Legal Considerations in Children’s Advertising

by Greg Sater on Sep 21, 2015 8:30:00 PM Advocacy, DRTV

You may know the rules of the road for consumer product advertising. But did you know that special guidelines apply to ads directed to children under the age of 12? And did you know that if your ads fall into that category, you can be challenged by a self-regulatory body of the Better Business Bureau known as the Children’s Advertising Review Unit (CARU)?

Similar to the Electronic Retailing Self-Regulation Program (ERSP), CARU reviews ads including television spots airing during children’s programming. If CARU believes your ad violates its guidelines (see www.caru.org), the unit will give you an opportunity to respond, and then issue a public decision. CARU may ask that you stop running your ad. If you decline to respond or refuse to comply, CARU can report you to the FTC.

CARU uses a multifactor test to determine if an ad is “primarily directed to children under 12,” including whether it appears during programming directed to kids. The target consumer is something that sometimes comes into dispute, as it was in a case involving a spot for WhoNu? cookies (CARU Case No. 5,520). The advertiser claimed its target audience consisted of moms, not kids, and that its agency issued the spot to networks that could reach moms and left the decision when to run it up to the networks. Nevertheless, CARU ruled that the ad was within its jurisdiction because it aired during Batman Beyond at 11:30 a.m. and Team Umizoomi at 3:00 p.m., and the majority of the other ads appearing during the shows promoted toys, cereals, and snacks.

Why did this matter? Because, CARU said, while the spot likely wouldn’t deceive adults, it might deceive children. The spot showed the cookies with a voiceover that says, “With as much fiber as a bowl of oatmeal.” The statement is true—WhoNu? cookies do have as much fiber as a bowl of oatmeal. But in CARU’s opinion, children could draw the erroneous conclusion that eating WhoNu? cookies would be equally as good for them, in all aspects, as eating a bowl of oatmeal.

CARU’s published decisions state repeatedly that when children see ads, they can often take away very different messages than adults. CARU’s guidelines state: “Advertisers have special responsibilities when advertising to children. They should take into account the limited knowledge, experience, sophistication, and maturity of the audience to which the message is directed. They should recognize that younger children have a limited capacity to evaluate the credibility of information, may not understand the persuasive intent of advertising, and may not even understand that they are being subjected to advertising. Advertising should not stimulate children’s unreasonable expectations about product quality or performance.”

These principles are reiterated in a recent case involving Reebok and its Zigtech sneakers. (CARU Case No. 5,328). Appearing in Sports Illustrated Kids, Reebok’s print ad showed the shoe with an image of a kid jumping to catch a football. It said, “Try the shoe with the energy boost. Its unique zig-zag shaped sole propels you forward with every step.”

In CARU’s opinion, children reasonably could conclude from this that Reebok sneakers will help them perform better in sports by jumping higher or running faster. That, of course, was not something Reebok could substantiate. The company had testing that apparently showed a more efficient “energy return” to the foot compared to a typical shoe, but that wasn’t good enough for CARU, which said:  

“Copy, sound, and visual presentations should not mislead children about product or performance characteristics. Such characteristics may include speed, method of operation, color, sound, [and] durability. The presentation should not mislead children about benefits from use of the product. Such benefits may include the acquisition of strength, status, popularity, growth, proficiency, and intelligence.”

Another case (CARU Case No. 5,654) involved a TV spot for a toy helicopter called the Switch & Go, which first showed the product flying through a forest setting without the assistance of a hand, then flying with a hand that was barely visible, and finally, landing unassisted. CARU concluded that children under 12 might think that the toy could fly on its own, even though adults might never draw that conclusion. In Case No. 4,506, CARU considered a print ad for a baseball batting practice tool called the Hit-A-Way Derek Jeter Series that showed a boy dressed in a pinstripe uniform swinging a bat and looking into the distance at a ball he had just hit. Above him were the words “I can hit like Derek Jeter!” with a thought bubble containing an image of the Yankees shortstop in a similar uniform. Over the objections of the advertiser, CARU concluded that the ad “would lead a child to believe that by purchasing this product he will be able to hit baseballs like Mr. Jeter in a real-life game situation.”

Adults would usually take claims like these with a grain of salt, but children’s limited knowledge and experience create a different standard for advertising. If you run ads during kids’ programming, you should consult qualified legal counsel regarding the legal guidelines that may apply to your campaigns.

Gregory J. Sater is a partner in the advertising, marketing, and new media practice at Venable LLP. He can be contacted at (202) 344-4860.

The above post was adapted from a “Law & Orders” column published in the July 2014 issue of ER magazine.

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