (see Section 97) and by a public interest (e. g. for purposes of information to the general public).
(ii.c.) Finally, a person's image may not be exhibited or put on sale if such use causes prejudice to the represented person's honour, dignity or reputation (Section 97 of the Intellectual Property Act). 

Click here to learn more. 

The Pirate Bay trial - the Swedish verdict

This post was written by Gregor Pryor and Elisabeth Hoffnell.

On 17 April 2009, the four men behind the popular Pirate Bay website were found guilty of copyright infringement and sentenced to one year imprisonment and payment of a fine of SEK 30 million (£2.4 million).

The defendants include the site's operators Fredik Neij, Gottfrid Svartholm Warg and Peter Sunde Kolmisoppi. The prosecutor also charged the Swedish millionaire Carl Lundström, who has donated money to the organisation and has helped configure larger numbers of computers to host the site. The defendants have run The Pirate Bay since 2004 after it was set up a year earlier by the Swedish anti-copyright organisation "the Piracy Agency".

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Israel's Anti-Spam Legislation with a Kick - This Could Cost You!!

This post was written by Benjamin Waltuch, Adv.

Worldwide Anti-Spam legislation is now more than six years old. However, the amount of spam that we all receive daily continues to grow despite the installation of spam blocking software. The Israeli Knesset has approved an “Opt-In” anti spam statute in its communication law which was modeled after European Union’s Directive 2002/58/EC and requires affirmative permission before a commercial message is allowed. This is much more extreme than the CAN-SPAM Act in the US, which requires that a sender must provide a method to be removed from the mailing list or an “Opt-Out” method but does not require specific affirmative permission.

The “kick” is that the Israeli Anti-Spam Law provides for a minimum liquidated civil damage amount of approximately US$250 (one thousand New Israeli Shekels) PER EMAIL without any necessity to prove that the recipient was damaged in any way by the email. The law allows for a recipient to sue the sender in small claims court and also amended the Israeli class action law to allow for a cause of action under this anti spam statute to be certified for class actions. In addition, the statute provides for criminal fines of approximately $50,000 for sending emails without consent and approximately $17,000 for emails that do not follow the procedural requirements spelled out below. Finally, the law states that the individuals who comprise the management of a company are considered liable for any violation of the law with the civil penalty of approximately $17,000. Upon violation of the law by a company, it is presumed that the members of management of that company have not fulfilled their duty to keep the law.

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Ofcom delivers blow to Domino's Pizza's sponsorship of "The Simpsons"

This post was written by Milan Joshi and Carolyn E. Pepper.

Sky One, a UK satellite channel that broadcasts "The Simpsons," has been told that the sponsorship of the programme by Domino's Pizza, a leading UK pizza delivery company, breaches sponsorship rules, despite the fact that no products that were high in fat, salt or sugar (HFSS) were shown in the credits.

Ofcom, the UK media watchdog, published rules in February 2007 concerning advertisements of HFSS foods to under-16s.

The National Heart Forum (NHF), an alliance of more than 60 UK organisations working to reduce the risk of coronary heart disease and related conditions, contacted Ofcom regarding Domino's Pizza's sponsorship of "The Simpsons." The NHF complained that Domino's Pizza "appears to be avoiding the restriction on HFSS advertising or sponsorship by simply not showing the pizza product during the sponsor's credits around the programme."

In response to the complaint, Ofcom requested a recording of "The Simpsons" from Jan. 30, 2008. This consisted of four recordings, back-to-back, between 19:00 and 21:00, with each episode containing four sponsorship credits. The credits featured one or more of the following - at least one person involved in the pizza order/delivery process, the sponsor's pizza packaging, the pizza case preparation and the sprinkling of pizza topping ingredients. The closing image contained the Domino's Pizza logo and the words "Domino's Delivery Service," followed by the website details and order telephone number. Each credit ended with a voice-over stating: "'The Simpsons' on Sky One with Domino's - the pizza delivery experts."

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Canadian Government Bans BPA Baby Bottles

The Canadian government has announced it will ban the use of bisphenol A (BPA) in baby bottles, becoming the first government worldwide to take such action. The government immediately will begin drafting regulations to ban the importation, sale and advertising of baby bottles that contain the controversial chemical.

The government's confirmation of the BPA baby bottle ban follows an announcement last year in which the Canadian government warned of its intentions.

"Today's confirmation of our ban on BPA in baby bottles proves that our government did the right thing in taking action to protect the health and environment for all Canadians," stated Canada's Environment Minister John Baird.

The government conceded that according to its scientific assessments, BPA exposure experienced by newborns and infants is below levels likely to cause health effects. "[H]owever, due to the uncertainty raised in some studies relating to the potential effects of low levels of bisphenol A, the Government of Canada is taking action to enhance the protection of infants and young children," the government stated in a release.

