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Compliance Challenges When Directing Social Media, Advertising, and Other Marketing Campaigns to Children

Traditional tenets of advertising law affording marketers broad latitude in crafting campaigns do not apply when children are the intended audience.  Many marketing campaigns and tactics which would be lawful when directed to adults may be challenged when directed to children.  Companies marketing goods to young consumers confront a maze of regulations, multiple gatekeepers, and recent proposed amendments which seek to strengthen this already robust protocol.  Initiatives are now afoot to apply this regulatory scheme to all forms of social media directed to children.

The Gatekeepers

Whether launched in print, television, or over the Internet, campaigns directed to children are monitored by: regulators (at both federal and state levels), industry self-regulating organizations, and consumer groups.  The Federal Trade Commission is the primary agency charged with regulating and monitoring advertising; including advertising intended for children.  The FTC derives its authority from the FTC Act and has wide discretion to challenge marketing campaigns it deems unfair or deceptive in any regard.  Additionally, states have grown active in this arena by proposing laws to regulate marketing efforts directed to children.  Apart from governmental players, the industry’s self-regulating organization &mdash the Children’s Advertising Review Unit (CARU) of the Council of Better Business Bureaus, and consumer protection groups also seek to police such campaigns.  For example, a consumer watchdog group recently filed a complaint before the FTC against PepsiCo for allegedly “developing covert advertising campaigns” around video games, sports, and social networking.

Hot Button Areas

The FTC recently signaled a focus on examining marketing efforts directed to children relating to the advertising of food and online marketing, in general, and social media, in particular.  The statutes implicated by such enforcement efforts include the FTC Act, the Children’s Online Privacy Protection Act (COPPA) and the Telephone Disclosure and Dispute Resolution Act (TDDRA).

Nutritional Claims

The FTC has taken an acute interest in challenging nutritional claims for foods directed to children. Earlier this year, the FTC lead an interagency working group to formulate principles for the marketing of food to children.  This self-regulatory effort would include a range of limitations on any media campaign marketing food to children.  Specifically, the effort would seek to limit the advertising of foods which have a “negative impact on health or weight.”

Online Activities

COPPA applies to commercial websites directed to children. The key provisions of COPPA relate to whether the website collects any personally-identifiable information (e.g. names, addresses, email address, telephone number, social security number).  To avoid application of the law, it is generally recommended that a child-oriented website avoid extracting any personal information about any visitor to the website.  If COPPA applies, the website owner must include a privacy notice on the site and obtain verifiable parental consent before collecting any personal information from children.  The FTC has pursued a number of marketers for failing to take the proper steps to verify a parent’s consent.  The FTC is also seeking to broaden application of COPPA to address other emerging technologies.

On September 15, 2011, the FTC announced proposed amendments to COPPA to address mobile devices, social networking, and interactive gaming.  These rules would also restrict location gathering and behavior-targeted advertising.  Among other requirements, the parental consent protocol of COPPA would be required of all social media. The TDDRA separately prohibits directing advertisements for 900 numbers to children under the age of twelve.  The FTC likewise has launched efforts to scrutinize smart phone apps marketed to children.

Best Practices

Potential challenges by these gatekeepers can be addressed by following a number of sound principles, including:

  • disclosing all data collection efforts; including third-party efforts;
  • seeking parental consent for all data collection efforts;
  • avoiding the creation of unrealistic expectations of product quality or performance;
  • separating the advertising material from program content; and
  • developing and maintaining adequate substantiation for any objective claim made in the advertising (substantiating the claim for the first time after the fact is tantamount to making a false claim).

A clearance protocol addressing potential challenges, particularly in the areas of nutritional claims, online activities, and other social networking campaigns, will greatly aid marketers in securing compliance while achieving their business objectives.