The German Federal Supreme Court (FSC) released its full decision in the Gameforge “Runes of Magic” case, holding that the language Gameforge used in its advertising was in violation of the German Act Against Unfair Competition. As a result of the FSC’s decision, video games companies and other companies in Germany that create ads directed to children should become more vigilant of the language being used in advertising, or may be subject to a violation.
It’s now been almost a month since the revised COPPA Rule went into effect July 1, 2013. Earlier this year, the FTC issued new guidance on how to comply with the revised Rule. As part of its new guidance, the FTC provided a detailed set of FAQs. To see our previous blog post on the FAQs, please click here.
The FTC is planning to make additional revisions to their FAQs, with these revisions focusing on the obligations of ad networks. Specifically, the FTC explains in what circumstances an ad network is deemed to have “actual knowledge” that it has collected personal information from users of a child-directed site (see D.10, D.11, D.12), and the obligations of ad networks after they discover that they have been collecting personal information via a child-directed website (see K.2). The revised FAQs also relates traditional enforcement policy to the context of a button within an app that automatically opens an email program or social network. Providing the facility for a child to share personal information is just as problematic as if the operator was collecting that information itself. Thus, verifiable parental consent is required when permitting children to share content that may contain personal information – such as a painting combined with a field that allows for free expression.
As of the date of this writing, the FAQs have not been updated to reflect these revisions, but we anticipate they will surely be updated soon.
In the meantime, the FAQs can be seen in their entirety below.
D.5. [Now at FAQ D.10]
D.9. I operate a child-directed app that allows kids to make paintings. I don’t collect the paintings — they rest on the device — but the app includes buttons for popular email and social media providers that kids can click on within the app. The buttons open the email program or social network, populate it with the painting, and allow the child to share it along with a message. I don’t collect or share any other personal information through the app. Do I have to seek verifiable parental consent?
Yes. The COPPA rule defines “collection” to include requesting, prompting, or encouraging a child to submit personal information online, and enabling a child to make personal information publicly available in identifiable form. In addition, under the COPPA Rule, “disclosure” includes making a child’s personal information publicly available in identifiable form through an email service or other means, such as a social network. You must get verifiable parental consent before enabling children to share personal information in this manner, even through third parties on your app. This is true unless an exception applies. (See Section I, Exceptions to Prior Parental Consent). However, in the situation you describe — where a child can email a painting and a message or post content on his or her social networking page through your app — no exception applies.
D.10. I operate an advertising network service. Under what circumstances will I be held to have “actual knowledge” that I have collected personal information directly from users of another Web site or online service directed to children?
The circumstances under which you will be deemed to have acquired “actual knowledge” that you have collected personal information directly from users of a child-directed site or service will depend a lot on the particular facts of your situation. In the 2012 Statement of Basis and Purpose, the Commission set forth two cases where it believes that the actual knowledge standard will likely be met:
- where a child-directed content provider (which is strictly liable for any collection) directly communicates the child-directed nature of its content to you, the ad network; or
- where a representative of your ad network recognizes the child-directed nature of the content.
Under the first scenario, any direct communications that the child-directed provider has with you that indicate the child-directed nature of its content would give rise to actual knowledge. In addition, if a formal industry standard or convention is developed through which a site or service could signal its child-directed status to you, that would give rise to actual knowledge. Under the second scenario, whether a particular individual can obtain actual knowledge on behalf of your business depends on the facts. Prominently disclosing on your site or service methods by which individuals can contact your business with COPPA information – such as: 1) contact information for designated individuals, 2) a specific phone number, and/or 3) an online form or email address – will reduce the likelihood that you would be deemed to have gained actual knowledge through other employees. (See also FAQ D.12 below).
D.11. I operate an ad network. I receive a list of Web sites from a parents’ organization, advocacy group or someone else, which says that the Web sites are child-directed. Does this give me actual knowledge of the child-directed nature of these sites?
It’s unlikely the receipt of a list of purportedly child-directed Web sites alone would constitute actual knowledge. You would have no duty to investigate. It's possible, however, that you will receive screenshots or other forms of concrete information that do give you actual knowledge that the Web site is directed at children. If you receive information and are uncertain whether the site is child-directed, you may ordinarily rely on a specific affirmative representation from the Web site operator that its content is not child-directed. For this purpose, a Web site operator would not be deemed to have provided a specific affirmative representation if it merely accepts a standard provision in your Terms of Service stating that, by incorporating your code, the first party agrees that it is not child directed.
D.12. I operate an ad network and am considering participating in a system in which first-party sites could signal their child-directed status to me, such as by explicit signaling from the embedding webpage to ad networks. I understand that I would have “actual knowledge” if I collect information from users on a first-party site that has signaled its child-directed status. Are there any benefits to me if I participate in such a system?
Such a system could provide more certainty for you. If the system requires the first-party site to affirmatively certify whether it is “child-directed” or “not child-directed,” and the site signals that it is “not child-directed,” you may ordinarily rely on such a representation. Such reliance is advisable, however, only if first parties affirmatively signal that their sites or services are “not child-directed." You could not set that option for them as the default.
Remember, though, that you may still be faced with screenshots or other concrete information that gives you actual knowledge of the child-directed nature of the Web site despite a contradictory representation by the site. If, however, such information is inconclusive, you may ordinarily continue to rely on a specific affirmative representation made through a system that meets the criteria above.
K.2. I operate an ad network. I discover three months after the effective date of the Rule that I have been collecting personal information via a child-directed website. What are my obligations regarding personal information I collected after the Rule's effective date, but before I discovered that the information was collected via a child-directed site?
Unless an exception applies, you must provide notice and obtain verifiable parental consent if you: (1) continue to collect new personal information via the website, (2) re-collect personal information you collected before, or (3) use or disclose personal information you know to have come from the child-directed site. With respect to (3), you have to obtain verifiable parental consent before using or disclosing previously-collected data only if you have actual knowledge that you collected it from a child-directed site. In contrast, if, for example, you had converted the data about websites visited into interest categories (e.g., sports enthusiast) and no longer have any indication about where the data originally came from, you can continue to use those interest categories without providing notice or obtaining verifiable parental consent. In addition, if you had collected a persistent identifier from a user on the child-directed website, but have not associated that identifier with the website, you can continue to use the identifier without providing notice or obtaining verifiable parental consent.
With respect to the previously-collected personal information you know came from users of a child-directed site, you must comply with parents' requests under 16 C.F.R. § 312.6, including requests to delete any personal information collected from the child, even if you will not be using or disclosing it. Furthermore, as a best practice you should delete personal information you know to have come from the child-directed site.
On April 25, 2013, the FTC provided additional guidance in relation to the revised COPPA Rule, set to go into effect July 1, with a detailed set of FAQs. Members of the business community have been calling for a delay in the effective date of the revised rules, so that businesses could have more time to get better acquainted with the rules.
The most important revisions to the COPPA rule involve new definitions for key terms, such as “operator,” “website directed to children,” and, “personal information”; parental notice and consent mechanisms; confidentiality and security requirements; and safe harbor provisions. The FAQs address each one of these topics, but extensively focus on verifiable parental consent and secure parental consent mechanisms. The FAQs provide several acceptable methods for obtaining verifiable parental consent, including obtaining written consent in a hard copy form, requiring a monetary transaction that notifies the primary account holder, and “email plus,” which requires the parent to affirmatively reply to a verification email and provide additional information to verify that they are the child’s parent/guardian. Additionally, the FAQs provide color to provisions on geolocation data, an area that has grown tremendously since the first COPPA rules were promulgated in 1999.
COPPA compliance will, indeed, require careful legal guidance and diligent oversight by companies that operate websites directed to children, but the FAQs provide helpful guidance to assist such entities reach this goal.
Days after announcing the new Children’s Online Privacy Protection Act, the FTC released its study, A Review of Food Marketing to Children and Adolescents: Follow-Up Report, on the food and beverage marketing practices directed to children and teens. The report serves as a follow up to the FTC’s 2008 report on the same topic. It was approved by the Commission by a 5-0 vote.
The FTC paints a generally positive picture about increased food company participation in the self-regulatory program, the Children’s Food and Beverage Advertising Initiative. The FTC did note though that many companies with significant marketing to children have not yet joined the effort and that there are other areas where additional improvements should be made. The results of the study were based on numbers from 2009 data. Some of the highlights were:
- Total spending on food marketing to youth ages 2-17 dropped by 19.5% since 2006, however spending on new media, such as online and mobile, increased by 50%.
- Cross-promotional marketing linking foods with children’s movies and TV shows increased from 80 children’s movies and TV shows in 2006 to 120 in 2009.
- Marketing to children of the most sugary cereals – those with 13 grams or more sugar per serving – was virtually eliminated between 2006 and 2009.
- Drinks marketed to children and teens were slightly lower in calories in 2009 than in 2006, but still averaged more than 20 grams of added sugar per serving.
- Food from fast food restaurants marketed to children and teens was lower in calories, sodium, sugar, and saturated fat in 2009, compared to 2006.
- “Children’s meals” in fast food restaurants were more nutritious than other meals and main dishes directed to children ages 2-11.
This report marks the FTC’s ongoing efforts to get companies to advertise healthier and more nutritious foods to children and teens. Last year, the FTC was part of an interagency working group, along with the CDC, FDA, and USDA, tasked with adopting voluntary principles to improve nutritional profiles of foods marketed to children. While the working group did end up requesting comments on their proposed principles, those efforts eventually stalled and never fully materialized. Despite the FTC’s good intentions, some may argue that it has no authority over these issues. Nonetheless, companies who market food and beverages to children and teens should pay close attention to this report, as the FTC’s findings still help to inform about industry practices as a whole.
FTC Chairman Leibowitz has followed though on his commitment to finalize the new COPPA rule by the end of the year. Earlier today, at a press conference, the Chairman, alongside Senator Jay Rockefeller, announced the agency’s update to the rule. The new rule expands the application of the rule to new categories of “personal information” and to third party information collectors. The new COPPA is expected to come into effect on July 1, 2013 and will have an important impact on children’s advertising. For more information on this announcement and some highlights from the amendments, please visit our sister blog, Global Regulatory Enforcement Law Blog.
Apparently, a lot of people want to know, according to the Federal Trade Commission Chairman Jon Leibowitz and Jeff Chester, Executive Director of the Center for Digital Democracy. To learn more why, read our Global Regulatory Enforcement Law Blog covering the latest complaint filed against a mobile game-maker for alleged COPPA violations.
Click here to access the post.
One is hard-pressed to think of something more important than protecting the privacy of our children. Front and center in this debate is how such privacy concerns need to be addressed in mobile platforms like smartphones. As the saying goes, “There’s an app for that”, and such is certainly true in offerings directed to children. The Federal Trade Commission has now issued its second staff report on the privacy practices of mobile apps for children, “Mobile Apps for Kids: Disclosures Still Not Making the Grade.”
No need to fret over Thanksgiving! The Federal Trade Commission has extended until December 23, 2011, the deadline for the public to submit comments on proposed amendments to the Children’s Online Privacy Protection Rule. That's good news because the revisions are significant and include the demise of the flexible "sliding scale" approach that permitted operators to install an "email plus" method of obtaining verifiable parental consent when the collection and use was of a very limited nature. Without any data or evidence of consumer harm, the FTC has determined that the "shelf life of 'email plus' has expired," to use the phrase of Commissioner Julie Brill at a recent Promotion Marketing Association conference. Apparently, making it harder for industry to market to children will force it to "innovate" new ways to comply. Sounds expensive. But, unless industry can come up with some hard evidence of those costs, the process of engaging children in interactive media will be significantly altered. There are other major changes. (The proposed changes will mean the end of user-generated contests for kids if they involve any uploaded photographs of themselves, for example.) Several industry groups, including the PMA, are planning to file comments. This extension will give industry more time to come up with hard numbers. Our sources at the staff level indicate that although there is a definite desire to kill email plus, carving out exceptions might be possible (at least in the Frequently Asked Questions that the FTC has published to help operators comply with the COPPA Rule) if commenters can produce solid reasons why this removal of the flexible approach is going to impose unreasonable costs, compared with the potential protection from admittedly hypothetical harm.