The main sources of exposure to BPA among babies is thought to be from bottles containing BPA, which can leach some of the chemical, particularly when they are heated, and infant formula cans with BPA-containing liners.

The Canadian government's decision comes shortly after an arm of the U.S. National Institutes of Health (NIH) concluded that there is "some concern" that exposure to BPA can adversely affect the development of fetuses and young children. The U.S. Food and Drug Administration, however, has determined to the contrary that there is not sufficient evidence to justify tightening BPA-related regulations.

The Grocery Manufacturers Association called the Canadian government's decision "disproportional to the risk determined by public health agencies." The food and beverage industry "will continue to evaluate the safety of BPA for infants [and] children," the group stated.

Read about the Canadian government's decision at hc-sc.gc.ca.

Read the Grocery Manufacturer Association's response at gmabrands.com. 

Read about the report on BPA issued by the National Toxicology Program of the NIH at niehs.nih.gov. 

View the FDA's draft report at fda.gov. 

Read more news coverage on the issue at ctv.ca and apnews.excite.com

Halloween Candy Recall Cites Melamine Contamination Risk

The melamine nightmare appears to have arrived in North American in time for Halloween. The Canadian government has issued a recall of Pirate's Gold Milk Chocolate Coins, distributed by Sherwood Brands and sold by Costco.

The U.S. Consumer Product Safety Commission has issued no similar recall.

"This product is being recalled due to positive test results for melamine," stated the Canadian Food Inspection Agency (CFIA). The Gold Coins were sold nationally through Costco, and also may have been sold in bulk packages individually at other dollar and bulk stores, the CFIA warned.

Melamine is the chemical linked with children's deaths and illnesses following contamination of milk and milk products in China, as well as pet deaths and illnesses following contamination of pet food. Melamine is widely used for industrial purposes, but also can be used to spike food products to artificially inflate protein content.

In China, the melamine scare was ratcheted up even further by news that food inspectors found eggs contaminated with high levels of melamine. An estimated 50,000 children in China have been sickened from melamine contamination, and four reportedly have died.

Read about the Canadian recall at inspection.gc.ca.   

Read about the egg contamination in China at nytimes.com.

Children TV food ad restrictions not working, UK consumer body claims

This post was written by Carolyn E. Pepper and Tina Sany-Davies. 

OFCOM, the UK media regulator, published rules regarding advertising food and drink products to children.

A consumer watchdog in the UK, Which?, has said that the rules, which aim to curb advertising foods assessed as high in fat, salt and sugar ("HFSS") to children, are not working.

Which? conducted a two-week analysis and found adverts for products such as Coca-Cola, which reportedly contains 13 teaspoons of sugar per 500 ml, and Kellogg's Coco Pops, which is more than one-third sugar, were broadcast during programmes popular with children and were not caught by recent restrictions.

The OFCOM rules state that adverts for HFSS foods are not allowed to be shown in or around programmes of particular appeal to under-16s. If the proportion of those under 16 watching a programme is 20 percent higher than the general viewing population, then the programme is considered to be of particular appeal to under-16s.

Which? revealed through its report that none of the programmes with the five highest child audiences is covered by the restrictions imposed by OFCOM in January.

Therefore, while shows such as "The Simpsons" and "SpongeBob Square Pants" are caught by the rules, other shows such as "Beat The Star" and "Animals Do The Funniest Things" are not, despite being watched by thousands more children.

According to the two-week analysis conducted by Which?, "Animals Do The Funniest Things," a home video show where viewers send in amusing clips of their animals, was viewed by 370,600 children under 16, and included adverts for Cadbury's Creme Egg Twisted, Maryland Chocolate Chip Cookies, Nachos and Kraft's Dairylea Dunkers.

By contrast, "Shaggy and Scooby Doo get a clue" and "SpongeBob Square Pants", which are both caught by OFCOM's restrictions, did not have adverts for HFSS foods.

Which? food campaigner Clare Corbett said, "The ad restrictions may look good on paper but the reality is that the programmes most popular with children are slipping through the net. If these rules are going to be effective, then they have to apply to the programmes that children watch in the greatest numbers."

Chief executive of the Advertising Association, Baroness Peta Buscombe, called the Which? report "sensationalist, unconstructive and missing the point." She added, "Their list includes programmes clearly not aimed at children and films screened after 10 p.m. There clearly has to be an element of parental responsibility on which programmes they allow their children to view."

A Department for Culture, Media and Sport spokesman said, "Although children still see some of these advertisements, the current OFCOM regulations mean that the viewing of these adverts by children is reduced by an estimated 50%, an impressive amount. We appreciate that there are calls for further restrictions on UK TV advertising but these should be considered once we have had a chance to assess the impact of current measures."

OFCOM is set to report on the success of its restrictions in December this year.

