Why Children’s Advertising Is Treated Differently
The law treats advertising to children differently from advertising to adults for reasons rooted in developmental psychology and consumer protection. Children, particularly young children, have a limited ability to distinguish between advertising and editorial content, to evaluate commercial claims critically, to understand persuasive intent, and to recognize when they are being sold to. These developmental limitations make children more susceptible to advertising influence and more likely to be harmed by deceptive or manipulative advertising practices. The regulatory and self-regulatory framework for children’s advertising reflects this vulnerability.
The FTC has long maintained that advertising directed to children must meet a higher standard of honesty and clarity than advertising directed to adults. Advertising that a sophisticated adult might recognize as puffery or hyperbole may be understood literally by a young child. Host-selling practices — having a program character endorse products during or adjacent to programming — have been specifically regulated in children’s broadcasting because children may not understand that the character is acting as a commercial spokesperson rather than as a genuine advocate. Any business whose marketing reaches children, whether intentionally or as a byproduct of broad distribution, must be attentive to these special standards.
COPPA: Children’s Online Privacy Protection Act
The Children’s Online Privacy Protection Act applies to operators of websites and online services that are directed to children under 13 or that have actual knowledge that they are collecting personal information from children under 13. COPPA requires that covered operators post a comprehensive privacy policy, provide direct notice to parents before collecting personal information from children, obtain verifiable parental consent before collecting, using, or disclosing personal information from children, give parents the ability to review and delete children’s personal information, maintain the confidentiality and security of children’s information, and retain children’s personal information only as long as necessary for the purpose for which it was collected.
Whether a website or service is directed to children is determined by considering multiple factors: the subject matter, the visual content, the use of animated characters or child-oriented activities, music or celebrities that appeal to children, advertising directed to children, and whether the site is intended to be used by children. A site does not need to be exclusively directed to children to fall under COPPA — if children are a significant part of the intended or actual audience, COPPA may apply. Similarly, a general audience service that has actual knowledge that a particular user is under 13 must treat that user as a child for COPPA purposes.
COPPA is enforced by the FTC, which has brought numerous enforcement actions resulting in substantial civil penalties. The FTC’s COPPA enforcement has become increasingly aggressive, with penalties in significant cases reaching into the tens of millions of dollars. The FTC has also pursued COPPA enforcement against third-party advertising networks and analytics providers that operate on child-directed sites, treating them as operators of those sites for COPPA purposes. This has important implications for businesses that use third-party advertising technology on sites that may be directed to children.
COPPA Safe Harbor Programs
COPPA allows industry organizations to submit self-regulatory programs for FTC approval as safe harbor programs. An operator that participates in a COPPA-approved safe harbor program is presumed to be in compliance with COPPA if it follows the program’s guidelines, which may be tailored to specific industries or types of services. The FTC has approved several safe harbor programs, operated by organizations such as ESRB, CARU, and others. Participation in a safe harbor program provides a degree of protection against FTC enforcement but does not insulate operators from civil liability in private lawsuits.
CARU Guidelines: Self-Regulatory Standards for Children’s Advertising
The Children’s Advertising Review Unit is a division of BBB National Programs that administers a self-regulatory program for advertising directed to children under 13. CARU’s guidelines establish standards for children’s advertising that address honesty and accuracy, product presentations, sales pressure, unsafe or inappropriate advertising, and special categories of advertising including food and beverage advertising, online advertising, and advertising in interactive media.
CARU’s core principle is that advertising to children must be truthful, accurate, and non-exploitative, and must take into account the limited knowledge, experience, sophistication, and maturity of young audiences. Specific CARU guidelines require that products must be shown in a context that is appropriate for children; that price claims must be presented in a way that children can understand; that disclaimers and disclosures must be made in clear and simple language at a level that the intended child audience can understand; that advertising must not exploit children’s imagination in a way that distorts the features of an advertised product; and that advertising must not directly exhort children to purchase products or urge children to ask their parents to buy products.
CARU in the Digital Age
CARU has updated its guidelines to address the digital advertising environment, including online behavioral advertising, social media marketing, and in-app advertising in children’s apps and games. CARU’s digital advertising guidelines require that advertisements in child-directed digital media be clearly distinguishable from editorial content and from the gaming or play experience. Advertising that is embedded within a game in a way that children cannot distinguish from the game itself — branded characters that appear as part of gameplay, sponsored challenges that blend seamlessly with non-sponsored content — raises particular concerns under CARU’s guidelines.
CARU reviews advertising on a complaint basis and on its own initiative, and it has the ability to request that advertisers modify or discontinue advertising that violates its guidelines. CARU also has a referral process under which it can refer matters to the FTC if an advertiser fails to comply with a CARU determination. For businesses that advertise to children, CARU review is a real possibility, and maintaining compliance with CARU guidelines reduces both the risk of a CARU proceeding and the risk of parallel FTC scrutiny.
Food and Beverage Advertising to Children
Food and beverage advertising to children has been subject to particular scrutiny in recent years, given concerns about childhood obesity and the disproportionate advertising of products high in sugar, salt, and fat to child audiences. The major food and beverage companies have adopted voluntary pledges, through the Children’s Food and Beverage Advertising Initiative, to limit advertising of certain products to children or to shift to advertising only healthier options in child-directed media. These voluntary commitments are self-regulatory and not legally binding, but they reflect the intense public and regulatory attention focused on food marketing to children.
State laws add another layer of complexity. Some states have enacted laws restricting the advertising of certain food and beverage products in schools, prohibiting advertising on school grounds, or requiring disclosures in food advertising directed at children. California, in particular, has been active in regulating food marketing to children, and businesses that market food products to child audiences nationally need to be aware of state-level requirements that may be more demanding than federal standards.
Practical Compliance for Businesses Reaching Child Audiences
For businesses whose marketing may reach children, either intentionally or as part of a broader audience, practical compliance starts with honestly assessing whether any aspect of the marketing program targets or knowingly reaches children under 13. If the answer is yes, COPPA compliance for any data collection, CARU-compliant advertising practices, and heightened FTC advertising standards all become relevant. The compliance obligations are not trivial, but they are well-defined, and businesses that invest in understanding them early avoid far more costly problems later.
Businesses should periodically audit any website, app, or social media presence that might attract child audiences and evaluate whether the content, advertising, and data collection practices meet COPPA and CARU standards. For businesses that use targeted advertising on third-party platforms, understanding how the platform handles audiences that may include children is essential — contextual and behavioral advertising that reaches children on platforms that are not themselves directed to children can still create COPPA exposure if the advertiser has reason to know that a significant portion of the audience is under 13.