Young children are one of the most vulnerable demographic groups when it comes to advertising. In an effort to protect young children from deceptive, deceptive and inappropriate advertising, the National Advertising Review Council established the Children’s Advertising Review Unit (“CARU”) in 1974 as a self-regulatory program designed to promote responsible advertising for children. CARU is administered by the Council of Better Business Bureaus and governed by a set of standards that take into account children’s susceptibilities (i.e. inexperience, immaturity, lack of cognitive skills to assess advertising, etc.). CARU creates guidelines based on these standards and periodically updates these guidelines to meet the ever-changing marketing landscape. CARU uses these guidelines to review and assess advertising of all kinds for veracity, accuracy, relevance and sensitivity exclusively as it relates to children.
CARU last updated its guidelines in 2014. Since 2014, the world of advertising has changed dramatically. For example, we have seen the meteoric rise of TikTok; Instagram’s popularity has exploded from around 200 million users in 2014 to over 1.3 billion users in 2020;[i] influential celebrities becoming a central pillar of advertising; the unprecedented growth of unique forms of advertising in mobile applications and in video games; and the birth of the “metaverse”. In addition, recent years have seen a movement for diversity and inclusion in all forms of corporate and social governance, including advertising.
In response to the growing importance of these new, immersive forms of advertising to children, CARU recently updated its Guidelines for Advertising to Children. The changes to the guidelines directly reflect the new online and digital direction in children’s advertising that has flourished over the past decade, with changes in digital media, influencer marketing and in-app advertising. and games, among other updates. The new CARU guidelines came into effect on January 1, 2022.
What has changed in the 2022 CARU Guidelines on Advertising to Children?
Before delving deep into the changes, it makes sense to start with something that hasn’t changed: the basics of the CARU Guidelines on Advertising to Children. These principles continue to focus on CARU’s fundamental objective of ensuring truthful and clear advertising that does not depict or promote behavior that is inappropriate or harmful to children. The guidelines also continue to espouse what CARU calls the “special responsibility” that advertisers have towards children who have limited knowledge, experience, sophistication and maturity.
With the basics unchanged, updated CARU guidelines include five key changes marketers should keep in mind when creating ads aimed at children.
“Children” means under 13 years old
In what may be the biggest change in the guidelines, CARU has broadened the scope of the guidelines to apply to all advertising “primarily directed” to children under the age of 13. Previously, the guidelines covered advertising primarily aimed at children under the age of 12.
To help marketers determine when advertising is “primarily directed” to children under 13, CARU has clarified the factors it will take into account in making that decision. Specifically, CARU will consider the following factors, none of which is critical: (1) the subject; (2) visual or audio content; (3) the use of animated child-centered characters, child-centered activities or prompts; (4) the age of the models; (5) presence of famous children who appeal to children; (6) language or other characteristics; (7) competent and reliable empirical evidence regarding audience compositions; and (8) evidence relating to the intended audience.
Unfortunately, despite this expanded list of factors, CARU does not provide any further guidance on how it might weigh these factors when deciding whether advertising is primarily aimed at children. Advertisers should therefore carefully consider all of these factors when creating any advertisement.
Reflecting the growing trend of influencer marketing in all forms of advertising medium, including advertising to children, CARU has updated its 2022 guidelines to incorporate Federal Trade Commission (“FTC”) guidelines on influencers. . Specifically, influencers (and other endorsers) must disclose that they have a significant connection to the advertiser (which CARU guidelines define as “a connection that ordinary children don’t expect”), and all endorsements should reflect the influencer’s actual experiences and beliefs. In practice, these updates shouldn’t create new burdens for marketers, as the updates reflect the FTC’s pre-existing influencer guidelines. But it’s important for marketers to know that CARU is now aware of and actively reviewing influencer content.