Unlike some of the recent FTC initiatives, which are arguably overreaches, these revisions, albeit aggressive, are probably within the broad Congressional authority granted to the Commission under COPPA. That makes it even more important that commenters come up with numbers about the costs of these revisions and how they might be likely to affect jobs. Even with regard to the Commission's apparent usurpation of oversight from self-regulatory bodies in the area of children's privacy, those bodies are subject to regulation by the FTC by virtue of the safe-harbor provisions. Thus, even though it will be imposing new costs and requirements on the Children's Advertising Review Unit (CARU), which was monitoring the collection and use of information from children before there even was COPPA, CARU, because it sought safe harbor status, is subject to whatever new requirements the Commission may impose. One has to wonder, however, whether the existing safe harbor entities are sanguine about the new burdens because the FTC will be effectively making the barrier to entry for new safe harbor competitors nearly impossible. Interesting anti-competitive question.
After a swift left to the chin in early September from the Republican-controlled House Energy and Commerce Committee Chair, Rep. Fred Upton, David Vladeck, the FTC Director of the Bureau of Consumer Protection, testified before the Subcommittee on Commerce, Manufacturing, and Trade, and the Subcommittee on Health, October 12, 2011, discussing the International Working Group (IWG) and changes that are underway.
- The tone of Vladeck’s statement bore a marked respect for, though not deference toward, advertising self-regulation. This is in contrast to his speech before the self-regulatory National Advertising Division of the Council of Better Business Bureaus October 3, 2011, in which he only mentioned in passing the positive role of self-regulation. In his statement before the Subcommittees, he made a much more significant effort to acknowledge the success that has been achieved to date by self regulation both in the form of the Children’s Advertising Review Unit (CARU) and the Children’s Food and Beverage Advertising Initiative (CFBAI).
- Because there is no scientific link between marketing of food and obesity, Vladeck made it clear that the Commission is asking industry to take on a share of the responsibility for solving the obesity problem “regardless of whether or to what extent food marketing may have contributed to the problem of childhood obesity” in the first place. In other words, according to Vladeck, it is a proper role of government to pressure industry to help solve multi-factored social problems by not marketing (and therefore not selling) products that may have no relationship to the social problems that the government is seeking to address. Vladeck referred the Institute of Medicine (IOM) Report from 2008 to highlight the fact that marketing influences food and beverage preferences, purchase requests and short-term diets of children under 12 to support the Commission’s position that industry should use its marketing power to eat certain foods rather than other foods. One can interpret this initiative as simply government telling industry what to advertise and what to sell based on a stated political goal. “Children’s health is the ultimate goal, and marketing of more nutritious foods is one effective tool to help achieve that goal.”
- Vladeck, who famously dismissed the notion that the IWG proposals could raise First Amendment concerns last summer in a blog post, apparently has been convinced that there may be some validity to the First Amendment arguments made by academics and lawyers in the advertising field. He states, “Our commitment to finding the best balance between what is best for children’s health and what is workable for industry has guided this entire process. . . . .The Working Group’s proposal is strictly voluntary. The Commission recognizes that some forms of regulatory action could raise First Amendment concerns.”
- After 29,000 comments and after new CFBAI guidelines, which go a long way toward achieving the government’s goal of restricting marketing behavior related to certain foods and beverages, the FTC is signaling significant changes to its proposals. Those changes include:
- Limiting the scope of marketing to children to those aged 2-11, rather than the originally proposed 2-17. Vladeck: “It is often difficult to distinguish marketing designed to appeal to this age group from marketing directed to a general or adult audience.”
- Limiting the scope of the marketing activities included within the proposals. Vladeck: “The FTC staff believes that philanthropic activities, charitable events, community programs, entertainment and sporting events, and theme parks are, for the most part, directed to families or the general community and do not warrant inclusion with more specifically child-directed marketing. Moreover, it would be counter productive to discourage food company sponsorship of these activities to the extent that many benefit children’s health by promoting physical activity.”
- Eliminating recommendations regarding trade dress and brands. Vladeck: “The Commission staff does not contemplate recommending that food companies change the trade dress elements of their packaging or remove brand equity characters from food products that don’t meet nutrition recommendations.”
- Eliminating recommendations regarding in-store displays and packaging of seasonal or holiday confections.
- Adjusting the proposed audience share criterion for “traditional media marketing,” including television, radio, and print, from 30 percent children ages 2 to 11 years, to 35 percent – which is the same age criterion used by CFBAI.
The IWG proposal is not dead, however. Expect to see the revised version focused more specifically on traditional media and on online, digital, and social marketing. Also, the IWG proposal will still seek to press its recommendations in the area of advertising or product placement in movies and video games. Additionally, it will cover sweepstakes and premium offers. And, in the one remaining proposal that will cover children and adolescents, Vladeck signaled that the proposal will cover marketing activities in schools for both children and adolescents.
Thus, the IWG proposal will be scaled back significantly. One important lesson: Self-regulation is critical, but industry must be careful of using self-regulation so aggressively that it creates a blueprint for “voluntary” regulation by governmental bodies. Cooperation between government and industry that results in co-regulation is not self-regulation. With the FTC standing right beside self-regulatory efforts, tweaking self-regulation as it deems necessary to advance espoused governmental goals of protecting children, the augmented CFBAI standards may be likely to be the presumptive norm for governmental expectations (and enforcement?). Let’s hope that the blueprint we’re now working off of will build a structure we can all live in.
CARU Annual Law Conference - Explore the role of self-regulation in the U.S. in the area of Marketing to Kids and Get a Discount
From the proposed changes to COPPA to the latest developments in the area of self-regulation of food marketing to children, the CARU conference to be held Wednesday, October 5, 2011 in New York City will be one of the best places not only to learn the details but also to interact with leaders in the industry to are on the front lines of self-regulation. Furthermore, FTC Commissioner, Julie Brill, will give a keynote address. Commissioner Brill tends to represent the more activist tendencies of the Commission, and those in attendance should be able to ask pointed questions and express concerns. The agenda and full conference information is located on the CARU website.
Because Reed Smith is a sponsor of the CARU conference, if you register by contacting Rey Persaud at 212-705-0113 or via email at firstname.lastname@example.org and mention this blog post, you will receive a $100 discount on the conference fee. Offer expires October 3, 2011.
The global attack on advertising to children draws broad battle lines. As proposed by the European Parliament Committee on the Internal Market and Consumer Protection on July 19, 2011, the draft agenda for 2012 demonstrates a distrust of advertising generally, not just in relation to marketing of food products. The Committee has proposed a ban on all advertising on television and on “direct advertising towards children under the age of 12.” The European lawmakers are basing their proposal on the reasoning that “children are children” and not “consumers.” The report does not explain this rationale.
What about teenagers? Are they “consumers”? Can they make informed choices? At what age exactly does one make “informed choices” about things like which toy to desire, which sneakers to admire, which brand of yogurt to crave, or which activity to yearn for? And, when does a person learn how to discern the difference between a commercial and non-commercial speech? Furthermore, is it possible to restrict advertising to just children under the age at which they cannot appreciate the persuasive nature of advertising? How many media are segmented so clearly that one can be assured that a ban targeting children under 12 will not restrict advertising to those 12 years old or older?
These questions are the same as those that are being researched and discussed in the United States, most recently in the context of the Interagency Working Group Proposal on Food Marketing to Children, which includes a proposal to extend restrictions (not a ban) to marketing activities directed to those 17 years of age or younger. The primary difference, mentioned by many commenters in response to the IWG’s request for comments, is that in the United States, commercial speech is protected by the U.S. Constitution. Without that civil right, Europeans are vulnerable to governmental intervention that can chill truthful, informative speech and deny members of a consuming public – including children and adolescents – exposure to a world with choices and persuasive forces. Proposals for advertising bans such as the one in Europe may promote an extension of childhood ignorance and deny children the tools and experience by which they, along with their parents, can begin to discover what it means to be a discerning member of society.
Bill Adds to the Web of Proposed Privacy Legislation and Contains Much More Than Kids Do Not Track
Today, Rep. Ed Markey (D-Mass.) circulated a discussion draft of his kids online do-not-track bill, co-sponsored by Joe Barton (R-Tex.) that proposes to make it illegal to use kids' or teens' information for targeted marketing and require parental consent for online tracking of the info. Both Congressmen co-chair the House Privacy Caucus and their kids' privacy bill will join other more generally-applicable privacy legislation pending in the 112th Congress by Representatives Cliff Stearns (R-Fl.), Fred Upton (R-Mich.), Jackie Speier (D-Calf.) and Bobby Rush (D-Ill.) and Senators John Kerry (D-Mass.) and John McCain (R.-Ariz.) with Senator Jay Rockefeller (D-W.Va.) promising to release a generally-applicable privacy bill containing Do Not Track provisions next week.
But, members of the privacy community were expecting this piece of proposed legislation. Markey had promised since late 2010 that the bill was coming. Specifically, the bill would update the Childrens' Online Privacy Protection Act of 1998 ("COPPA") provisions relating to the collection, use and disclosure of children's personal information. Further, it would establish protections for personal information of teens who were previously not addressed in COPPA at all.
Key provisions of the bill include:
Scope Updates: The bill would expand the scope of the definition of covered Internet operators to include online applications and the mobile web. The Federal Trade Commission ("FTC") would also be empowered with rulemaking authority to create more flexible definitions of operators that account for the development of new technology. The also expands the personal information protected to include IP Addresses, mobile SIMs or any other computer or other device identifying numbers.
Privacy Policies/Disclosure: The bill would require online companies to explain the types of personal information collected, how that information is used and disclosed, and the policies for collection of personal information.
Further Parental Choice: In addition to keeping the existing requirements for online companies to obtain parental consent for collection of childrens' personal information, the bill also includes provisions requiring companies to provide parents access to the information collected about their child and the opportunity to opt-out of further use of maintenance of their child's data.
Targeted Marketing Prohibitions for Kids & Minors: Website operators and other online providers would be prohibited from knowingly collecting personal information for behavioral marketing purposes from children and minors. The FTC would be required to issue regulations within one year of the bill's passage.
Digital Marketing Bill of Rights for Teens & Fair Information Practices Principles: This section incorporates the Fair Information Practice Principles ("FIPPs") concept that was in the Department of Commerce's Privacy Green Paper. Under this proposed bill, website operators and other online providers are prohibited from collecting personal information from any minors, unless they adopt a Digital Marketing Bill of Rights for Teens. Such a bill of rights or FIPPs must include provisions regarding data: collection, quality, purpose specification, use limitations, security, use transparency, access and correction.
Geolocation Information Collection of Kids and Minors: Website operators and service providers must establish procedures for notice and choice regarding geolocation information. In the case of information collection from children, an operator/provider must obtain verifiable parental consent before this information would be collected, in most cases.
Eraser Button: Website operators must create an "Erase Button" for parents and children by requiring companies to permit users to eliminate publicly available personal information content when technologically feasible. (Such a provision, however, could lead parents and children into a false sense of security on the web. With multiple outlets for data cashing, it is difficult to wholly erase data on the web.)
Expansion of FTC Jurisdiction to Telecom: In keeping with the Kerry bill, the Markey bill also seeks to expand FTC jurisdiction to telecommunications carriers.
We will be carefully evaluating these provisions while this bill pends, but we can readily identify that complications are likely to arise for marketing to young adults. For example, teens are far more likely to lie when faced with traditional age screens. So, even though the statute contains a 'knowing' information collection requirement, to what degree would marketers be required 'fortify' their existing age screens to account for teens? If more stringent age screens must be employed, will the more tedious screens reduce marketing to adults, too?
If this bill advances on the Hill, please lookout for upcoming privacy bill updates from our team.
The Interagency Working Group of Food Marketed to Children (“Working Group”) today has requested comments on proposed nutritional principles that it hopes will help in the fight against childhood obesity. The Working Group, established in 2009 by the FTC, FDA, CDC, and USDA at Congress’s request, hopes that by 2016 industry actors will meet its two-pronged self-regulatory vision: a marketing environment in which advertisers encourage kids to choose foods that make for a healthy diet; and a production environment in which food companies will police limits on the fat, sugar, and sodium content of their products marketed to kids.