Environmental Marketing in Europe

This forum was written by Avv. Felix Hofer.

1. The European Approach

1.1. Up till now the Europe Union did not issue a set of harmonizing principles and rules meant to specifically govern 'environmental/green marketing'.

The main reason for such approach was not disinterest from the EU's institutional bodies towards the issue, but probably the conviction of being the traditional regulations on commercial communication perfectly suitable to cover this specific area in a sufficient and proper way.

In fact, these provisions had already established a number of basic principles requiring all commercial communication to:

  • not be misleading to the targeted public2,
  • be “readily recognizable as such and be distinguishable from editorial content” (and all surreptitious promotional messages to be explicitly banned)3,
  • not encourage behaviour grossly prejudicial to the protection of the environment4,
  • not to result in a misleading commercial practice5, a result that would occur any time:
    • «it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements..: (a)..the nature of the product, (b) its...main characteristics...such as its availability, benefits, risks, execution, composition, accessories, .. method and date of manufacture or provision, delivery, fitness for purpose, usage, .. or
      the results to be expected from its use»6,
    • «it omits material information that the average consumer needs, according to the context»7, where «information requirements established by Community law in relation to commercial communication including advertising or marketing, a non-exhaustive list of which is contained in Annex II, shall be regarded as material»8.

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Global Response to Chinese Tainted Milk Products

Concerns over Chinese exports again dominated the headlines following reports that four infants in China had died from formula made with milk contaminated with melamine. Some 53,000 children were sickened by contaminated milk products.

Melamine is the same chemical that earlier was found to have been mixed with pet foods linked with thousands of pet deaths in the United States, prompting massive pet food recalls. Melamine is used for industrial purposes such as leather tanning, coatings and laminates, wood adhesives, fabric coatings, ceiling tiles, and flame retardants.

Inspectors from the Chinese government found that more than 20 Chinese dairy farms and plants had diluted milk and added melamine so their products would appear to have higher protein levels. Eighteen people were arrested in connection with the scandal.

Following reports of the contamination, much of Asia, including Indonesia, the Philippines, Malaysia, Singapore, South Korea and Vietnam, banned the import of Chinese milk products. The scare spread from milk products to food products that contain milk powder and milk protein. The British supermarket chain Tesco reported that samples of White Rabbit Creamy Candies in New Zealand were found to have unacceptably high levels of melamine, and the chain removed the candies from its shelves worldwide.

While the EU does not import milk or other diary products from China, the EU barred imports of any products from China containing more than 15 percent milk powder.

In the United States, there have been no reports to date of contaminated milk products from China. The U.S. Food and Drug Administration focused its investigations on Asian food stores in areas with large Chinese communities, such as Los Angeles, San Francisco, Seattle and New York. "To date, investigators have visited more than 1,000 retail markets and have not found Chinese infant formula present on shelves in these markets," the FDA reported. The agency has broadened its search for other food items imported from China that may contain milk or milk proteins.

Read about the global reaction to the melamine contamination at nytimes.com, ap.google.com, cnn.com, and bloomberg.com.

Read about the EU's ban of products containing Chinese milk powder at news.bbc.com.uk.

Read about the FDA's investigation into the melamine contamination at fda.gov.

Read more about the issue at iht.com.

France Says 'Non' To Marketing of Kiddie TV

France's broadcast authority has forbidden French channels from promoting television shows aimed at children under 3 years old. In addition, cable operators that air foreign channels with programming for babies are required to broadcast warnings stating: "Watching television can slow the development of children under 3, even when it involves channels aimed specifically at them."

The new rules, issued by the High Audiovisual Council, are aimed at the introduction of foreign tot-devoted programming such as BabyFirstTV and Baby TV, both of which can be viewed via cable in France.

"Television viewing hurts the development of children under 3 years old and poses a certain number of risks, encouraging passivity, slow language acquisition, over-excitedness, troubles with sleep and concentration, as well as dependence on screens," the Council stated.

BabyFirstTV, launched in the United States in 2006, has ratcheted up the debate over TV programming for the very young. The American Academy of Pediatrics says babies should not be exposed to television at all. The Campaign for a Commercial-Free Childhood filed a complaint against BabyFirstTV with the Federal Trade Commission more than two years ago, accusing the channel of false and deceptive marketing. CCFC says it still is waiting for the FTC to rule on its complaint.

For its part, BabyFirstTV defended its product. "BabyFirstTV transforms traditional TV into an interactive and educational tool that relies on the television as a medium to deliver high-quality programming and an engaging experience for both baby and parents," the company said on its website.

Read about CCFC's response to the French marketing ban at commercialfreechildhood.org. 

Read what others have to say about the marketing ban at ecochildsplay.com. 

View BabyFirstTV's website at babyfirsttv.com.