Marketing Children's Products Guidelines

The Electronic Retailing Association believes that advertisers who direct advertising to children must always take into account the level of knowledge, sophistication and maturity of their uniquely impressionable and vulnerable audience. Younger children have a limited capacity for evaluating the credibility of information they receive. They also may lack the ability to understand the nature of the information they provide. Advertisers, therefore, have a special responsibility to protect children from their own susceptibilities. Because advertising may play an important part in educating the child, advertisers have a responsibility to communicate information in a truthful and accurate manner and in language understandable to young children with full recognition that the child may learn practices from advertising which can affect his or her health and well-being.

The ERA "Guidelines for Marketing Children's Products" focus exclusively on infomercials because there are specific laws and regulations that apply to advertising that appears during children's television programming. Therefore, these guidelines are mostly concerned with setting forth what factors are to be considered in deciding whether an infomercial is directed at children, at adults, or both.

However, ERA recognizes that advertising directed at children presents additional concerns - e.g., deception, privacy, etc. ERA's broader "Industry Marketing Guidelines”and its "Online Marketing Guidelines" direct members to take "particular care" in advertising for products designed for use by children. Such advertising must comply with the guidelines for children's advertising issued by the Council of Better Business Bureaus' Children's Advertising Review Unit. (Those guidelines address deception in children's advertising, sweepstakes and prize promotions, 900 numbers, Internet advertising, personal data collection, and other issues.) In addition, those ERA guidelines require that members comply with all laws and regulations that govern advertising and marketing practices, including the laws and regulations that relate to advertising and marketing directed to children (such as the Federal Trade Commission's "Children's Online Privacy Protection Rule").

Manufacturers and distributors of products designed for children have discovered the benefits of infomercials. Infomercials provide marketers with the time necessary to explain the educational and developmental qualities of their products. At the same time, they can promote education, family values, and other concepts important to teachers and parents. For quite some time, however, advertising for children's products has been subject to the scrutiny of Congress and the Federal Communications Commission, as well as the criticism of many non-profit watch-dog organizations. Understanding that marketing products in this area requires special care, ERA has developed its Guidelines for Marketing Children's Products in order to safeguard the interests of children, television stations, and marketers.

A. The Children's Television Act of 1990 limits the amount of advertising that a broadcaster can air during children's programming.

The Children's Television Act of 1990 limits the amount of advertising and specifies that broadcasters follow specific commercial guidelines for children's television programming. According to these guidelines, broadcasters must limit the amount of advertising broadcast during children's programming to not more than 10.5 minutes per hour on weekends and not more than 12 minutes per hour on weekdays. Any commercial broadcasting in excess of these time limits during children's programming subjects the television station to possible monetary penalties and license renewal difficulties.

Children's programming is defined in the Children's Television Act as any program "originally produced and broadcast primarily for an audience of 12 years of age and under." This means that a television station cannot air more than that specific number of commercial advertising minutes during programming that is aimed at children 12 years of age and under. As a consequence, it also means that if a broadcaster airs infomercials aimed only at children under 12, it necessarily violates the FCC regulations implemented under the Children's Television Act.

B. Infomercials marketing children's products, but designed to appeal to adults or families, may be permitted.

If the intended audience of an infomercial for a children's product is above 12 years of age, or is a "general audience" that may otherwise include children, (for example, if designed to attract family viewing), it may not violate FCC regulations. Although the FCC has not laid down a clear test to describe how to determine whether a program was "originally produced and broadcast primarily for an audience of children 12 years of age and under" or a "general audience," it will consider many factors to make this determination. Most important, the FCC will analyze the "producer's intent" in creating the program, as well as the facts and circumstances surrounding the production and broadcast of the program.

C. The FCC will analyze the producer's intent and other factors in determining whether the infomercial is geared only to children.

The FCC will look to the language of the show itself. Is it directed toward a child or an adult audience? The more adult-oriented the dialogue, the more clear it is that the targeted audience is adults rather than children. It will consider the host of the show - is it a child star or cartoon character?

The FCC will also analyze the time and location in which the show is aired. Saturday mornings are generally regarded as children's programming prime time. Therefore, it is difficult to claim that a program aired at 9:00 a.m. on Saturday morning is intended to reach adults.

The FCC will also look into the television station's correspondence with producers and marketers. Specifically, the FCC will look to all of the documentation provided by the producers or seller of the product. This information should include a description of the targeted audience, the product and when the producer intends to air the show.

D. An infomercial for a children's product must be geared to families or only to adults.

If a program is intended to reach a general audience that may include children (a family, for example), it may not be considered a "children's program." Therefore, it may be possible to safely create a family "infomercial," which might appeal to parents as well as children under 12 years of age. The danger in creating such a show, however, is that if children are attracted to the program at all, the producer's intent may attract regulatory scrutiny.

In addition, if the program offers a product that no adult or parent would want to purchase for a child (i.e., toy guns), it may be difficult to promote as adult-oriented. On the other hand, programs that feature educators, psychologists or other individuals noted for helping children, may be considered more adult-oriented.

It may also be difficult to get a broadcaster to air a program that is arguably intended to reach adults, if it is to be aired during a Saturday morning children television block. Therefore, if the program will be aired during children's prime time, it is imperative to make clear that the intended audience is adults.

It should be noted, however, that the FCC operates and will make its determination regarding producers intent with the assumption that producers are generally aware of exactly who their targeted audience is intended to be. Thus, although the FCC will consider many factors, it will approach such situations skeptically.

E. Not all products are appropriate for infomercials.

Because any infomercial for a children's product must be appealing to adults as well as children, not all products may be appropriate for infomercials. Toys and games that provide entertainment, but provide little in the way of educational value, may not be well suited for infomercials. If a marketer wishes to produce such an infomercial, it faces the challenge of making the program appealing to adults or family audiences. Such products, however, may quickly attract the attention of regulators, television stations and other organizations and may be better marketed through other forms of advertising.

F. The risk remains that the television station which is at risk of a fine or license renewal difficulties may not air an infomercial for a children's product.

Ultimately, the FCC licensee or television station bears the risk when airing an infomercial that may be considered children's programming. Therefore, the marketer must convince the television station, not the FCC or other agency, that the infomercial will not put the station at risk of violating the Act. Because television stations are coming under increasing scrutiny in this area, and many are facing fines for violating the Act, it may become more difficult to get a station to air such an infomercial.

G. Public relations consequences of producing any infomercial for a children's infomercial.

Many children's watch-dog organizations are also voicing concern over the "over-commercialization" of children's programming. In fact, many have publicly stated that infomercials for toys and other children’s products are the newest form of "institutionalized" child abuse. Therefore, any infomercial producer must seriously consider the possibility that they will be the target of negative public relations.