ADventures in Law

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The Association of National Advertisers (ANA) Masters of Advertising Law Conference took place in sunny Orlando, Florida – aka The Happiest Place on Earth. And what a fitting location to discuss the flurry of activity in the children’s advertising space. Children’s advertising has had quite a year, and the panels at ANA covered the news expertly. The Federal Trade Commission (FTC) has been active with the Stealth advertising report and the update to the Endorsement Guides. The Children’s Advertising Review Unit (CARU) announced new guardrails aimed at protecting children in the metaverse. The Children’s Online Privacy Protection Act (COPPA) continues to loom large, with enforcement actions and the specter of “COPPA 2.0” hanging around in the background. Artificial intelligence (AI) was a HUGE focus of every panel and appeared in several of the children-focused presentations. The following are more details about the child topics that were raised at the conference.&nbsp;

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The Federal Trade Commission:

What in the Endorsement Guides has changed? The revised <a href="https://www.federalregister.gov/documents/2023/07/26/2023-14795/guides-concerning-the-use-of-endorsements-and-testimonials-in-advertising" target="_blank" rel="noreferrer noopener">Endorsement Guides</a> were issued in the summer of 2023 and added a new principle related to children. The FTC explains that practices that would not be questioned by adults may be questioned when directed to children. The FTC goes on to say, “Research on children’s cognitive development suggests disclosures will not work for younger children.”

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What is the Stealth Advertising Report? Over the summer, the FTC staff issued the stealth advertising <a href="https://www.ftc.gov/reports/protecting-kids-stealth-advertising-digital-media-ftc-staff-perspective" target="_blank" rel="noreferrer noopener">report</a> titled “Protecting Kids from Stealth Advertising in Digital Media: A FTC Staff Perspective.” The FTC staff advised marketers to avoid blurring content and advertisements and to provide prominent just-in-time disclosures.

What data is covered by COPPA? Recent enforcement actions by the FTC have shown that the FTC interprets the definition of personal information incredibly broadly. In one settlement over the summer, the FTC’s complaint highlighted that avatars generated from a child’s image can be covered under the COPPA rule.

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What are the metaverse guardrails? On October 3, 2023, CARU released new <a href="https://bbbprograms.org/media-center/prd/metaverse-guardrails-child-directed" target="_blank" rel="noreferrer noopener">Guardrails for Child-Directed Advertising and Privacy</a> in the metaverse. These guardrails are designed to provide realistic and actionable recommendations to companies when developing experiences directed to children.

What key takeaways are in the guardrails? CARU, reiterating the concerns of the FTC’s Stealth Advertising report, highlighted the dangers of “blurring” in the metaverse. CARU states that due to the pervasive nature of the metaverse, it poses a unique threat for blurring. Advertisers should take special care to ensure children understand what experiences in the metaverse are and are not advertising. CARU recommends using language that is clear and easy for children to understand, so that children can clearly tell when they are engaging with an advertisement.&nbsp;

What should advertisers keep their eyes on for the next year?

COPPA 2.0: Currently stalled in Congress, <a href="https://www.markey.senate.gov/news/press-releases/senators-markey-and-cassidy-reintroduce-coppa-20-bipartisan-legislation-to-protect-online-privacy-of-children-and-teens" target="_blank" rel="noreferrer noopener">proposed legislation</a> would seek to expand some of the COPPA requirements to teenagers. The most recent iteration of the bill would also seek to ban targeted advertising to children and teens, and to create an “eraser button” to allow children and teens to eliminate personal information.

Children Influencer Laws: Hearkening back to the Coogan laws passed in the 1930s, several states are seeking to pass laws to require that a percentage of money earned by child influencers be held in a trust until they turn 18. In Illinois, child influencers under the age of 16 must have a portion of earnings made from videos that include their likeness, name or photograph set aside in an account for when they turn 18.

Artificial Intelligence: Nearly every panel at ANA featured some discussion of AI. This will surely be an area to watch to see how AI can be leveraged in children’s advertising and what issues and concerns may be generated.&nbsp;

The View from the ANA Kids Table [ANA Children’s Advertising Recap]