In formulating its principles, the Working Group set its sights on the most heavily marketed foods to children and adolescents, ages 2-17: breakfast cereals, snack foods, candy, dairy products, baked goods, carbonated beverages, fruit juice and non-carbonated beverages, prepared foods and meals, frozen and chilled desserts, and restaurant foods. In a press release, the Association of National Advertisers, calling the proposals “sweeping” and “overly restrictive,” criticized the Working Group for inappropriately “treating teenagers as if they were young children” and employing “limited and outdated” data.
Despite these differences, the Working Group and Food Marketers can agree that these voluntary proposed principles respect industry’s preference for and progress in its self-regulatory efforts to keep our kids healthy.
Action item? Take time now to determine just how divorced from business reality these principles are for your company. If they end up suggesting that a formulation tweak would be all that it takes to be a poster child for the Working Group then go for it. If they suggest to you that it will be impossible or very costly to reformulate then get set to comment. Objective, quantifiable data is needed to make your comment useful. So, do the analysis as soon as possible and let's see if what they're imagining has any semblance of reason.
The role of self-regulation is partially educational. Wayne Keeley's CARU has demonstrated once again why the self-regulatory body he heads up is relevant and focused on ensuring that the educational mission is not lost in the day-to-day cases they hear. CARU has produced a Public Service Campaign entitled “Do You Know Where Your Children Are…On The Internet?” And, with Mr. Keeley's background as a film director, CARU ended up producing something good enough to be nominated for an Emmy Award in the Public Service Campaign category. We understand that the CARU PSA campaign has aired on WABC (Live with Regis, GMA and Rachel Ray among others); CBS; and Discovery Kids. It is presently airing on Cartoon Network. The PSA Campaign can also be seen on CARU’s Facebook page and You Tube and Vimeo:
We often hear about educational solutions targeted at consumer protection problems. CARU is definitely contributing to that end.
CARU News: CARU Public Service Announcement Asks Parents: "Do you know where your children are on the internet?"
New York, NY - August 11, 2010 -The Children's Advertising Review Unit (CARU) of the Council of Better Business Bureaus, Inc., recently launched its first public service announcements, cautioning parents to be alert to their children's activities on the Internet.
The PSAs can be viewed at: http://www.youtube.com/user/CARUSelfRegulation.
The spots feature Catherine Hicks, star of the family drama "Seventh Heaven," and they recast the time-honored broadcast message "It's 10 p.m. Do you know where your children are?" to reflect contemporary concerns about the privacy and safety of children on the Internet.
"As a learning tool, the Internet provides an amazing depth and breadth of information about the world. As an entertainment vehicle, it can offer experiences that are creative, engaging and fun," said CARU Director Wayne J. Keeley. "But beyond the boundaries of age-appropriate Web content is territory that is far less benign. It is critical that parents know where their children go on the Internet."
The PSAs feature three scenarios:
- The first spot features young girls viewing an Internet fan-club site. One child calls out to her nearby parent, "Hey, Dad, what's your credit card number?" "Credit card number?" asks the father, alarmed.
- The second depicts young boys viewing a gaming site that requires registration. "Hey, Dad, what's my Social Security Number?" says one child. "Social Security Number?" asks the worried father.
- The third spot features girls viewing a social-networking site where one has just posted a questionable picture. As one girl says "I am glad my mother doesn't have an account," her mother walks in, sees the picture and states, "We have to talk."
In all three spots, Ms. Hicks asks the question: "Do you know where your children are on the Internet?"
The PSAs then direct parents to CARU's Website, http://www.caru.org/, where there is a wide range of information available to parents on Internet safety at CARU's "Parents' Corner."
The PSAs are currently running:
- On WABC-TV, which serves the largest market in the country - New York, New Jersey and Connecticut. The PSAs have been broadcast during Good Morning America, Rachel Ray and Live with Regis and Kelly and will continue to air.
"WABC-TV is committed to the safety of the children in our community and airing this psa allows us to reinforce the importance of children's safety on the internet," said Saundra Thomas Vice-President of Community Affairs.
- On Discovery Kids' "family-prime" evening programming which includes the shows "Timeblazers," "Mystery Hunters" and "The Saddle Club."
"The folks at the Hub and Discovery Kids are delighted to help CARU get this critical message out to parents; know where your children are... in the real world and the virtual world of the Internet," said Margaret Loesch, President and CEO, The Hub.
CARU is the self-regulatory forum for the children's advertising industry. CARU's self-regulatory program sets high standards for the industry to assure that advertising directed to children is not deceptive, unfair or inappropriate for its intended audience.
CARU's standards are embodied in principles and guidelines first adopted by CARU in 1975 and periodically updated to address changes in the marketing and media landscape. In addition to monitoring ads in all media for compliance with its guidelines, CARU staff also review Websites directed to children to assure compliance with CARU's guidelines and the federal Children's Online Privacy Protection Act (COPPA).
In the past three years, CARU has issued nearly 70 decisions on Website safety and online privacy; Internet-related cases account for one-third of CARU's caseload. CARU's decisions are available at http://www.narcpartners.org/.
About Advertising Industry Self-Regulation: The National Advertising Review Council (NARC) was formed in 1971. NARC establishes the policies and procedures for the National Advertising Division (NAD) of the Council of Better Business Bureaus, the CBBB's Children's Advertising Review Unit (CARU), the National Advertising Review Board (NARB) and the Electronic Retailing Self-Regulation Program (ERSP).
The NARC Board of Directors is composed of representatives of the American Advertising Federation, Inc. (AAF), American Association of Advertising Agencies, Inc., (AAAA), the Association of National Advertisers, Inc. (ANA), Council of Better Business Bureaus, Inc. (CBBB), Direct Marketing Association (DMA), Electronic Retailing Association (ERA) and Interactive Advertising Bureau (IAB). Its purpose is to foster truth and accuracy in national advertising through voluntary self-regulation.
NAD, CARU and ERSP are the investigative arms of the advertising industry's voluntary self-regulation program. Their casework results from competitive challenges from other advertisers, and also from self-monitoring traditional and new media. NARB, the appeals body, is a peer group from which ad-hoc panels are selected to adjudicate NAD/CARU cases that are not resolved at the NAD/CARU level. This unique, self-regulatory system is funded entirely by the business community; CARU is financed by the children's advertising industry, while NAD/NARC/NARB's primary source of funding is derived from membership fees paid to the CBBB. ERSP's funding is derived from membership in the Electronic Retailing Association. For more information about advertising industry self-regulation, please visit http://www.narcpartners.org/.
Dear Friends and Supporters:
As most of you know, CARU is in the process of launching a PSA campaign on children's safety on the Internet. As Director of CARU and a parent of three young children, I ask that you please help us to get the word about this extremely important issue and our PSA campaign by following and "liking" the links below and passing along to friends and colleagues.
Wayne J. Keeley
Vice President, CBBB
The Federal Trade Commission testified that while teens are heavy users of the digital environment and may benefit from using the Internet to socialize with peers, learn about issues that interest them, and express themselves, it also can pose unique challenges for them. The FTC testimony to the Senate Committee on Commerce, Science, and Transportation, Subcommittee on Consumer Protection, Product Safety, and Insurance notes that the Commission will continue to use law enforcement, education, and policy tools to protect teens in the digital environment.
A 2007 study by the Nielsen Company reported that 35 percent of American "tweens" (kids 8‑12) now own mobile phones. How can we reach them via mobile marketing programs without violating any legal or ethical guidelines?
The answer turns out to be remarkably simple. The potential is enormous for mobile marketing to be used as a learning tool and to promote healthy, educational products and services. There is a tremendous opportunity to use mobile in creative ways that actually support good parenting while teaching kids how to be responsible, discerning consumers.
- Implement safety measures, such as parental consent – Smart kids with cell phones can easily respond to a call-to-action on a cereal box or TV commercial, and opt-in to promotions without their parents' knowledge or consent. As such, advertisers will often be required—or at least strongly encouraged—to add legalese that may range from asking respondents to confirm they are of a certain age, to expressly prohibiting the participation of certain groups from a program or promotion. Sometimes the best approach is to add extra precautions on top of the legal requirements, such as sending a confirmation link to a parent or guardian’s e-mail address before anything is activated. Some mobile phone providers, such as Kajeet, offer computer programs that allow parents to monitor activity on the child's cell phone account.
- Market to both parents and kids by creating a marketing message that would be parent-approved and kid-friendly –If a brand's mobile marketing campaign offers healthy, educational products, such as an opportunity to join a book club, discounts on a local art class or coupons for healthy snacks, parents will be happy to opt-in. No matter how tech-savvy a 12-year-old might be, it's the parents who make the purchase. A brand is basically marketing to a parent via the child's cell phone. Promotions should be created with the parent in mind, but should be designed to appeal to the child.
- Follow all legal guidelines – Ad campaigns and programs targeting children should be analyzed on a case-by-case basis to determine both the legal requirements and the potential risks associated with such programs. This is an evolving area, and many issues still sit somewhere within a spectrum of different shades of gray. The laws and regulations governing this area of business can be complex and even conflicting at times. They can range from Federal Trade Commission laws (COPPA – Children’s Online Privacy Protection Act) and various state laws, to self-regulatory principles and best practices, like those promulgated by the Direct Marketing Association, the Children’s Advertising Unit of the Better Business Bureau, and the Mobile Marketing Association. While government regulators and self-regulatory agencies alike understand that no sweepstakes, contest or program is child-proof, they do expect advertisers to do their part to protect the safety of our kids. Along with a whole host of information on-line, sound legal advice in this area is key. Get it and follow it.
- Empower kids by giving them a voice, create a campaign that lets kids voice their opinion – In order to engage kids, create an interactive environment, such as a mobile game, a poll where they can vote for something, or interactive SMS or IVR that enables kids to participate and play. Kids learn through play, and brands will be most remembered when kids have had the opportunity to interact with the brand.
Mobile marketing doesn't have to turn kids into mindless consumers. Instead, it can open up a world of educational and developmental potential that parents can embrace rather than resist. Managing time and texting costs is a great way to teach kids how to budget their resources. Using advertised toys as an incentive for performance is an effective motivational tool. And mobile coupons that encourage kids to read books or participate in physical exercise is an idea that any parent would love.
Ping Mobile is a full-service mobile marketing and technology company providing a complete range of mobile marketing services, including SMS, MMS, IVR, WAP applications and Bluetooth. With an industry-leading focus on consultancy, reporting, data analysis and client services packages, Ping Mobile is the mobile marketing agency of choice for clients that have included Warner Brothers, Ford Motor Company, Days Inn, Disney's Soap Channel, Kentucky Fried Chicken, Arby's, Pizza Hut and Hawaiian Airlines.
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Last year, the Maine Legislature adopted 10 MRSA c. 1055, which, among other things, attempted to extend COPPA-like protection to all minors (that is, children under the age of 18). The law was plagued by a number of issues, including questions regarding its constitutionality, and ultimately caused the Maine attorney general to promise not to enforce the law as written. Based on this, it was generally understood that the Maine Legislature would revisit the law in the 2010 legislature session.
The legislature did not wait long. On January 7, 2010, a new children's privacy bill was referred to the Maine Senate Committee on Business, Research, and Economic Development. The new bill, currently listed as LD 1677, would repeal the existing children's privacy law, but would enact a new prohibition on the collection and use of personal information that is: (a) collected and used on the Internet; (b) about a minor; or (c) for the purposes of pharmaceutical marketing.
Although this bill is narrower in scope than the law it seeks to replace, there are still problems with it. First, the bill applies to any personal information about a person under the age of 18, regardless of whether that information is related to health. Therefore, any information about a minor, including name, e-mail address, etc., would be covered. Second, the law seems to apply only to information collected on the Internet; it is unclear whether this information would apply to information collected through other means such as offline collection, mobile device, etc. Third, the text of the prohibition is poorly worded. The prohibition states that "any person may not collect and use information collected on the Internet ..." (emphasis added). Thus, by a literal reading of the text of the bill, a company could collect information about a minor for the purpose of pharmaceutical marketing and avoid liability if it does not use the information. Alternatively, a company could use information that is collected on the Internet by someone else since it would neither have collected nor used the information.
