( by Patrick Whalen ) B I G G E R | l a w

S M A R T S T R A T E G I E S

Advertising law generally gives marketers broad latitude in crafting

campaigns. But the rules are tighter when children are the intended audience. Many marketing campaigns and tactics that would be lawful when directed to adults may be troublesome when directed to children. Now there are efforts to apply this stronger regulation to all forms of social media directed to children.

The GatekeepersWhether in print, televi-

sion or over the Internet, campaignsdirected to children are monitored by state and federal regulators, industryself-regulating organizations andconsumer groups.

The Federal Trade Commission is the primary agency charged with regulating and monitoring advertising, including advertising intended for children. The FTC has wide discretion in challenging marketing campaigns it deems unfair or deceptive in any regard.

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 fi led a complaint before the FTC against PepsiCo for allegedly “developing covert advertising campaigns” around video games, sports and social networking.

VOL. 21 // ISSUE 1 // JANUARY 2012Reprinted with permission of Thinking Bigger Business Media, Inc. ©2012, all rights reserved.

Special rules apply when directing marketing efforts at children.

Nutritional ClaimsThe FTC has taken an acute interest in

challenging nutritional claims for foods directed to children, and earlier this year led an interagency working group to formulate principles for the marketing of

food to children. This self-regulatory effort would include a range of limita-tions on any media campaign market-ing food to children. Specifi cally, the effort would seek to

limit the advertising of foods which have a “negative impact on health or weight.”

Online ActivitiesThe Children’s Online Privacy Protec-

tion Act (COPPA) applies to commercial websites directed to children. The key provisions of COPPA relate to whether the website collects any personally-iden-tifi able information, such as name, ad-dress, e-mail address, telephone number, social security number, etc. Child-orient-ed websites should avoid extracting any personal information about any visitor to the website to avoid COPPA require-ments. If a website does collect personal information, the website owner must include a privacy notice on the site and obtain verifi able parental consent before collecting any personal information from children. The FTC has pursued a number

of marketers for failing to take theproper steps to verify a parent’s consent. The FTC also is seeking to broaden application of COPPA to address other emerging technologies.

Social NetworkingIn September, the FTC announced

proposed amendments to COPPA to address mobile devices, social network-ing 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 FTC also has launched efforts to scrutinize smart phone apps marketed to children.

Best PracticesPotential challenges by these gatekeepers

can be addressed by following a number of sound principles, including:

» Disclose all data collection efforts,including third-party efforts.

» Seek parental consent for all datacollection efforts.

» Avoid the creation of unrealistic expectations of product qualityor performance.

» Separate the advertising material from program content.

» Develop and maintain adequatesubstantiation for any objectiveclaim made in the advertising(substantiating the claim for thefi rst time after the fact is tantamount to making a false claim).

Small Talk Can Be Big Trouble

Patrick Whalen is a partner at Spencer, Fane, Britt and Browne in Kansas City.

(816) 292-8237 //pwhalen@spencerfane.com

Campaigns directed to children are moni-tored by state and federal regulators.