1. BIGGER | law ( by Patrick Whalen )
S M A R T S T R AT E G I E S
of marketers for failing to take the
Small Talk Can proper steps to verify a parent’s consent.
The FTC also is seeking to broaden
application of COPPA to address other
emerging technologies.
Be Big Trouble Social Networking
In September, the FTC announced
proposed amendments to COPPA to
Special rules apply when directing marketing efforts at children. address mobile devices, social network-
ing and interactive gaming. These rules
would also restrict location gathering and
A dvertising law generally gives
marketers broad latitude in crafting
campaigns. But the rules are tighter when
Nutritional Claims
The FTC has taken an acute interest in
challenging nutritional claims for foods
behavior-targeted advertising. Among
other requirements, the parental consent
protocol of COPPA would be required
children are the intended audience. Many directed to children, and earlier this year of all social media. The FTC also has
marketing campaigns and tactics that led an interagency working group to launched efforts to scrutinize smart
would be lawful when directed to adults formulate principles for the marketing of phone apps marketed to children.
may be troublesome when food to children.
directed to children. Now This self-regulatory Best Practices
there are efforts to apply Campaigns directed effort would include Potential challenges by these gatekeepers
this stronger regulation to to children are moni- a range of limita- can be addressed by following a number of
all forms of social media tions on any media sound principles, including:
tored by state and
directed to children. campaign market- » Disclose all data collection efforts,
federal regulators. including third-party efforts.
ing food to children.
The Gatekeepers Specifically, the » Seek parental consent for all data
Whether in print, televi- effort would seek to collection efforts.
sion or over the Internet, campaigns limit the advertising of foods which have a » Avoid the creation of unrealistic
directed to children are monitored by “negative impact on health or weight.” expectations of product quality
state and federal regulators, industry or performance.
self-regulating organizations and Online Activities » Separate the advertising material
consumer groups. The Children’s Online Privacy Protec- from program content.
The Federal Trade Commission is the tion Act (COPPA) applies to commercial » Develop and maintain adequate
primary agency charged with regulating websites directed to children. The key substantiation for any objective
and monitoring advertising, including provisions of COPPA relate to whether claim made in the advertising
advertising intended for children. The the website collects any personally-iden- (substantiating the claim for the
FTC has wide discretion in challenging tifiable information, such as name, ad- first time after the fact is tantamount
marketing campaigns it deems unfair or dress, e-mail address, telephone number, to making a false claim).
deceptive in any regard. social security number, etc. Child-orient-
The Children’s Advertising Review Unit ed websites should avoid extracting any
(CARU) of the Council of Better Business personal information about any visitor
Bureaus and consumer protection groups to the website to avoid COPPA require-
also seek to police such campaigns. For ments. If a website does collect personal
Patrick Whalen is a partner at Spencer,
example, a consumer watchdog group information, the website owner must Fane, Britt and Browne in Kansas City.
recently filed a complaint before the FTC include a privacy notice on the site and (816) 292-8237 //
against PepsiCo for allegedly “developing obtain verifiable parental consent before pwhalen@spencerfane.com
covert advertising campaigns” around collecting any personal information from
video games, sports and social networking. children. The FTC has pursued a number
Reprinted with permission of Thinking Bigger Business Media, Inc. ©2012, all rights reserved.
VOL. 21 // ISSUE 1 // JANUARY 2012