Advertising Law and Claim Substantiation in Children's Advertising

A. Deception and Unfairness in Children’s Advertising
The Federal Trade Commission Act (FTC Act) broadly prohibits
unfair and deceptive advertising practices and the Federal Trade
Commission (FTC) enforces the Act in all advertising media. Central to
the FTC’s enforcement activity in the realm of children’s advertising is
the reality that children are not sophisticated consumers. With this in
mind, the FTC evaluates advertising directed at children using the
standard of the reasonable child consumer.
At the state level, state attorneys general bring enforcement actions
against advertisers under states’ “little FTC Acts,” which prohibit unfair
and deceptive trade practices. Each state with advertising laws that
provide a cause of action to private citizens also have laws that allow
private citizens to bring class actions against advertisers.
As a result, all advertisers must ensure their advertising is truthful
and not misleading and ensure that they have adequate substantiation for
any claims they may make. In the context of children’s advertising,
advertisers must consider how a reasonable child would interpret an
advertising message.
1. FTC Statutory Authority
a. Deception Elements
To find a practice deceptive, the FTC determines whether there is a
statement or omission that is likely to mislead a reasonable consumer
about a material issue.1 Claims or omissions in an advertiser’s message
are more likely to be material if they significantly involve health, safety,
product durability, performance, warranties, or quality. The FTC has
issued various rules and guides to help businesses determine what is
unfair and deceptive.
1. Deception Policy Statement, 103 F.T.C. 110, 176-83 (1984).

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