Of course, it is unlikely that the Maine attorney general would interpret the law in this way because this would create a substantial loophole. Instead, it is more likely that the law would be interpreted as creating two strict liability offenses—one for collection of information if the reason for the collection is to promote pharmaceutical sales, and one for the use of any information about a minor to promote pharmaceutical sales, whether or not the information was originally collected for that purpose.
Why This Matters: If enacted, this bill would place a higher burden on companies that sell either over-the-counter or prescription drugs, including pharmaceutical manufacturers and retailers. Such companies will have to be very careful with any marketing program that could conceivably collect or use information about a minor. For example, an e-mail blast with weekly offers that includes discounts on over-the-counter products could violate the bill's prohibition on marketing to children if a minor's e-mail address was included in the recipient list. Companies that sell pharmaceutical products should watch the progress of this bill closely to determine what kinds of systems should be created to avoid liability. There may be an opportunity to comment on rules that must be promulgated by the Maine attorney general within a year after enactment of the law.
Self-Regulation Once Again Called into Question by FTC as It Revisits Violence in Music, Movies, and Electronic Games Advertised to Children
On December 3, 2009, the FTC released a report to Congress that outlined various ways in which self-regulation has not done enough to limit advertising to children of music with explicit lyrics, and movies and games that depict violence.
The report spans various media platforms and contains specific recommendations to the entertainment industry.
- The movie industry and the music industry should develop specific and objective criteria to restrict marketing of violent movies and music to children.
- The FTC is looking for restrictions not only for advertising R-rated movies in venues reaching a substantial under-17 audience, but also for the advertising of PG-13 movies in venues reaching a substantial under-13 audience.
These criteria should apply both to direct advertising of the movie and to indirect promotion of the movie through tie-in advertising of foods, toys, and other licensed products appealing to children.
The FTC also recommends that the music industry should implement restrictions for all Parental Advisory Label (PAL)-stickered music in venues reaching a substantial under-17 audience.
- The criteria implemented by the movie and music industries should include not only the percentage of the underage audience, but also other factors like the absolute number of children reached, whether the content is youth-oriented, and the youth popularity and apparent ages of the characters and performers.
- The movie, music, and electronic game industries should evaluate their restrictions and tighten them as necessary, paying particular attention to online and viral marketing, to ensure that advertising is not placed in venues reaching large underage audiences.
The movie industry should increase enforcement efforts against online posting of “red tag” trailers without adequate age-based restrictions on access.
The movie industry should carefully examine the content of “appropriate audience” trailers for consistency with the feature films they will precede.
The movie industry should place all rating information prominently on the front of DVD cases and other packaging for home releases of movies and should make disclosure of both rating and rating reasons prominent in all advertising venues.
The music industry should display the PAL more prominently in advertising, particularly in television and online venues, and should provide information about the specific type of explicit content.
The electronic game industry should include content descriptors with the rating on the front panel of game packaging and should continue to provide more detailed rating summaries for parents online.
The movie industry should take steps to better inform parents about additional adult content in unrated DVDs and should give parents a way to assess the appropriateness of unrated versions for their child.
- Specifically, the industry should either re-rate DVD releases that contain additional content or, at a minimum, extend the new disclosure rule regarding the content of unrated DVDs to all forms of advertising and improve the level of compliance with the rule.
- Retailers and theater owners should continue to strengthen enforcement efforts restricting the sale of tickets to R-rated movies, R-rated and unrated movie DVDs, PAL-stickered music, and M-rated games to children, paying attention to possible enforcement gaps created by the use of gift cards for online purchase.
Since the FTC issued its first report on marketing violent entertainment to children in 2000, the agency has called on the entertainment industry to be more vigilant in three areas: restricting the marketing of mature-rated products to children; clearly and prominently disclosing rating information; and restricting children’s access to mature-rated products at retail. This latest report found areas for improvement among music, movie, and video game marketers, but credited the game industry with outpacing the other two industries in all three areas.
The report, entitled “Marketing Violent Entertainment to Children: A Sixth Follow-up Review of Industry Practices in the Motion Picture, Music Recording & Electronic Game Industries” analyzed information from sources including marketing documents submitted by industry members, an undercover “mystery” shopper survey, consumer surveys conducted in shopping malls and by telephone, “surfs” of industry Web sites, and data acquired from proprietary ad-monitoring services. Findings included:
- Music: While the music industry’s Parental Advisory Label alerts parents to explicit lyrics in recordings, it does not provide information about the nature of that content. The music industry has declined to implement rules restricting the marketing of explicit-content labeled music to children. The report does not find any indication of specific targeting of children, but does show numerous examples of ads for explicit-content music on television programs popular with teens. Disclosure of the label in advertising is still spotty, including on official artist and company Web sites, where the label usually is not readable. Television ads display the explicit content label only half the time and even then usually not prominently. Music CD retailers and online download sites, by contrast, do an excellent job of displaying the parental advisory label. Finally, retailers do not effectively prevent children from buying explicit-content music, with seven in 10 underage shoppers able to buy CDs with a Parental Advisory Label.
- Movies: Although the movie industry determines on a case-by-case basis whether a PG-13-rated film may be advertised to children under 13, there is no explicit policy restricting such marketing. As detailed in the marketing plans reviewed by the Commission, movie studios targeted violent PG-13 films to children under 13 both through advertising and promotional tie-ins with foods, toys, and other licensed products. Studios continued to place a significant number of ads for violent R-rated movies on television shows and Internet sites highly popular with children under 17. Increasingly, industry members post “red tag” trailers for R-rated movies, intended for age-restricted audiences, on the Internet without age-based access restrictions. Although the MPAA rating and rating reasons are not always prominent, the industry generally does display the MPAA rating in advertising. Rating information on DVDs is not prominently placed; moreover, more and more DVD versions of movies are not rated, and some studios hype the lack of a rating. The Commission’s research shows that parents are not adequately informed that unrated DVDs may contain additional violent or adult content. On the positive side, theaters denied 72 percent of underage shoppers admission to R-rated movies, a significant improvement from 2006 and even more so from 2000. Most retailers, however, continue their poor record of enforcement against underage purchase of R-rated and unrated DVDs.
- Electronic Games: The FTC finds a high degree of compliance with the video game industry’s marketing and advertising rules, although these standards allow game marketers to advertise on many television shows and Web sites popular with children. Further, retailers are enforcing age restrictions on the sale of M-rated games to children, with an average denial rate of 80 percent. The report notes, however, that children may be able to obtain M-rated games by, for example, using retailer gift cards online. Finally, the proliferation of game applications for mobile devices provides challenges – for example, some companies do not provide any rating system for games available on their networks, and there is no consistent system of age-based parental controls for these applications.
California has long had a law requiring that children seeking to be employed in entertainment productions, or as advertising or photographic models, must obtain an Entertainment Work Permit prior to beginning work. See Cal. Labor Code § 1285 et seq.; see also 8 C.C.R. 11750 et seq. The Entertainment Work Permits were issued free of charge upon submission of the application, which required, among other things, proof of the child’s school attendance, adequate grades, and health records. However, since the permits were not tracked in a meaningful way, some parents had little incentive to obtain them in the first place.
The California Legislature has sought to address this issue through the passage of a new law – A.B. 402. The new law, if signed by the governor, would require permit seekers to pay a fee of $50 every six months to obtain the required authorization. The money collected from these fees would be deposited into the Entertainment Work Permit Fund, and would be available for use by the Labor Commissioner to make at least one unannounced site visit per quarter to a randomly selected set or production facility where one or more children are working under Entertainment Work Permits; the money would also be used to develop and enhance an Internet website, informational materials, and training provided to studio teachers.
The bill was supported by SAG, but opposed by The Hollywood Group and Republican Assemblyman and 2010 Senate Candidate Chuck Devore.
Why This Matters: A.B. 402 would provide a sourcing of financing to visit production facilities where children are working under Entertainment Work Permits, and in fact would require the Labor Commissioner to make at least one such visit per quarter. By placing a requirement on the Labor Commissioner to make site inspections, there will be an enhanced incentive on the part of the production facility, as well as on the producer and/or advertiser, to comply with all child actor-related laws, including working-condition regulations and the establishment of Coogan Trust Accounts.
Following the U.S. District Court's statement last month regarding the dubious constitutionality of Maine's Act To Prevent Predatory Marketing Practices against Minors has been recommended for repeal by a special committee of the Maine legislature. MediaPost reports that last Friday, the state's judiciary committee conceded that the constitutionally flawed statute, which had been questioned but not invalidated by the Court, could only create unnecessary costs in a flurry of private actions. That said, the committee was committed to the original purpose behind the law, that is, to enact a carefully tailored measure to address the collection of minors' health-related information.
Why This Matters
Advertisers and marketers can go back to their normal age filters and can once again include Maine in their promotions and marketing plans.
No, school bus drivers were not playing Pink Floyd's classic Another Brick in the Wall (We Don't Need No Education) just in time for the first day of school. Yesterday, the Federal Communications Commission (FCC) released a Report to Congress evaluating the commercial proposals for distributing radio and television programs aboard school buses. The FCC found that local authorities should decide whether carrying broadcasts on school buses is appropriate, despite the concerns that parents, teachers, transportation authorities and others voiced on the docket (MB Docket No. 09-68). The Report, mandated by the 2009 Omnibus Appropriations Act, focuses on BusRadio, a service that’s long been controversial among some members of Congress. The service reaches 1 million children and carries music, ads and promotional programming, the Report said.
Opponents to BusRadio's programming alleged that the service presents a variety of health/safety concerns. Namely, the increased background noise could cause children to miss the bus driver's safety instructions, and BusRadio's contest programming encourages bus drivers to place telephone calls while driving in order to win prizes. The concerns did not stop there. Opponents also alleged that BusRadio violates children's programming restrictions adopted by the FCC and the Council of Better Business Bureau's Children's Advertising Review Unit (CARU). These groups argued that BusRadio engaged in host selling and failed to properly disclose promotional advertisements, among other items.
Ultimately, while the Report suggested several voluntary ways the company could improve, it found that the FCC had no jurisdiction to regulate the content of BusRadio. “BusRadio holds no broadcast licenses and thus is not subject to our broadcast regulations,” the Report said. Thus, the FCC shifted responsibility to police on-bus broadcasting to school districts that carry the service. Opponents are concerned that school districts are "interested parties" that will be less willing to regulate content on-board school buses because of the freebee safety services that the companies provide. For example, all of BusRadio's receiver units contain GPS devices and cellular modems that can help parents track the location of their child. Given the concerns already voiced by parents' groups in the trade press, we are likely to hear more on this issue before other venues. Stay tuned.
This post was written by Dan Jaffe.
The business community has won an important victory in a lawsuit challenging a Maine law that severely restricts the collection, transfer and use of “personal information” or “health-related information” from minors. The Maine Attorney General has publicly committed not to enforce the law, which was scheduled to take effect on September 12th. Although the federal court stopped short of granting a preliminary injunction, it sent a clear message that any private cause of action under the new law could suffer from “constitutional infirmities.” We are very hopeful that this will give the business community an opportunity to work with the Attorney General, the bill’s sponsor and others in the Maine Legislature to resolve the serious defects with the legislation.
On August 26th, a lawsuit was filed in federal court in Maine by the Maine Independent Colleges Association, the Maine Press Association, NetChoice and Reed Elsevier challenging the Maine “Act to Prevent Predatory Marketing Practices Against Minors.” The lawsuit argues that the law is unconstitutional on both First Amendment and dormant commerce clause grounds and is preempted by the federal Children’s Online Privacy Protection Act (COPPA).
After hearing arguments yesterday on the motion for a preliminary injunction against the Act, the federal court found that the Plaintiffs had “met their burden of establishing a likelihood of success on the merits of their claims that Chapter 230 is overbroad and violates the First Amendment.” The court’s order specifically noted that the Attorney General has publicly acknowledged First Amendment concerns and has committed to not enforce the Act. In addition, the order put potential third parties on notice that any private cause of action under the Act could suffer from “the same constitutional infirmities.” We are very hopeful that this will discourage any such private lawsuits. With these strong findings of the court, the parties agreed to dismiss the lawsuit without prejudice, allowing the parties to relitigate if some third party tries to enforce the law.