In-app and in-game advertising
To account for the growing time children are spending on smartphones and playing video games, CARU has added a new section in its 2022 guidelines specifically focused on advertising and in-app and game purchases. This new guideline advises advertisers to avoid using unfair, deceptive or other manipulative advertising in video games and applications, including ‘deceptive door openers’ or ‘social pressure or validation’ to encourage advertising. viewing advertisements or in-app / in-game purchases. The new directive also provides that any means by which a child can reject or leave a digital advertisement must be displayed in a clear and visible manner. Finally, the guide explains that advertisements, apps, or games that enable purchases should make it clear that the purchase involves real money. Marketers in the video game and mobile application space should be particularly aware of these new guidelines and consider them carefully when developing in-game and in-app advertising, as CARU will likely be vigilant in seeking out violations of this new provision.
Clear and visible disclosures
The 2022 guidelines provide new definitions of “clear” and “visible” to better explain how important information (as defined in the guidelines) should be presented in advertising to children. “Clear” means “easily understood by ordinary children”. “Outstanding” means “presented in a way that is easily noticeable, ie hard to miss, by ordinary children”. For example, the guidelines recommend that in audio-video advertisements, any disclosure be made in audio and video form to increase the likelihood that a child will see, hear and understand the disclosure. The updated guidelines also stress the importance of increased transparency in situations where the line between advertising and non-advertising material is unclear (which is referred to as “blurring”). Additionally, the guidelines also recognize that counseling is flexible and that what constitutes appropriate disclosure varies depending on the age of the child. For example, something that may be clear and visible to a 13 year old may not be clear to a 7 year old. Therefore, when designing an advertisement aimed at a specific audience of children, it is imperative to assess the age of the potential audience.
Diversity, inclusion and anti-stereotyping
While the 2014 version of the CARU guidelines included guidelines that advertisers should avoid social stereotypes and appeals to prejudice, the updated guidelines greatly expand this sentiment. The 2022 guidelines urge advertisers to “recognize the power of their advertising to promote positive change by reflecting the diversity of humanity and providing an inclusive space where all can feel valued and respected.” The guidelines then include a provision requiring advertisers to “strive to create content that is welcoming to children of all races, religions, cultures, genders, sexual orientations, and physical and cognitive abilities.” To achieve its ambitious goals, the guidelines clearly prohibit advertising that “depicts[s] or encourage[s] negative social stereotypes, prejudices or discrimination.
While noble in purpose, the new diversity and inclusion provisions leave much to be desired in terms of scope, definitions and application. The guidelines do not define what constitutes a “negative social stereotype”, “prejudice” or “discrimination”, leaving CARU to interpret these terms on a case-by-case basis. Only time will tell how this provision will be applied and whether this application conflicts with broader constitutional provisions, such as the First Amendment or the equal protection clause if the directives were, for example, never invoked or relied on in a judiciary process. For now, marketers should be aware of CARU’s new diversity and inclusion provision and carefully consider any advertising aimed at children with these concepts in mind.
What do these updates mean for marketers?
As mentioned above, CARU is a self-regulatory program, and its guidelines on advertising to children are just that: guidelines. They are not legally binding (as would be an official law or government regulation); they are rather ambitious and provide a set of good practices to be followed in order to avoid the dissemination of advertisements that are potentially misleading, deceptive or inappropriate to children.
While the guidelines are not mandatory, they should be taken seriously and carefully reviewed and followed. CARU, as a unit of the Better Business Bureau’s national program, has the authority to challenge advertisements that it believes violate its advertising to children guidelines and to render a decision regarding such alleged violation. The process here is similar to challenges before the National Advertising Division (“NAD”), and CARU’s decisions can be appealed to the National Advertising Review Board. Of course, decisions made by the CARU (like NAD decisions) are not binding, but those who do not comply risk FTC interference.
When it comes to federal and state advertising litigation, CARU guidelines may become a touchstone for courts when assessing whether children’s advertising is false or misleading to children, in the same way as the FTC’s green guides are used in similar situations. At present, however, courts rarely cite the CARU guidelines, and it remains to be seen whether reliance on these will increase with new updates (including, for example, in cases of bogus class action advertising).
© 2022 Finnegan, Henderson, Farabow, Garrett & Dunner, LLPNational Law Review, Volume XII, Number 11