Advertising Law and Claim Substantiation in Children's Advertising

• Pages: 141-153

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CHAPTER VII

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).