ANA has provided financial support for the lawsuit and we are pleased with this result. Also, there has been a commitment to revisit and consider carefully revising the law when the Maine Legislature reconvenes this January.
The lawsuit filed in Maine to stay enforcement of a Maine privacy law targeting minors, received a hearing today in federal district court. The Maine attorney general argued that the motion for a preliminary injunction should be denied and that the case should be dismissed. MediaPost reports that Attorney General Janet Mills, having already stated that she will not enforce the law, sought dismissal of the case on the grounds that "It is well-established that a federal court has no jurisdiction over a challenge to a state statute when there is no credible risk of enforcement." Even though the plaintiffs in the case fear that the private right of action in the statute (which becomes effective Sept. 12, 2009) could bring an avalanche of lawsuits, the Maine AG contends that those lawsuits are hypothetical. She states in her papers, "Essentially, the courts do not require state officials to defend against theoretical lawsuits that might be brought by private parties against private parties." The judge in the case, the Hon. John A. Woodcock, did not rule from the bench at today’s hearing. He indicated that he would have a ruling no later than Friday (Sept. 11, 2009). Stay tuned. . . .
The news from the front is that progress is being made toward staying enforcement of the Maine privacy law targeting minors. The law, which contains a private right of action, has caused many to void Maine in their promotional plans for the fall and to adjust their data collection practices.
The new Maine privacy law targeted at minors suffers from serious constitutional flaws.
Under the new Maine law, which is scheduled to take effect Sept. 12, 2009, an entity may not collect, receive or use personal or health-related information from a minor for marketing purposes without first obtaining “verifiable parental consent.” To obtain such consent, the entity must undertake a “reasonable effort, taking into consideration available technology” to notify the parent and obtain parental consent. Any such notice must describe the entity’s practices regarding the collection, use, and disclosure of the information, and the consent provided must authorize such practices before any information may be collected, received or used.
Maine is following the lead of other states that have tried to expand the federal Children’s Online Privacy Protection Act (“COPPA”) to address adolescents between 13-17 years of age and their use of social networking websites. Like COPPA extension proposals in New Jersey (extending COPPA to cover the 13-17 age range) and Illinois (applying COPPA to most social networking sites), the Maine law tries to build on COPPA’s "verifiable parental consent" requirement for the 13-17 age range.
But, the Maine law addresses the following additional items:
- Online & Offline Information Collection: The Maine law applies to all collection, receipt or use of information from a minor, whether online or offline, whereas COPPA only applies to online activities.
- Personal Information: Although both COPPA and the Maine law define “personal information” generically as any “individually identifiable information,” the examples provided in the Maine law are less focused on the online collection of information than COPPA.
- Health Related Information: The Maine law applies to the collection and use of both “personal information” and “health-related information,” whereas COPPA only applies to personal information.
This statute potentially could greatly complicate children’s marketing compliance, because it will create a marketing environment in Maine that is inconsistent with COPPA. Because the Maine legislature will not be in session until Jan. 6, 2010, and there have been no rumors of a special legislative session before September, the industry has been busy seeking a way to stay enforcement of the law. Among the bases for challenge that could forestall enforcement of the law might be:
- Statutory Preemption: Section 1303(d) of COPPA preempts state or local government laws that are inconsistent with COPPA. The legislative history of COPPA reveals Congressional findings that: (1) adolescents over the age of 13 have privacy rights and a greater understanding of commercial content, and (2) a national uniform standard was necessary because of the global distribution of the Internet. With this knowledge, Congress chose to regulate only the online collection of information from children younger than 13, and included this preemption provision to specifically guard against a patchwork of inconsistent regulation.
- Dormant Commerce Clause: Under Pike v. Bruce Church, 397 U.S. 137 (1970), if “the burden imposed . . . is clearly excessive in relation to the putative local benefit, and if the local interest can be promoted by other regulations that have a lesser impact on interstate activities,” the court may strike down a state law that burdens interstate commerce. Courts have invalidated a number of Internet-related state laws (regarding matters such as obscenity and SPAM regulation) on these grounds. In this case, the Maine law would be excessive because it forces out-of-state websites to treat Maine users differently – or to treat all Internet users as if they were located in Maine. Further, the interest of protecting children’s activities online is already addressed in COPPA, a uniform federal statute that has less impact on interstate commerce.First Amendment Commercial Speech: Under Central Hudson Gas v. Public Service Commission, 447 U.S. 557 (1980), commercial speech that is not illegal or deceptive is afforded First Amendment protection. Courts may overturn statutes where the government does not demonstrate that its regulation: (1) directly advances a substantial government interest, and (2) is no more restrictive of speech than necessary. In this case, the Maine statute is overbroad and would not directly advance the government’s interest of protecting children’s activities online – the statute pertains to any collection of a youth’s information whether online or offline. Likewise, advertisers could find less restrictive and less comprehensive approaches to deter the perceived harm. For example, a parent could monitor his child’s computer use, and prevent the child from providing personal information. Or, parents could purchase “Net Nanny” software, which has settings to prevent personal information disclosure. Both of these solutions require no regulation at all.
- Higher Value First Amendment Concerns: This statute has the potential to raise issues justifying a higher level of judicial scrutiny. For example, if government regulation could cause a chilling effect on any form of speech or regulate political speech, courts generally afford the speech strict scrutiny. In this case, it is not out of the realm of reasonableness to assume that some website operators could avoid information collection to the 14- to 17-year-old age group altogether, chilling all forms of youth marketing. Or, for political speech matters, groups like the Young Democrats or the Young Republicans may want to avoid collecting youth information as well, because much political activity could be viewed as marketing (i.e., party donation solicitations and memorabilia sales e-mails).
The news on the front is that the AG of Maine understands and supports the stay. At least we know for sure the AG will not be bringing any actions under this law until the legislature revises it. It is critical that a stay be put in place to ensure that the industry is not inundated with nuisance private lawsuits for violation of the law. On the whole, however, things are moving in the right direction.
We will, of course, be following this carefully. Please call if you have any questions.
The CARU Annual Conference is scheduled for October 7, 2009 at New York City's W New York Hotel; 541 Lexington Ave. Expert panelists will consider challenging issues presently facing the Children’s Advertising Industry, focusing on how the digital age has changed the way companies market their products to children. Panelists will examine and demonstrate the practical application of governing standards and industry guidelines to these new emerging media platforms.
The conference will provide attendees with the opportunity to be on the forefront of the latest regulatory developments including an update on U.S. self-regulatory food initiatives, and the EU Privacy Directives.
Keynote speaker, Pete Blackshaw, Executive VP, Strategic Services, The Nielsen Company
Scheduled sessions: "The Rules of the Digital Playground,” "Delivered Straight from the Source: Examining the Latest Regulatory and Legal Framework for Addressing Emerging Media Forms,” "Recognition vs. Persuasiveness: What do kids know and when do they know it?” and “Working with CARU – The Anatomy of a CARU Case.”
Up to 5 Credits for Continuing Legal Education
This course has been submitted for approval in accordance with the requirements of the New York State Continuing Legal Education Board for approximately 3-5 professional practice credits.
Accreditation will be sought for registrants in those jurisdictions with continuing education requirements.
The W New York Hotel
541 Lexington Avenue, New York, NY
For general questions regarding this conference please contact:
For more information and to register, go to www.narcpartners.org.
On June 2, 2009, the Governor of Maine signed into law an Act To Prevent Predatory Marketing Practices against Minors, codified at Maine Rev. Stat. Ann., tit. 10, ch. 1055, § 9551, et seq. Although its title would seem to apply to “predatory” practices, and earlier versions focused only on health-related information, the enacted bill effectively extends COPPA protection to those younger than 18 (the age of majority in Maine) rather than just those younger than 13.
Under the new law, which is effective 90 days after the date of enactment, it is unlawful to collect individually identifiable information about “minors” without verifiable parental consent, if the information is going to be used for marketing purposes. The new law comes with a private right of action that allows for damages up to $250 per violation. (It is not clear how “per violation” will be defined, and whether a person can bring the action for violations involving only his or her own personal information. At the very least, the possibility of a class of consumers seeking recovery of up to $250 per violation is present.) The plaintiff also is entitled to attorneys’ fees and costs, and the amount of the damages can be trebled if the violation was willful.
The new law also creates a civil penalty, which appears to be available only in the case of an action brought by a state regulator, of “no less than” $10,000 per violation. The penalty goes up to $20,000 for subsequent violations of the law.
What This Means
Although regulations could be developed that temper the possible effect of this new Maine law, on its face, it essentially extends the Children’s Online Privacy Protection Act (COPPA) to cover teenagers. What is missing, however, is any reference to the exceptions in COPPA that permit marketers to offer children the ability to provide their online contact information in order to participate in a one-time request for a service, like entering a sweepstakes. Thus, a marketer is faced with the prospect of having to obtain COPPA-style verifiable parental consent from a teenager (under 18) in order to include a minor from Maine in his promotion, or voiding the promotion in Maine (at least for those under the age of majority).
FCC Comments Raise Issues Regarding Content-Rated Ads and Product-Placement Blocking that Underscores the Need for Further Parental Controls Discussions
Television parental content controls are still under review by the Federal Communications Commission (“FCC”), and children’s activist groups are urging the FCC to mandate technology that would allow viewers to block “objectionable” advertising material.
As a follow-up to the last month’s article regarding the FCC’s Notice of Inquiry to Implement the Child Safe Viewing Act of 2007 (“CVSA”), thousands of comments have been submitted to the docket already. In addition, some children’s advocacy groups have suggested that the FCC (1) require broadcast networks, cable networks and individual broadcast stations to rate advertising content, and (2) facilitate an industry solution to allow parents to preemptively identify and block programs containing embedded advertising messages. It would be advisable for industry to directly address the nuanced issues that should be considered if ad ratings and embedded advertising blocking proposals are further explored, such as:
Advertisement Content Ratings:
- Should advertising content be tailored to the rating of the television program (i.e., if a television program is rated TV14 under the Television Parental Guidelines, should all advertisements contained in the program-hour be suitable for at least a TV14 audience)?
- Would the content rating be based on the actual content of the advertisement?
- Or, would the content rating be based on the product advertised (i.e., feature film ads may not contain racy content, but the full-length feature could have nudity, expletives and violence)?
- How would the FCC treat advertisements for entertainment-related toys (i.e., toys related to the movies “Pirates of the Caribbean” and the “Transformers” are popular for young children, but the movies themselves are both rated PG-13)?
- How would the FCC treat popular children’s products that symbolize violence, (i.e., advertisements for toy guns or even common war play board games, such as Battleship!)?
- Would the regulation be limited to direct paid product placements?
- Or, must the program-producer avoid any mention of logo-related goods or apparel?
- What if the brand is essential to the story line or title of a program (i.e., if the full length feature, “The Devil Wears Prada,” is broadcast on television, must it become “The Devil Wears Undisclosed Designer Label” in the promotions, for the television broadcast to avoid blocking)?
Bear in mind, the CVSA directs the FCC to examine advanced parental control technologies that would be compatible with various communications devices and platforms, consistent with the medium-specific First Amendment analysis. Currently, parents are faced with several different ratings standards for content, depending upon the media: (1) the TV Parental Guidelines for television programs, (2) the MPAA Film Ratings for feature films, (3) the Entertainment Software Ratings Board ratings for video games, and (4) various Internet web-filtering technologies. So, to the extent that commenters can discuss the proposed advertising ratings and blocking technologies in the context of synergizing the different forms of ratings standards, the comments are likely to be more effective.
Why this Matters:
A report on television parental controls is due to Congress Aug. 29, and this is likely to be the first media proceeding tackled by presumptive FCC Chairman Julius Genachowski. The presumptive chairman is also a founding board member of a parental content control group, Common Sense Media, so he is likely to be well-versed on this issue and less willing to accept that the status quo is ideal. Further, assuming Al Franken wins the Senate seat in Minnesota; with Arlen Specter’s recent announcement, the Democrats in Congress now have a majority in the House and a filibuster-proof majority in the Senate. These recent Senate gains would make it easier for Congress to address comprehensive parental controls reform, if it chooses to do so.
