Young children are one of the most vulnerable demographics when it comes to advertising. In an effort to protect young children from misleading, misleading, and inappropriate advertisements, the National Board of Advertising Review established the Children’s Advertising Review Unit (“CARU”) in 1974 as a self-regulatory program designed to promote responsible advertising to children. CARU is administered by the Council of Best Business Bureaus and governed by a set of criteria that take into account children’s sensitivities (eg, inexperience, immaturity, lack of cognitive skills to evaluate advertising, etc.). CARU creates guidelines based on these standards and updates these guidelines periodically to deal with the ever-evolving marketing landscape. CARU uses these Guidelines to review and rate advertisements of all kinds for truth, accuracy, relevance and sensitivity exclusively as they relate to children.
CARU last updated its guidelines in 2014. Since 2014, the world of advertising has evolved significantly. For example, we saw the skyrocketing rise of TikTok; Instagram’s popularity has grown from around 200 million users in 2014 to over 1.3 billion users in 2020;[i] Celebrity influencers have become a mainstay of advertising; unprecedented growth of unique ad formats in mobile applications and video games; The birth of “Metaverse”. Furthermore, the past several years have been defined by a movement to embrace diversity and inclusion in all forms of corporate governance and social governance, including advertising.
To address the growing importance of these new, immersive forms of advertising related to children, CARU recently updated its guidelines for children’s advertising. The changes in the guidelines directly reflect the new online and digital focus of children’s advertising that has thrived over the past decade, with changes addressing digital media, influencer marketing, in-app and in-game advertising, among other updates. The new CARU guidelines became effective January 1, 2022.
What has changed in CARU’s 2022 Children’s Advertising Guidelines?
Before we delve into the changes, it makes sense to start with something that hasn’t changed: the basic principles of CARU’s Baby Advertising Guidelines. These principles continue to focus on CARU’s founding goal of ensuring honest and clear advertising that does not depict or promote inappropriate or unsafe behavior for children. The guidelines also continue to embrace what CARU calls a “special responsibility” that advertisers have towards children who have limited knowledge, experience, development, and maturity.
While not changing the core principles, the updated CARU guidelines include five major changes that marketers should consider when creating ads targeting children.
means “children” under the age of 13
In what may be the biggest change in the guidelines, CARU has expanded the guidelines to apply to any advertisement “mainly directed” to children under 13. Previously, the Guidelines covered advertisements primarily directed at children under 12 years of age.
To help marketers determine when advertising is “primarily directed” to children under 13, CARU has outlined the factors they will consider when making this decision. Specifically, CARU will take into account the following factors, none of which control: (i) the subject; (ii) visual or audio content; (iii) the use of child-oriented animated characters, child-oriented activities or incentives; (iv) Life of the models; (5) the presence of child celebrities who appeal to children; (6) language or other characteristics; (vii) Competent and reliable empirical evidence regarding audience composition; and (8) a guide regarding the target audience.
Unfortunately, despite this extensive list of factors, CARU does not provide any further guidance on how to balance these factors when deciding whether an ad is directed primarily at children, so advertisers should carefully consider all of these factors when creating an ad.
Impact on Marketing
Reflecting the growing trend of influencer marketing in all forms of advertising media, including children’s advertising, CARU has updated its 2022 guidance to include the Federal Trade Commission (“FTC”) guidance for influencers. Specifically, Influencers (and other endorsers) must disclose that they have a substantial connection to the Advertiser (which the CARU Guidelines define as a “communication that ordinary children would not expect”), and all Endorsements must reflect the Influencer’s actual experiences and beliefs. In practice, these updates should not create any new burdens for marketers, as the updates reflect pre-existing FTC guidelines on influencers. But it is important for marketers to realize that CARU is now aware and actively reviewing influencer content.
