Rethinking regulation of advertising aimed at children.

• Author: Ramsey, William A.

1. INTRODUCTION: A BRIEF HISTORY OF THE REGULATION OF ADVERTISING AIMED AT CHILDREN II. THE SCOPE OF THE CTA AND THE GOVERNMENT'S GENERAL PURPOSE IN PRESCRIBING COMMERCIAL LIMITS FOR CHILDREN'S TELEVISION PROGRAMS III. THE HARMS CAUSED BY ADVERTISING TO CHILDREN AND THE NEED FOR FURTHER GOVERNMENTAL REGULATION A. Advertising's Effect on Children's Health B. Advertising's Effect on Children's Materialistic Nature C. Advertising's Role in Re-Enforcing Racial Stereotypes IV. A CONSTITUTIONAL ANALYSIS OF THE CTA A. The Lesser First Amendment Protection Given to the Speech Regulated by the CTA B. An Analysis of the CTA Under Central Hudson's Four-Prong Test 1. Prong One: Are Commercials Aimed at Children Misleading? 2. Prong Two: Does the Government Have a Substantial Interest in Protecting Children from Advertising? 3. Prong Three: Does the CTA Substantially Protect Children from the Harms of Advertising? 4. Prong Four: Is the CTA More Extensive Than Necessary to Achieve the Government's Goals? V. BETTER WAYS TO ACHIEVE THE GOAL OF PROTECTING CHILDREN FROM THE HARMS CAUSED BY ADVERTISING AIMED AT CHILDREN A. The Reluctance of the FTC to Initiate Further Regulation B. The Government Should Regulate the Content Instead of the Amount of Commercial Material Aimed at Children 1. Commercials Aimed at Children Should Be Required to Contain Additional Information That Would Reduce the Commercials' Tendency to Mislead 2. Cartoon Characters and Celebrities Should Not Appear in Commercials Aimed at Children 3. Regulation Should Apply to All Commercials Aimed at Children Instead of Only Commercials That are Aired During Programs Aimed at Children VI. WAYS TO PROTECT CHILDREN FROM ADVERTISING OTHER THAN GOVERNMENT REGULATION VII. CONCLUSION I. INTRODUCTION: A BRIEF HISTORY OF THE REGULATION OF ADVERTISING AIMED AT CHILDREN

   In the 1970s, both the Federal Communications Commission ("FCC") (1) and the Federal Trade Commission ("FTC") (2) completed extensive examinations of advertising directed at children. The FCC issued a policy statement asking networks to voluntarily limit the amount of commercial time aired during programs directed at children. (3) The FTC compiled a staff report stating that it was fundamentally unfair for advertisers to direct commercials at children and issued a Notice of Proposed Rulemaking in 1978 that proposed major regulation of advertisements aired during children's television. (4) The FTC received harsh political and public response to this proposed rulemaking. The Washington Post called the proposal "a preposterous intervention that would turn the FTC into a great national nanny." (5) Congress responded to the FTC's proposal not only by passing legislation limiting the FTC's power to enforce any rule relating to children's advertising, but also by failing to renew the FTC's funding, in effect shutting down the agency temporarily. (6) After the FTC's unsuccessful attempt to regulate advertising aimed at children, there was not much governmental involvement in the area until 1990, when Congress passed the Children's Television Act ("CTA"), (7) which instructed the FCC to enforce certain requirements for television broadcasters. At this time, the FCC was still opposed to government involvement in this area and preferred to let the market regulate itself. (8)

   The two main requirements of the CTA are: (1) the FCC must establish standards for broadcasters regarding the amount of children's television programming aired; (9) and (2) broadcasters must limit the amount of commercial time aired during children's television programs to 10.5 minutes per hour or less on weekends and 12 minutes per hour or less on weekdays. (10) This commercial limit applies to over-the-air commercial. (12) television broadcasters, as well as cable (11) and digital television suppliers. The FCC adopted its rules to enforce the CTA in 1991 (13) and revised these rules in 1996. (14) Neither of these actions affected the substantive nature of the commercial limits, and dealt mainly with methods of enforcing the rules.