There is still time to add meaningful nuance to the docket that is being reviewed by FCC staff and will ultimately be summarized for Congress. Any interested commenter may submit reply comments until May 18.
The Children's Advertising Review Unit (CARU) determined recently that Skechers, the maker of Red Phrans-Phavorite Sneakers, and Marc Ecko Enterprises, which markets the product, should modify or discontinue advertising that suggests the shoes shine red when used. CARU picked up the ad during its monitoring practices, as it aired during after-school hours on Nickelodeon. Vanessa Hudgens is shown dancing in the commercial, and as she does so, her shoelaces light up in bright red. Her back-up dancers also wear shoes that appear to light up. There is even a close-up of the laces illumiunated in red. Oh, and did I mention the shoes are called "Reds"?
Red-faced with frustration, Skechers and Marc Ecko Enterprises have decided that CARU is wrong to assume that kids think the laces really light up. So they are going to appeal to the National Advertising Review Board (NARB). Appeals from CARU cases are rare, so this should be interesting. It should be noted that CARU has no power to pull an advertisement, and it cannot refer the matter to the FTC while an appeal is pending under its procedures. Thus, Skechers and Marc Ecko might be planning to run the spot through Easter and then pull it before the NARB hearing. If so, that's an interesting strategic move.
Why This Matters
You can't misrepresent how a product works, but the threshold is very low when it comes to kids. Shoes that appear to light up or that make you jump really high are two ways in which CARU has limited marketers' ability to exaggerate in the area of kids' advertising. Also, when it comes to the self-regulatory process, it's good to know the rules.
Nigeria’s Consumer Protection Council (“CPC”) is calling for a global ban on advertising for food that is high in fat, sugar, and salt, at least with regard to children’s advertising. According to an article in Africa News, CPC is calling on the World Health Organization to support a strong international code that would ban marketing low-nutrition food to children.
CPC is seizing the opportunity of this year's World Consumer Rights Day (March 15, 2009) to strongly urge the Nigerian Federal Ministry of Health to support a ban on radio or TV advertisements promoting “unhealthy” food between 6 a.m. and 9 p.m., and no marketing of unhealthy foods using news media (such as websites, social networking sites and text messaging). In addition, the proposed code would ban promotion of unhealthy foods in schools; free gifts, toys or collectable items that appeal to children to promote unhealthy foods; and the use of celebrities, cartoon characters or competitions to market unhealthy food.
This proposal is also supported by Consumers International (“CI”), the self-proclaimed global campaigning voice for consumers.
Why this Matters: This sort of international movement has the potential to turn a spotlight on what food marketers are doing outside of the United States. Clearly, the U.S. food and beverage marketers have done more than their fair share of retooling and shifting the messages toward “better for you” food, and there is strong self-regulatory oversight provided by the CBBB’s Children’s Food and Beverage Advertising Initiative (“CFBAI”). This is not satisfying the public interest groups that seek to trample commercial free speech and the responsibility of parents here in the United States, and it clearly isn’t satisfying the rest of the world. The CFBAI should engage in more international outreach so that the reactionary forces that threaten to undermine truthful and useful advertising, not to mention the sponsorship dollars for media content, do not take us down a path of unwise and unnecessary posturing, as appears to be going on in Nigeria.
Sky One, a UK satellite channel that broadcasts "The Simpsons," has been told that the sponsorship of the programme by Domino's Pizza, a leading UK pizza delivery company, breaches sponsorship rules, despite the fact that no products that were high in fat, salt or sugar (HFSS) were shown in the credits.
Ofcom, the UK media watchdog, published rules in February 2007 concerning advertisements of HFSS foods to under-16s.
The National Heart Forum (NHF), an alliance of more than 60 UK organisations working to reduce the risk of coronary heart disease and related conditions, contacted Ofcom regarding Domino's Pizza's sponsorship of "The Simpsons." The NHF complained that Domino's Pizza "appears to be avoiding the restriction on HFSS advertising or sponsorship by simply not showing the pizza product during the sponsor's credits around the programme."
In response to the complaint, Ofcom requested a recording of "The Simpsons" from Jan. 30, 2008. This consisted of four recordings, back-to-back, between 19:00 and 21:00, with each episode containing four sponsorship credits. The credits featured one or more of the following - at least one person involved in the pizza order/delivery process, the sponsor's pizza packaging, the pizza case preparation and the sprinkling of pizza topping ingredients. The closing image contained the Domino's Pizza logo and the words "Domino's Delivery Service," followed by the website details and order telephone number. Each credit ended with a voice-over stating: "'The Simpsons' on Sky One with Domino's - the pizza delivery experts."Continue Reading...
On March 3, 2009, the Federal Communications Commission (“FCC”) released a Notice of Inquiry to implement the Child Safe Viewing Act of 2007 (“CSVA”), which directs the FCC to examine advanced parental control technologies that would be compatible with various communications devices and platforms.
The Federal Trade Commission staff will host a forum March 12, 2009 to gather input for its upcoming education program on advertising literacy for “tweens,” or kids who are 8 to 12 years old. At the forum, experts on advertising and marketing to kids will discuss a range of issues, including:
- What kids experience in the commercial world
- What kids understand about their experience
- Which consumer education efforts will help kids to navigate better in the commercial world
The goal of the campaign is to educate kids on how to be better-informed consumers of information.
Why this matters: We’re not sure yet who is speaking at the event, but our hope is that we’ll hear from those who can actually shed some light on this important marketing segment. CARU has long lumped kids under 12 into one basket, with some very strange results. For instance, not so long ago, CARU was bringing actions against movie studios for advertising “Harry Potter” and “Star Wars” during shows that were attractive to “tweens” on the grounds that they were meant for children 13 and over. Luckily, Wayne Keeley’s CARU has taken a turn toward reality and has involved the MPAA in making better determinations as to which movies are appropriate for kids advertising.
Thus, our hope is that this workshop will help demonstrate that older kids (in the 8-12 range) are very savvy both in terms of their emotional development and their maturity for purposes of distinguishing between advertising and editorial content. It would be a shame if the Commission puts up a series of paternalistic, anti-ad activists who think most kids should not be exposed to any commercial messages. We also hope that the workshop will focus on the key issue of “blurring” that impacts video game manufacturers, and anyone who uses advergames as a form of marketing to kids.
Florida-based travel promoter All in One Vacation Club, and its principals, agreed to pay civil penalties to the FTC of $275,000 for allegedly violating the Do-Not-Call list and other Telemarketing Sales Rule (TSR) provisions. The company used a direct mail sweepstakes entry to entice consumers to obtain a chance to win a vacation. The official rules purported to constitute consent by the entrant to be removed from any no-call registry for the specific purpose of allowing the sponsor to contact the entrant for marketing purposes. All in One took the position that the fine print of the official rules constituted a “written agreement” for purposes of compliance with the TSR, but the Commission disagreed. The FTC stated that any such written agreement must be “clear and conspicuous,” and must include the customer’s signature demonstrating the consumer’s assent. Stuffing the consent provision in the official rules of a sweepstakes wasn’t going to cut it.
Why this matters: This is not the first time a regulator has expressed concern about hiding in the official rules of a sweepstakes, language that would purport to give the sponsor the right to override the consumer’s decision to be placed on the Do-Not-Call list. Back in 2005, then New York Attorney General Eliot Spitzer challenged A&P grocery stores and Kitchen Magic, Inc. for virtually the same marketing practice. Promoters put all sorts of goodies in their official rules. Most of the time, these terms are construed as valid provisions in a contract between the consumer and the sponsor. But, when you seek to undermine a consumer’s statutory or regulatory right by virtue of the consumer’s entry into a promotional offer, watch out. Not only might the provision be unenforceable, but it could also be a violation of federal or state law. (See also Michigan’s Consumer Protection Act, §445.903(t).)
The self-regulatory group that monitors advertising aimed at children has issued new guidelines designed to ensure that advertisers do not mislead children into believing stationary toys can move on their own.
"Toys that do not move on their own, or cannot perform certain movements on their own, should not be portrayed in advertising in a manner that will lead children to take away the net impression that the toys move on their own," stated a new guidance released by the Children's Advertising Review Unit (CARU).
CARU's new guidance on "Advertising Depicting Movement of Stationary Toys" further states that "[w]hen a doll or toy that cannot move on its own is depicted as moving, there should be a clear and conspicuous appearance of a hand [or hands] (or a person) manipulating the doll or toy...
"Methods that contribute to a misleading impression about a toy's abilities include the use of stop-action, quick cuts interspersed with animation, disguised or inconspicuous hand manipulation and other techniques," the guidance noted.
An example of an ad that would not comply with the guidance, according to CARU, would be a commercial for a stationary doll depicting several dolls dancing to music, which includes brief shots of fingers moving the dolls, but the fingers blend with the flesh colors of the dolls and are not noticeable during ordinary viewing. The commercial would not be brought into compliance by including a disclaimer at the end of the commercial stating that the dolls do not move on their own, CARU said.
The Children's Advertising Review Unit (CARU) has recommended that the popular Build-A-Bear Workshop modify or discontinue price advertising claims, which the self-regulatory group says may confuse children.
CARU objected to a commercial, which the organization said it spotted through its own monitoring of advertising directed to children, that showed a child at a Build-A-Bear store choosing a stuffed monkey, clothing and accessories. The announcer stated, "You can make a new furry friend starting at $10 and continue the adventure at Buildabear.com." Though the bear initially appeared unclothed, and a large video disclosure stated that animals start at $10, the bear later was shown to be wearing a shirt, shorts, sunglasses and sneakers.
"CARU concluded that a child could reasonably believe that any fully clothed and accessorized animal would cost $10, although the monkey depicted cost $18 and outfitting the animal similar to the one depicted would cost approximately $40," the organization stated.
The advertiser noted that the commercial in question had run its course, but said it would consider CARU's concerns in future advertising.
Read about CARU's decision at caru.org.
Good news for parents worried about all that time their teens spend online: It turns out that that time isn't a waste-and can be beneficial, according to a new study. The MacArthur Foundation-long known for its generous funding of public television-reports that young people pick up key skills by participating in digital media.
"It might surprise parents to learn that it is not a waste of time for their teens to hang out online," said Mizuko Ito, a University of California Irvin researcher who is the lead author of the MacArthur-backed report. "There are myths about kids spending time online-that it is dangerous or making them lazy. But we found that spending time online is essential for young people to pick up the social and technical skills they need to be competent in the digital age."
The MacArthur Foundation claims its report is the most extensive U.S. study on teens and their use of digital media to date. Ito's team spent three years interviewing more than 800 young people and their parents, and spent more than 5,000 hours observing teens interacting on social networking sites, video sharing and other sites. The study was supported by the foundation's $50-million digital media and learning initiative.
Read about the report at macfound.org.
Read news coverage of the report at nytimes.com.
A ban on fast-food advertising in the United States could reduce the number of overweight children by as much as 18 percent, according to a study conducted for the National Bureau of Economic Research.
The study, funded by the National Institutes of Health, is being published in the University of Chicago's Journal of Law and Economics. Led by a professor from Lehigh University, researchers measured the number of hours of fast-food television advertising messages viewed by children on a weekly basis.
Lehigh University Professor Shin-Yi-Chou and her colleagues found that a ban on fast food advertisements during children's programming would reduce the number of overweight children aged 3-11 by 18 percent, and lower the number of overweight adolescents aged 12-18 by 14 percent.
Though the researchers concluded an advertising ban would be an effective method of reducing the number of overweight children, they also questioned whether such onerous government involvement and the costs of implementing such policies made an advertising ban a practical option in the United States.
Children who are obese or who have high cholesterol also show early signs of heart disease, according to a new study. Results of the study were unveiled at a recent American Heart Association conference. The study, conducted by researchers from the University of Missouri Kansas City School of Medicine, has not yet been published.
The study was small, involving 70 children ages 6 to 19, and experts said the results would need to be replicated to be considered conclusive. But the researchers' method of measuring artery wall thickness, using ultrasound technology, is considered to be a reliable indicator of heart disease risk.
