Adlaw By Request : Advertising & Marketing Lawyer & Attorney : Reed Smith Law Firm : AdLaw By Request & KidAdLaw

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.

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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.

Conference Location
The W New York Hotel
541 Lexington Avenue, New York, NY

For general questions regarding this conference please contact:
Reshma Persaud
Marketing Coordinator
212-705-0113
rpersaud@narc.bbb.org

For more information and to register, go to www.narcpartners.org.

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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.

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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.

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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.

Read CARU's press release on the guidance and view CARU's guidance at caru.org.  

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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).

Upon reviewing the site, CARU noted that it had an option whereby personal information could be collected from children without first obtaining parental permission, and that the site failed to include offline contact information, as required by COPPA. In addition, the posted privacy policy did not conform to actual practices on the site, CARU claimed.

View a summary of the "Spray Racer" case and of the Virtual Family Kingdom case at caru.org.

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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."

Read previous KidAdLaw coverage of the issue:  "CARU Rulings: Movie Referrals", "CARU Rulings: Movie Referrals" and "CARU Strikes Agreement With MPAA".

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