   While some members of Congress objected to the government imposing these commercial limitations, (15) these limitations are much less stringent than those in place in other countries that have used legislation to address advertising to children. Sweden has banned all advertising aimed at children twelve and under. (16) Norway and Finland have banned companies from sponsoring children's television shows. (17) Belgium has banned commercials from appearing five minutes before, during, and five minutes after children's programs. (18) Strict regulations appear to be forthcoming in England, where one of its major broadcasters, the British Broadcasting Corporation, has banned the use of cartoon characters in fast food ads. (19)

   This Note does not address the overall effectiveness of the CTA and the FCC regulations made pursuant to the CTA, or the validity of the underlying premise that children benefit from the availability of a large amount of television programming aimed at them, (20) and will only discuss the effectiveness of the CTA's commercial limits. This Note will examine the potential harms of advertising to children and will analyze the effectiveness of the CTA under the Supreme Court's test for determining the constitutionality of restrictions on commercial speech. (21) This Note will conclude that the commercial limitation of the CTA is probably constitutional. However, an analysis of the CTA under the Court's test will find that the CTA is not as effective as other regulations that could be adopted. Finally, this Note will suggest alternative regulations of commercials that would more effectively deal with the harms caused by advertising to children.

2. THE SCOPE OF THE CTA AND THE GOVERNMENT' S GENERAL PURPOSE IN PRESCRIBING COMMERCIAL LIMITS FOR CHILDREN' S TELEVISION PROGRAMS

   Although the FCC and Congress's purpose for the three-hour mandate was to increase the amount of beneficial television available to children, (22) the increased amount of television aimed at children correspondingly increases the amount of advertising aimed at children. (23) This increased exposure includes not only direct advertisements, but also instances in which companies use popular TV characters to promote their products. (24) In all, the average child sees 40,000 television ads per year. (25) Also, over half of American children have television sets in their rooms, indicating that many children are watching a significant amount of television without direct parental supervision. (26)

   In addition to the evidence that children view large amounts of commercial material, considerable evidence indicates that children have difficulty distinguishing a commercial from the program that they are watching. (27) Congress recognized that children who cannot distinguish between commercials and programs will be harmed by excessive exposure to commercials; children who do not know they are watching a commercial "certainly cannot be expected to react aversively to an excessive amount of advertising by changing the channel or turning off the television." (28) A 2004 study by the American Psychological Association ("APA") supports this congressional finding. The study found an inverse relationship between children who understand the nature of commercials and children who trust all commercials and want to acquire all the products they see advertised on television. (29)

   While the overall goal of the CTA is to improve television for children sixteen and under, the commercial limitation aims to protect only younger children, whom Congress thought were being adversely affected by commercials. (30) Thus, the definition of "child" for the purpose of commercial limits differs from the definition in other areas of FCC regulation. For the purposes of other FCC regulations, "children" are considered sixteen and under, but for the purposes of identifying shows that face commercial limitations, "children" are considered twelve and under. (31)

   For air time to be classified as "commercial" the broadcaster must have received consideration from the company that is advertising a product or service, and the announcement must have a promotional purpose. (32) Thus, public service messages sponsored by nonprofit organizations, promotions for other television programs, or educational or "spot" announcements that are introduced by the speaker saying "sponsored by [a company]" are not considered commercial material for the purposes of the limitation. (33) In fact, the FCC seeks to encourage such announcements. (34)

   Particularly worrisome to the FCC and Congress are "program-length commercials," programs in which a commercial for a product associated with the program airs during the program or within 60 seconds of its beginning or end. (35) If a broadcaster airs such a commercial during a program or within the 60-second window, the entire program will be considered commercial material. (36) For example, if a commercial for Burger King that featured characters from the cartoon "SpongeBob SquarePants" aired during or within 60 seconds of a "SpongeBob SquarePants" episode, the entire 30-minute program would count as a commercial. The FCC rejected the Action for Children's Television ("ACT") request to expand the scope beyond the 60-second window and found that "the short attention spans of children, particularly younger children most likely to confuse program and commercial material," justified permitting commercials for products associated with television shows to be aired outside of the 60-second window. (37)

   The FCC indicated that when enforcing the CTA it would consider single and accidental violations of the act de minimis, but would assess penalties for "willful or repeated" violations. (38) The result of this policy is that neither the broadcaster's intent nor its overall compliance with the CTA is the FCC's primary concern. For example, an FCC investigation...