"I think this is a red flag," said the study's lead author, Dr. Geetha Raghuveer, a cardiologist and associate professor of pediatrics at the University of Missouri Kansas City School of Medicine. "These kids are more similar to middle-aged adults."
The study is considered by many to be part of a growing body of research that childhood obesity in the United States likely will result in increased incidents of heart disease as children age.
Read more about the study and surrounding issues at nytimes.com.
As regulators push website operators to adopt age verification technology to protect children from inappropriate content and social contact with adults, a new opportunity has arisen for advertisers.
Nancy Willard, who calls herself an expert on Internet safety, says age verification companies are using information gained from seeking to verify children's ages to target them with advertising. She points to California-based eGuardian, which solicits personal information concerning children from parents-including kids' birthdates, as well as their addresses, schools and genders. The company then offers schools the entire $29 sign-up fee collected from parents for every parent the school steers to the site.
The company's business plan is to solicit websites that are willing to pay a commission for each eGuardian member, which would allow them use the data collected to tailor their advertising. eGuardian Chief Executive Ron Zayas notes that parents are provided with the choice to opt out of having data shared with advertisers, and says the privacy concerns are a "tradeoff."
"When children go to Web sites today, they are already exposed to ads," Zayas said. "We make sure the ads are appropriate for children. We do not increase the volume of ads shown, nor do we ‘sell them out' in any way to advertisers."
Read more about the controversy at nytimes.com.
Between 500 and 600 U.S. school districts have instituted nutritional policies limiting foods deemed to be high in fat, salt and sugar. That's according to a research scientist at the Institute for Health Research and Policy at the University of Illinois at Chicago.
The widespread curbing of snacks in school has some kids pining for the old days.
"I know obesity is a big problem, and it's good the school cares," high school senior Sam Cardoza told The New York Times recently. "At the same time, you shouldn't stop a kid from buying a cookie."
California's nutrition standards limit snacks sold in schools during the day to those that contain no more than 35 percent sugar, and that derive no more than 35 percent of their calories from fat. Sodas will be banned from schools beginning next year. Regulations such as those being implemented in California have brought traditions such as school bake sales and birthday celebrations to a screeching halt.
"I don't think all celebrations need to be around food," said Ann Cooper, the director of nutrition services for the Berkley School District. "We need to get past the mentality of food used for punishment or praise."
The reduction in calories at school does not mean, as some feared, that kids would rush home and raid the fridge. According to the Rudd Center for Food Policy and Obesity at Yale, children do not compensate for the loss of sugar and fat-laden foods at school by increasing their intake of such goodies at home.
"People really do eat what's in front of them," explained center Deputy Director Marlene B. Schwartz.
Read more about the issue at nytimes.com.
A Federal Communications Commission official is pushing a proposal to ban interactive ads targeting children. FCC Commissioner Jonathan S. Adelstein's call for regulation came amid the latest in a series of public meetings to address childhood obesity and its alleged link to food advertising.
"With the growing convergence of TV and the Internet, we need to set the rules before interactive advertising becomes an established business model," Commissioner Adelstein stated, speaking at the Vanderbilt Forum on Pediatric Obesity in October. The FCC "tentatively" concluded in 2004 that interactive ads targeting children should be banned, he noted. "[W]e need to act quickly ... to implement sensible restrictions on interactive ads targeting children."
Commissioner Adelstein dished up some harsh criticism of the food marketing industry. "The facts show that a vast majority of the food marketed to children are high in calories, high in sugar or salt, and low in nutritional value," he stated. He pointed to the recent campaign for Frosted Flakes featuring Olympian Michael Phelps. "Trying to make Frosted Flakes this generation's ‘breakfast of champions' is symptomatic of this age of hyper-commercialism, which has contributed to childhood obesity."
Parents feel inundated by the "seemingly relentless march of material that is too commercial, unhealthful, violent, or sexual for their children," charged Commissioner Adelstein, himself a parent. In addition to banning interactive marketing efforts (such as TV ads that point kids to websites), Commissioner Adelstein suggested the FCC should clarify its guidelines concerning what constitutes "educational content" for purposes of children's television regulations, and allocate resources toward educating the public on health and media issues.
FCC Commissioner Deborah Taylor Tate, who also spoke at the Vanderbilt conference, did not call for regulation but instead urged the private sector to continue to make self-regulatory strides. A member of the public-private Joint Task Force on Childhood Obesity, Commissioner Tate noted with approval efforts such as the Children's Food and Beverage Advertising Initiative, under which advertisers voluntarily agree to limit their advertising to primarily healthier food and beverage products.
Read more about the issue at broadcastingcable.com.
In the face of federal disagreement as to whether the chemical bisphenol A (BPA) threatens the health of babies and young children, several state attorneys general have taken the matter into their own hands, and have asked baby product manufacturers to stop using the controversial chemical.
Connecticut Attorney General Richard Blumenthal, joined by the AGs of New Jersey and Delaware, sent a letter in October to 11 companies that manufacture baby bottles and formula, asking them to cease using BPA in their bottles and formula container liners.
"I am alarmed by recent studies confirming that BPA leaches from these products into the foods they hold," Blumenthal stated in the letters, which were sent to baby bottle manufacturers Advent, Disney First Years, Gerber, Dr. Brown, Playtex and Evenflo, as well as formula makers Abbott, Mead Johnson, PBM Products, Nature's One and Wyeth.
"Credible, escalating laboratory evidence demonstrates that even low dose exposure to BPA causes serious damage to reproductive, neurological and immune systems during the critical stages of fetal and infant development," the letter stated. "The preventable release of a toxic chemical directly into the food we eat is unconscionable and intolerable."
The AG's action comes at a time when the federal government appears to be at odds over how serious a threat is presented by the presence of BPA, which is used to harden plastics, and is contained in liners of canned goods.
In September, the National Toxicology Program of the National Institutes of Health released a report that concluded there is "some concern" that exposure to BPA can adversely affect development in fetuses and children. But this summer, the Food and Drug Administration stated that its data did not support the need to tighten safety standards regarding BPA content in children's products.
Read a summary of the state AG's action at ct.gov.
View the FDA's draft report at fda.gov.
The Canadian government has announced it will ban the use of bisphenol A (BPA) in baby bottles, becoming the first government worldwide to take such action. The government immediately will begin drafting regulations to ban the importation, sale and advertising of baby bottles that contain the controversial chemical.
The government's confirmation of the BPA baby bottle ban follows an announcement last year in which the Canadian government warned of its intentions.
"Today's confirmation of our ban on BPA in baby bottles proves that our government did the right thing in taking action to protect the health and environment for all Canadians," stated Canada's Environment Minister John Baird.
The government conceded that according to its scientific assessments, BPA exposure experienced by newborns and infants is below levels likely to cause health effects. "[H]owever, due to the uncertainty raised in some studies relating to the potential effects of low levels of bisphenol A, the Government of Canada is taking action to enhance the protection of infants and young children," the government stated in a release.
The main sources of exposure to BPA among babies is thought to be from bottles containing BPA, which can leach some of the chemical, particularly when they are heated, and infant formula cans with BPA-containing liners.
The Canadian government's decision comes shortly after an arm of the U.S. National Institutes of Health (NIH) concluded that there is "some concern" that exposure to BPA can adversely affect the development of fetuses and young children. The U.S. Food and Drug Administration, however, has determined to the contrary that there is not sufficient evidence to justify tightening BPA-related regulations.
The Grocery Manufacturers Association called the Canadian government's decision "disproportional to the risk determined by public health agencies." The food and beverage industry "will continue to evaluate the safety of BPA for infants [and] children," the group stated.
Read about the Canadian government's decision at hc-sc.gc.ca.
Read the Grocery Manufacturer Association's response at gmabrands.com.
Read about the report on BPA issued by the National Toxicology Program of the NIH at niehs.nih.gov.
View the FDA's draft report at fda.gov.
The melamine nightmare appears to have arrived in North American in time for Halloween. The Canadian government has issued a recall of Pirate's Gold Milk Chocolate Coins, distributed by Sherwood Brands and sold by Costco.
The U.S. Consumer Product Safety Commission has issued no similar recall.
"This product is being recalled due to positive test results for melamine," stated the Canadian Food Inspection Agency (CFIA). The Gold Coins were sold nationally through Costco, and also may have been sold in bulk packages individually at other dollar and bulk stores, the CFIA warned.
Melamine is the chemical linked with children's deaths and illnesses following contamination of milk and milk products in China, as well as pet deaths and illnesses following contamination of pet food. Melamine is widely used for industrial purposes, but also can be used to spike food products to artificially inflate protein content.
In China, the melamine scare was ratcheted up even further by news that food inspectors found eggs contaminated with high levels of melamine. An estimated 50,000 children in China have been sickened from melamine contamination, and four reportedly have died.
Read about the Canadian recall at inspection.gc.ca.
Read about the egg contamination in China at nytimes.com.
Children under the age of 4 should not be given over-the-counter (OTC) cold remedies, according to new labeling being prepared by leading cold medicine manufacturers.
The manufacturers of medicines sold under brands such as Dimetapp, Pediacare, Robitussin, Triaminic and Little Colds have agreed to voluntarily change their labels to state "do not use" for children under 4. In addition, manufacturers of products containing antihistamines will add language to their labels warning parents to refrain from using these medications to induce drowsiness in young children.
The changes came following consultation with the Food and Drug Administration, which earlier this year recommended that children younger than 2 years old should not be given cold medications.
Children's cough and cold medications are safe and effective when used as directed, stressed the Consumer Healthcare Products Association (CHPA), the trade group that announced the voluntary labeling changes. "Research shows that dosing errors and accidental ingestions-not the safety of the ingredients themselves when properly dosed-are the leading causes of rare adverse events in young children," the CHPA stated.
Indeed, a study by the Centers for Disease Control and Prevention, which concluded that thousands of young children are hospitalized annually after ingesting cough and cold medicine, also determined that the vast majority of children hospitalized had taken medication while unsupervised.
Read about the labeling changes at chpa-info.org.
View news coverage concerning the change at apnews.excite.com.
The Children's Advertising Review Unit (CARU) has referred two cases to the Federal Trade Commission because the advertisers failed to substantively respond to its inquiries.
CARU examined advertising for the "Spray Racer," a toy vehicle powered by water and air that is compressed when a child manually pumps a holding tank. CARU questioned whether a TV commercial showing a child pumping once to launch the car at a speed of 272 scale miles per hour was an accurate reflection of the product's performance.
The self-regulatory group asked the advertiser, Summit Products, whether substantial pumping was in fact required to maintain the speed depicted. When the advertiser did not respond, CARU referred the matter to the FTC.
CARU also referred to the FTC a case involving the website www.virtualfamilykingdom.com after the company that operates the site allegedly did not respond to CARU's inquiry regarding apparent failures to comply with the Children's Online Privacy Protection Act of 1998 (COPPA).
OFCOM, the UK media regulator, published rules regarding advertising food and drink products to children.
A consumer watchdog in the UK, Which?, has said that the rules, which aim to curb advertising foods assessed as high in fat, salt and sugar ("HFSS") to children, are not working.
Which? conducted a two-week analysis and found adverts for products such as Coca-Cola, which reportedly contains 13 teaspoons of sugar per 500 ml, and Kellogg's Coco Pops, which is more than one-third sugar, were broadcast during programmes popular with children and were not caught by recent restrictions.
The OFCOM rules state that adverts for HFSS foods are not allowed to be shown in or around programmes of particular appeal to under-16s. If the proportion of those under 16 watching a programme is 20 percent higher than the general viewing population, then the programme is considered to be of particular appeal to under-16s.
Which? revealed through its report that none of the programmes with the five highest child audiences is covered by the restrictions imposed by OFCOM in January.
Therefore, while shows such as "The Simpsons" and "SpongeBob Square Pants" are caught by the rules, other shows such as "Beat The Star" and "Animals Do The Funniest Things" are not, despite being watched by thousands more children.
According to the two-week analysis conducted by Which?, "Animals Do The Funniest Things," a home video show where viewers send in amusing clips of their animals, was viewed by 370,600 children under 16, and included adverts for Cadbury's Creme Egg Twisted, Maryland Chocolate Chip Cookies, Nachos and Kraft's Dairylea Dunkers.
