Advertising to Children
Reed Smith Hall Dickler

1. Advertising to Children

1.1 Legal/Regulatory Framework

1.1.1 General Principles

There is little actual legislation regarding advertising directed toward children. This area is largely self-regulated. A set of principles and guidelines (found at www.caru.org) have been established by the Children's Advertising Review Unit (CARU) a division of the Council of Better Business Bureaus to assist advertisers in this self-regulatory process. CARU primarily acts as a review unit to evaluate advertising that does not serve these principles. CARU seeks the voluntary cooperation of advertisers to make changes in advertisements that do not follow the principles. In cases where advertisers refuse to voluntarily cooperate, the CARU turns the matter over to the FTC who is the legal authority in such matters.

The CARU principles are the following:

1. Advertisers should always take into account the level of knowledge, sophistication and maturity of the audience to which their message is primarily directed. Younger children have a limited capacity for evaluating the credibility of information they receive. They also may lack the ability to understand the nature of the information they provide. Advertisers, therefore, have a special responsibility to protect children from their own susceptibilities.

2. Realizing that children are imaginative and that make-believe play constitutes an important part of the growing up process, advertisers should exercise care not to exploit unfairly the imaginative quality of children. Advertising should not stimulate unreasonable expectations of product quality or performance either directly or indirectly.

3. Recognizing that advertising may play an important part in educating the child, advertisers should communicate information in a truthful and accurate manner and in language understandable to young children with full recognition that the child may learn practices from advertising which can affect his or her health and well-being.

4. Advertisers are urged to capitalize on the potential of advertising to influence behavior by developing advertising that, wherever possible, addresses itself to positive and beneficial social behavior, such as friendship, kindness, honesty, justice, generosity and respect for others.

5. Care should be taken to incorporate minority and other groups in advertisements in order to present positive and pro-social roles and role models wherever possible. Social stereotyping and appeals to prejudice should be avoided.

6. Although many influences affect a child's personal and social development, it remains the prime responsibility of the parents to provide guidance for children. Advertisers should contribute to this parent-child relationship in a constructive manner.

The individual television networks (ABC, NBC, FOX, CBS) and some cable networks also provide advertisers with a set of standards and practices which advertisers must adhere to if they want their commercials to air on their stations. As part of each networks standards guidelines, a section is devoted to advertising geared towards children. Many of the networks standards and practices guidelines directly reflect the CARU principles.

1.1.2 Specific Products: With the exception of tobacco, alcohol and pay-per-call numbers, CARU and Television Network Advertising Standards and Guidelines govern the advertising to children of the products described below.

a) Tobacco: None can be geared towards children.

b) Alcohol: None can be geared towards children.

c) Toys: Advertising of toys is subject to the CARU Principles in the same way as any other product. The television network standards and guidelines also call special attention to how toys can be advertised. Among these additional specifications is a mandatory still at the end of the commercial that displays the toy being advertised with a clear, straightforward voice-over.

d) Medicines: Advertisements for medicines and/or vitamins cannot be directed at children nor scheduled during children's television programming.

e) Food: According to television network standards guidelines, food advertising should represent products that are in line with "good eating and nutritional habits." Any television advertisement for a breakfast-type product must establish that products relevance within the context of a balanced meal.

f) Dangerous Products: Dangerous products or products that contain a warning label for children cannot be advertised towards children nor during children's television programming.

g) Health/Beauty Products: Follow all above CARU principles.

h) Other: According to a prohibition by the Federal Trade Commission, pay-per-call services cannot be directed at children under 12, unless the call is for a "bona fide educational service" The same goes for 900-number services per section (FTC) 308.3 (d)(I) of the Rule Pursuant to the Telephone Disclosure and Dispute Resolution Act of 1992.

1.1.3 Leading Precedents

1.1.4 Ways of Advertising

Unless otherwise specified all "ways" of advertising are subject to the self-regulating CARU principles.

i) Direct Marketing

j) TV/Radio: As spelled out in the CARU principles and Network Standards and Practices

k) Internet: CARU and the Children's Online Privacy Protection Act of 1998 15 U.S.C. 6501 et. seq. require verified parental consent when sites:

• Permit children under age 13 to post messages containing personally identifiable information about themselves;

• Enable third parties to directly contact children (e.g. chat rooms, bulletin boards and key pal club sites);

• Collect offline contact information directly from children;

• or share personally identifiable information collected about children with third parties.

l) Lotteries/games: Lotteries can only be run by the state and are only open to those 18 years of age or older. Promotions and sweepstakes are subject to the same state and federal laws that govern all games of chance, however, special care should be taken according to CARU with games of chance specifically targeted towards children. This includes clear disclosure of prizes and odds of winning including, where necessary using words such as, "many will enter, few will win," in advertising of any game of chance.

m) Sponsorship

n) Premises

o) Magazines

p) Other

1.1.5 Leading precedents regarding the above:

2 Advertising of Specific Products Destined For Children By Use of Characters

2.1 Cartoons and similar characters

Cartoon characters, etc. can be used to advertise products towards children barring that the character does not appear in an advertisement during or adjacent to programming in which that character appears.

2.2 Famous Persons

2.2.1 Advertising of services or products to children by use of famous persons

From the CARU guidelines, "All personal endorsements should reflect the actual experiences and beliefs of the endorser. Celebrities and real-life authority figures may be used as product endorsers, presenters, or testifiers. However, extra care should be taken to avoid creating any false impression that the use of the product enhanced the celebrity's performance."

The network standards and guidelines each in their own variation take in one step further by not accepting advertisements featuring celebrities who are "identified through their profession or character with the product or service (e.g., an athlete may not be used as a product presenter for a line of athletic equipment)."

2.3 Children

2.3.1 Advertising of products or services by the use of children

To adults

a) There is no written standard or guideline pertaining to the issue of children being represented in commercials. Television networks evaluate television advertisements on a case-by-case basis from the standpoint of good taste and decency. It is a very subjective process.

2.3.2 To children

a) According to television network standards and guidelines, children cannot be seen in dangerous situations, e.g. standing next to a hot stove unsupervised, or taking vitamins/health supplements.

b) The FTC prohibits advertising that has the tendency or capacity to induce behavior, which is harmful or involves an unreasonable risk of harm to children. See In the Matter of Mego Int'l, Inc., 92 F.T.C. 186 (1978), In the Matter of General Foods Corp., 86 F.T.C. 831 (1975).

2.4 Controls of use of children in advertising

Children's labor laws as they pertain to the entertainment business are controlled by the individual states where a child is employed. The state of California has the toughest and most comprehensive laws that include limited hours of employment, which varies according to the age of the minor, as well as laws requiring hours of education and recreation. The State of California requires that all minors be issued a work permit by the Labor Commissioner [LC 1308.5; 8 CCR 11751(b), 11752, 11753, 11754]. Several other states are introducing legislation to protect children engaged in the entertainment business; among those with pending legislation are Iowa, Kansas, North Carolina, Arizona and Texas. For those productions working with a Screen Actor's Guild (SAG) "basic contract" there are similar protections set forth for children based on the California laws [LC 1308.7, 1392; 3 CCR 11764; 8 CCR 11756, 11759, 11760, 11763].