Regulatory Issues: Self-Regulation of Advertising to Children
Emotions run high when it comes to advertising to kids, but processors have an alphabet soup of tools for enacting voluntary regulations.
By Leslie Krasny, Contributing Editor | 06/29/2006
The Children's Advertising Review Unit (CARU) of the Council of Better Business Bureaus is a voluntary, self-regulatory forum established in 1974 by the National Advertising Review Council to promote responsible advertising to children. CARU, funded by members of the advertising industry, evaluates advertising and promotional material in all media, as well as online privacy practices that may affect children. CARU also provides an advisory service.
If CARU determines advertising is false, misleading, or inconsistent with its Self-Regulatory Guidelines for Children's Advertising (guidelines) and relevant laws and regulations, it will request advertisers voluntarily change the advertisements. Written inquiries regarding specific advertisements are based on either CARU's monitoring program or questions raised by competitors and other sources. If an advertiser does not accept CARU's decision, the matter may be referred to the Federal Trade Commission (FTC), which has jurisdiction over false, misleading, deceptive and unfair advertising.
The rate of compliance with CARU decisions is about 97 percent and the decisions are included in case reports published at least 10 times a year.
The guidelines apply to advertising directed to children under 12 and to online information collection involving children under 13. The guidelines include certain provisions of importance to food advertisers. Specifically, copy, sound and visual presentations should not mislead children about the nutritional benefits of products or benefits from the use of products, such as the acquisition of strength, growth, proficiency and intelligence.
The guidelines also provide that the amount of product featured should be within reasonable levels. They address mealtime and snack time ads, suggesting such should clearly and adequately depict the role of the product within the framework of a balanced diet, and specify that snack foods should be represented as such, and not as a substitute for meals.
The use of licensed characters in food advertising has generated criticism by some groups. However, so-called "host-selling" has long been addressed in the guidelines, which state that program personalities, live or animated, should not be used to sell products in conjunction with programs primarily directed to children in which the same personalities appear. These restrictions are also reflected in rules governing television administered by the Federal Communications Commission.
CARU has been criticized as being both too lenient and too strict. Some politicians and consumer advocacy groups who seek broader restrictions on food advertising have described CARU as the "fox guarding the henhouse" because of industry funding and the participation of industry representatives on its board.
Last July, Sen. Tom Harkin (D-Iowa), addressing the marketing of junk food to children, stated, "CARU, frankly, has become a poster child for how not to conduct self-regulation. Time and again, it has shown itself to be a captive of the industry. It has no real independence. No sanction authority. No teeth."
Conversely, recent decisions raised concerns within industry that CARU has become too aggressive, exceeding the scope of its authority by using cases rather than a thoughtful guideline review process to make far-reaching advertising rules.
Recently, the Council of Better Business Bureaus selected Joan Bernstein, a former director of the FTC's Bureau of Consumer Protection, to head a review of CARU's guidelines. Input from CARU Supporters, members of CARU's academic advisory board and others will be solicited during the review process. Recommendations for updates to the guidelines are expected this summer.
About the Author
Leslie T. Krasny is a partner at the law firm of Keller and Heckman LLP, San Francisco. She specializes in food and drug law, food safety, food labeling, ingredient evaluation, organics, biotechnology and advertising. She holds a master's degree in cell and molecular biology. For more information about Keller and Heckman, visit the firm's web site at www.khlaw.com.