In-app and in-game advertising
To account for the increasing amount of time children are spending on smartphones and playing video games, CARU has added a new section in its 2022 guidance that specifically focuses on ads and in-app and in-game purchases. This new guidance advises advertisers to avoid using unfair, deceptive or other deceptive advertising in apps and video games, including “deceptive door openers” or “social pressure or validation” to encourage ad viewing or in-app purchases/ inside the game. The new directive also states that any means by which a child can decline or exit a digital advertisement is clearly and clearly displayed. Finally, the guidelines state that ads, apps, or games that allow purchases must make it clear that the purchase includes real money. Marketers in the video game and mobile application space should be particularly aware of and carefully consider these new guidelines when developing in-game and in-app advertising, as CARU will likely be vigilant in looking for violations of this new provision.
Clear and frank disclosures
The 2022 Guidelines introduce new definitions of “obvious” and “obvious” to better explain how to display material information (as defined in the Guidelines) in children’s advertising. “Clear” means “easy to understand by ordinary children.” By ‘clear’ is meant ‘presented in such a way that it is easy to notice, i.e. difficult to miss by ordinary children’. For example, the Guidelines recommend that, in audio and video advertisements, any disclosures be made in the form of audio and video to increase the likelihood of a child being seen, heard, and understood. The updated guidelines also stress the importance of increasing transparency in situations where the line between advertising and non-advertising material is blurred (the so-called “blackout”). Furthermore, the guidelines also recognize that guidance is flexible, and what constitutes an appropriate disclosure varies with the age of the child. For example, something that would be obvious and prominent for a 13-year-old might not be appropriate for a 7-year-old. As a result, when designing an ad targeting a specific audience of children, it is necessary to assess the age of the potential audience.
Diversity, inclusion and the fight against stereotypes
While the 2014 version of the CARU Guidelines includes guidelines that advertisers should avoid social stereotypes and calls for bias, the updated guidelines greatly expand that sentiment. The 2022 guidelines urge advertisers to “recognize the power of their advertising to promote positive change by reflecting humanity’s diversity and providing an inclusive space where everyone can feel valued and respected.” The guidelines go on to include a provision requiring advertisers to “endeavour to create content that welcomes children of all races, religions, cultures, genders, sexual orientations, and physical and cognitive abilities.” To achieve its ambitious goals, the guidelines explicitly prohibit ads that “depict[s] or encourage[s] Negative social profiling, prejudice, or discrimination.”
Although noble in their 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 “negative social stereotypes,” “bias” or “discrimination,” leaving it to CARU to interpret these terms on a case-by-case basis. Only time will tell how this provision is enforced and whether such enforcement would conflict with any broader constitutional provisions, such as the First Amendment or the Equal Protection Clause if guidelines were invoked or relied on in a lawsuit for example. Currently, marketers should be aware of the new variety and inclusion in CARU, and carefully review any advertising for children with these concepts in mind.
What do these updates mean for marketers?
As mentioned earlier, CARU is a self-regulatory program, and its Kids Advertising Guidelines are exactly guidelines. Not legally binding (as official government legislation or regulations may be); Instead, it is ambitious and provides a set of best practices to follow to avoid posting ads that may be misleading, deceptive or inappropriate for children.
While the guidelines are not mandatory, they should be taken seriously and reviewed and followed carefully. CARU, as a unit of the National Better Business Bureau, has the ability to challenge ads it believes violate its Children’s Advertising Guidelines and issue a determination on such alleged violation. The process here is similar to challenges made before the National Advertising Department (“NAD”), and CARU decisions can be appealed to the National Advertising Review Board. Of course, decisions by CARU (such as NAD decisions) are non-binding, but those who do not comply will risk FTC intervention.
In terms of federal and state advertising litigation, CARU’s guidelines can become a touchstone for courts when assessing whether children’s ads are false or misleading to children, similar to how the FTC’s Green Guides are used in similar situations. However, the CARU guidelines are currently rarely cited by courts, and it remains to be seen whether reliance on them will increase with new updates (including, for example, cases of false advertising in class action).
© 2022 Finnigan, Henderson, Faraboe, Garrett Woodner, LLPNational Law Review, Volume XII, No. 11