Marketing to Children: An Excerpt from the Advertising Law Tool Kit

Join us as we spotlight select chapters of Venable’s popular Advertising Law Tool Kit, which helps marketing teams navigate the legal risk of campaigns and promotions. Click here to download the entire Tool Kit, and tune in to the Ad Law Tool Kit Show podcast, to hear the authors of this chapter dive deeper into the issue of Marketing to Children in this week’s episode.

When marketing to children under the age of 13, there are heightened requirements that go beyond standard truth in advertising and fair advertising practices. Both the Federal Trade Commission (FTC) and the Children’s Advertising Review Unit (CARU) of the Council of Better Business Bureaus (BBB) monitor and review advertising that targets children for unfair and deceptive practices. CARU sets forth specific guidelines for ads shown on children’s television, in children’s publications, and on websites with content directed to children. The basic idea behind these standards is that children have a difficult time understanding that they are being given a sales pitch and distinguishing between reality and fantasy. For these reasons, claims need to be narrowly tailored and very clear, in language children can understand, without preying on their potential vulnerability or naivete.

There is an additional self-regulatory group that is part of the BBB, the Children’s Food and Beverage Advertising Initiative. CFBAI participants voluntarily commit that they will not advertise foods and beverages to children under age 12 at all, or they will advertise only products that meet certain criteria. Both the FTC and CARU monitor and enforce compliance with the Children’s Online Privacy Protection Act (COPPA), which requires that marketers seeking to collect personally identifiable information (PII) from children under 13 must first obtain verifiable parental consent. Recently, however, laws like the California Consumer Privacy Act (CCPA) and the European General Data Protection Regulation (GDPR) have increased to 16 the age at which a company must notify users of its data collection practices and seek consent before collecting data from children and teenagers in those jurisdictions.

Moreover, the EU, the U.S. federal government, and the states have looked to age-appropriate design codes as a means of ensuring that children and teens are protected online. While federal efforts at passing a law stalled, and California’s new law has been challenged in litigation, other states have been considering bills, and new codes/guidelines have been released in the UK, Ireland, and France.

Here are some specific best practices related to children’s advertising:

• If a product or activity shown in an ad typically requires parental supervision, show adults actively monitoring the scene
• If there is a product shot, make it clear what comes with the initial purchase and what must be purchased separately
• If children are shown using the product or engaged in physical activity, show them wearing all necessary safety equipment and playing responsibly
• Depict product use realistically and avoid suggesting the product will make a child more popular or stronger
• If food products are shown, depict reasonable portions of healthy foods to encourage a healthy lifestyle
• If disclaimers are necessary, give them both in writing and orally
• When directing children to a phone number or website, state they should get their parents’ permission before calling or going online
• When advertising a sweepstakes, contest, or similar promotion, make clear the free means of entry and that “many will enter, few will win”
• If offering a free product, focus on the product rather than the giveaway
• Avoid calls to action, such as “act fast, buy now” or “ask your parents to call now,” that promote a false sense of urgency or could be viewed as too aggressive for a child audience
• Before collecting data from a child under age 13 (16 in California or the EU), follow procedures for parental notification and consent in COPPA, the CCPA, or the GDPR, as applicable
• Ads, apps, and games using in-app purchases must be clearly labeled as such and must not use unfair or deceptive tactics or social pressure; any methods provided to dismiss or exit an ad must be clear and conspicuous. If in‑app or in‑ad purchases are offered, it must be clear that the purchase involves real currency
• Advertising should be respectful of human dignity and diversity and should not portray or encourage negative social stereotyping, prejudice, or discrimination
• Advertising should not frighten or provoke anxiety in children, show or encourage inappropriate behavior (e.g., violence or sexuality), or knowingly link to inappropriate content

To learn about marketing to children, contact Melissa Steinman. For more insights into advertising law, bookmark our All About Advertising Law blog and subscribe to our monthly newsletter.