By contrast, "Shaggy and Scooby Doo get a clue" and "SpongeBob Square Pants", which are both caught by OFCOM's restrictions, did not have adverts for HFSS foods.
Which? food campaigner Clare Corbett said, "The ad restrictions may look good on paper but the reality is that the programmes most popular with children are slipping through the net. If these rules are going to be effective, then they have to apply to the programmes that children watch in the greatest numbers."
Chief executive of the Advertising Association, Baroness Peta Buscombe, called the Which? report "sensationalist, unconstructive and missing the point." She added, "Their list includes programmes clearly not aimed at children and films screened after 10 p.m. There clearly has to be an element of parental responsibility on which programmes they allow their children to view."
A Department for Culture, Media and Sport spokesman said, "Although children still see some of these advertisements, the current OFCOM regulations mean that the viewing of these adverts by children is reduced by an estimated 50%, an impressive amount. We appreciate that there are calls for further restrictions on UK TV advertising but these should be considered once we have had a chance to assess the impact of current measures."
OFCOM is set to report on the success of its restrictions in December this year.
Concerns over Chinese exports again dominated the headlines following reports that four infants in China had died from formula made with milk contaminated with melamine. Some 53,000 children were sickened by contaminated milk products.
Melamine is the same chemical that earlier was found to have been mixed with pet foods linked with thousands of pet deaths in the United States, prompting massive pet food recalls. Melamine is used for industrial purposes such as leather tanning, coatings and laminates, wood adhesives, fabric coatings, ceiling tiles, and flame retardants.
Inspectors from the Chinese government found that more than 20 Chinese dairy farms and plants had diluted milk and added melamine so their products would appear to have higher protein levels. Eighteen people were arrested in connection with the scandal.
Following reports of the contamination, much of Asia, including Indonesia, the Philippines, Malaysia, Singapore, South Korea and Vietnam, banned the import of Chinese milk products. The scare spread from milk products to food products that contain milk powder and milk protein. The British supermarket chain Tesco reported that samples of White Rabbit Creamy Candies in New Zealand were found to have unacceptably high levels of melamine, and the chain removed the candies from its shelves worldwide.
While the EU does not import milk or other diary products from China, the EU barred imports of any products from China containing more than 15 percent milk powder.
In the United States, there have been no reports to date of contaminated milk products from China. The U.S. Food and Drug Administration focused its investigations on Asian food stores in areas with large Chinese communities, such as Los Angeles, San Francisco, Seattle and New York. "To date, investigators have visited more than 1,000 retail markets and have not found Chinese infant formula present on shelves in these markets," the FDA reported. The agency has broadened its search for other food items imported from China that may contain milk or milk proteins.
Read about the EU's ban of products containing Chinese milk powder at news.bbc.com.uk.
Read about the FDA's investigation into the melamine contamination at fda.gov.
Read more about the issue at iht.com.
France's broadcast authority has forbidden French channels from promoting television shows aimed at children under 3 years old. In addition, cable operators that air foreign channels with programming for babies are required to broadcast warnings stating: "Watching television can slow the development of children under 3, even when it involves channels aimed specifically at them."
The new rules, issued by the High Audiovisual Council, are aimed at the introduction of foreign tot-devoted programming such as BabyFirstTV and Baby TV, both of which can be viewed via cable in France.
"Television viewing hurts the development of children under 3 years old and poses a certain number of risks, encouraging passivity, slow language acquisition, over-excitedness, troubles with sleep and concentration, as well as dependence on screens," the Council stated.
BabyFirstTV, launched in the United States in 2006, has ratcheted up the debate over TV programming for the very young. The American Academy of Pediatrics says babies should not be exposed to television at all. The Campaign for a Commercial-Free Childhood filed a complaint against BabyFirstTV with the Federal Trade Commission more than two years ago, accusing the channel of false and deceptive marketing. CCFC says it still is waiting for the FTC to rule on its complaint.
For its part, BabyFirstTV defended its product. "BabyFirstTV transforms traditional TV into an interactive and educational tool that relies on the television as a medium to deliver high-quality programming and an engaging experience for both baby and parents," the company said on its website.
Read about CCFC's response to the French marketing ban at commercialfreechildhood.org.
Read what others have to say about the marketing ban at ecochildsplay.com.
View BabyFirstTV's website at babyfirsttv.com.
Two infants were strangled to death in Simplicity brand close-sleeper-style bassinets, after their bodies slipped under a metal bar that runs along the portion of the bassinet that can be opened, but their heads remained stuck under the bar, the Consumer Product Safety Commission reported. Those deaths prompted the CPSC to issue a warning urging parents and caregivers to cease using Simplicity 3-in-1 and 4-in-1 bassinets that allowed for fabric covering the bar at issue to be folded down to create a co-sleeping position.
The CPSC issued the safety alert because SFCA Inc., which purchased all of Simplicity Inc's assets at a public auction in April, refused to recall the models at issue, the CPCS said. SFCA, an affiliate of the private equity fund Blackstreet Capital Partners, LLC, "maintains that it is not responsible for products previously manufactured by Simplicity Inc," the CPSC stated.
Following the CPSC's alert, six major retailers agreed to stop sale and to recall nearly 900,000 of the Simplicity bassinets identified to be dangerous. Some of the recalled bassinets included Graco and "Winnie the Pooh" brands as well, the CPSC later announced.
The bassinet recall was followed with more bad news for the Simplicity brand. In September, the CPSC announced the recall of 600,000 Simplicity drop-side cribs because of a "serious entrapment and suffocation hazard." Sizing problems with the crib's hardware can cause the drop side to come off its tracks, detach, and create a dangerous gap, the CPSC said.
This time, SFCA cooperated in the recall, according to a notice on Simplicity's website.
The recalls this fall follow the recall of 1 million Simplicity cribs in September 2007 because of failures that resulted in infant deaths, according to the CPSC. Two deaths occurred when the drop side of the cribs were installed upside down.
Read corporate information regarding the crib recall at simplicityforchildren.com.
Read about the purchase of Simplicity's assets at reuters.com.
When it comes to the risk posed by bisphenol-A (BPA), the chemical used to make hardened plastic containers such as baby bottles, liners for canned goods, and other plastic items, government officials can't seem to agree.
In September, the National Toxicology Program (NTP), which is part of the National Institutes of Health, released a report concluding that there is "some concern" that exposure to BPA can adversely affect development of the prostate gland and brain, and may cause behavioral effects in fetuses and children.
"There remains considerable uncertainty whether the changes seen in the animal studies are directly applicable to humans, and whether they would result in clear adverse health effects," stated NTP Associate Director John Bucher. "But we have concluded that the possibility that BPA may affect human development cannot be dismissed."
The scarce data leaves consumers in the lurch, conceded Michael Shelby, Director of the NTP's Center for the Evaluation of Risks to Human Reproduction. "Unfortunately it is very difficult to offer advice on how the public should respond to this information," Dr. Shelby stated. "More research is clearly needed ...If parents are concerned, they can make the personal choice to reduce exposures of their infants and children to BPA."
But this summer, the Food and Drug Administration issued findings of its own, and appeared to land on the other side of the fence. The FDA issued a "Draft Assessment" of the use of BPA in food-related products in which it said its data did not support a need to upgrade safety standards: "FDA has concluded that an adequate margin of safety exists for BPA at current levels of exposure from food contact uses."
Nonetheless, the FDA pledged to consider the NTP's recent conclusions, and agreed with the call for further research. The diverging opinions at the federal level may invite state action; The New York Times noted that some states are considering bills to restrict the use of BPA in children's products.
View the FDA's draft report at fda.gov.
Toys ‘R' Us has announced a series of tightened safety standards for toys and cribs. The announcement follows a series of massive recalls in recent years.
The new requirements provide for general increased quality assurance standards and oversight, including increased frequency of third-party testing, and standards regarding the allowable amounts of lead that can be contained in coatings and toy materials.
The retailer also issued enhanced crib-testing standards, which go beyond federal regulations, and include specifications for wood density and types, and measurements for crib rail spindles, among other requirements.
In addition, by the end of 2008, Toys ‘R' Us no longer will carry toys that are made by adding phthalates and polyvinyl chloride to them, the retailer said. Similarly, the toy store will phase out sales of baby bottles that contain bisphenol-A (BPA) by the end of the year.
Read more about Toys ‘R' Us safety standards and practices at toysrus.com.
Read more about the issue at chicagotribune.com.
The Children's Advertising Review Unit (CARU) has referred ads for yet another PG-13 movie to the Motion Picture Association of America (MPAA) for being advertised during children's programming. The move is the latest in what appears to be an increasingly tense stand-off between CARU, the advertising industry's self-regulatory arm, and the motion picture industry.
CARU said it referred TV advertising for the Warner Bros. film, "Sisterhood of the Traveling Pants 2" to the MPAA for being shown on Nick 1 during children's programming. The movie was rated PG-13 by the MPAA for "Mature material and sensuality," noted CARU. Similarly, CARU has referred ads to the MPAA for PG-13 rated movies such as "The Incredible Hulk," "Indiana Jones," "Get Smart," "The Mummy: Tomb of the Dragon Emperor" and "The Rocker" for being shown during kids' shows.
CARU's Self-Regulatory Program for Children's Advertising states that advertisers "should take care to assure that only age appropriate videos, films and interactive software are advertised to children, and if an industry rating system applies to the product, the rating label is prominently displayed."
The referrals fall under an agreement struck by CARU and the MPAA, which cover ads for films rated PG-13, R or NC-17 that run in any medium primarily directed to children under 12. CARU agreed to first attempt to determine whether an ad placement was intentional, and if it was found to have been unintentional, to ask the advertiser to pull its ad and ensure the placement did not reoccur.
If an ad placement in children's media was deemed to have been intentional, CARU agreed to refer the matter to the MPAA Advertising Administration, which pledged to determine whether the film at issue "is appropriate to be advertised to children."
Just before the market melt-down captured the attention of Congress, a subcommittee of the Senate Appropriations Committee held the latest in what has become a series of hearings on the state of food marketing to children and its links to the obesity epidemic.
In testimony that reads much like students reporting on the progress of long-term research assignments, the various constituencies-regulators, industry representatives and advocates-weighed in. Presiding was Sen. Tom Harkin (D-Iowa), who convened the public-private Joint Task Force on Media and Childhood Obesity, and who chairs the Appropriations subcommittee on Labor, Health and Human Services, Education and Related Agencies.
In testimony that mirrored a report submitted to the subcommittee in July, Federal Trade Commission Commissioner Jon Leibowitz cited with approval the food industry's self-regulatory efforts through an initiative established by the Council of Better Business Bureaus (CBBB). Under the CBBB initiative, participating companies develop individual pledges to limit their advertising to young children to healthier foods.
"Under the right circumstances, industry-generated solutions have the potential to address a public health problem of this magnitude quickly, creatively, and flexibly," Commissioner Leibowitz stated.
However, Patti Miller, Vice President of Children Now, disagreed as to the effectiveness of the CBBB initiative. "The initiative is insufficient for three main reasons," she stated. She cited the lack of uniform nutritional standards defining healthier foods and beverages, a "loop hole" that allows companies to advertise "better for you" foods that contain reduced amounts of sugar and fat, but are nonetheless not healthy, and the lack of participation by media companies.
Some media companies have taken steps to limit advertising to healthier foods, restrict licensing of their popular kids' characters to healthier foods, and provide healthy lifestyle messaging, testified Federal Communications Commission Chairman Kevin J. Martin.
Nonetheless, Chairman Martin also pronounced himself "disappointed in those media companies [that have] made no solid commitments in these areas." He cited the UK's communications authority, Ofcom, which has banned advertising of high fat, salt and sugar (HFSS) foods and beverages to children on children's television channels.
"While it was-and always is-my hope that we will not have to resort to actual requirements, and I strongly encouraged the media companies to propose some voluntary limitations on advertising targeting our children, in the end no widespread voluntary commitment on behalf of the media industry was forthcoming," he said.
Access the hearing testimony at appropriations.senate.gov.
Read more about the issue at startribune.com.
Read previous KidAdLaw coverage about the FTC's food marketing report.