From a marketing standpoint companies always want to know who the target audience is for the advertising, but sometimes it becomes important from a legal standpoint as well. In some instances arguments regarding the target audience can be helpful. Claims are usually interpreted with regard to the “reasonable consumer” but in some instances claims that might mislead the reasonable consumer may not be misleading because they are intended for a more knowledgeable or sophisticated audience. The FTC’s Policy Statement on Deception provides the example of a prescription drug advertisement to doctors and notes that such advertising should be judged “in light of the knowledge and sophistication of that group.” More often, though, arguments about target audience can be a source of difficulty. The Policy Statement also cites examples of ads targeted to more vulnerable groups, such as marketing a cure for cancer to terminally ill patients. In other cases, advertising or marketing to certain groups is either not permitted or companies have made voluntary commitments not to do so. Most often this involves children. Alcohol, tobacco, certain types of entertainment, some prescription drugs and some foods fall into this category.
It’s not always easy to tell who is the “target audience” for an advertisement. Many years ago RJ Reynolds was embroiled in a dispute with the FTC over whether its use of a Joe Camel cartoon character to promote its Camel brand of cigarettes was targeted to minors. When it comes to television or print advertising companies often avoid “targeting” children by placing ads only on shows or periodicals that have adult demographics above a certain threshold.
A billboard in Spain regarding child abuse provides a new option. The ad uses lenticular image (if you’re like us and had no idea what this means, click here) to display a slightly different message for adults and children (or at least adults and children of average height.) Anyone taller than 4’5” sees the message “sometimes child abuse is only visible to the child suffering it.” Anyone shorter than that sees a picture of a child with bruises and a different message – “if somebody hurts you, phone us and we’ll help you" alongside the foundation's phone number. The idea is to allow abused children to see the message and not their abuser who may be there with them. So technology may make it easier, in some instances, to determine who an ad is targeted to. However, the use of such technology can raise problems as well. For example, what’s the value of a disclosure like “batteries not included” in a toy advertisement that only children can see if the child doesn’t read very well. And suppose the technology allows you to target certain groups but not with 100% certainty; for example, some adults are shorter than 4’6”. In such instances at what point does the technology work so imprecisely that a company can no longer claim it “targets” certain groups. No doubt these questions will be sorted out as targeting technologies are targeted and utilized. And the fact that, like most technology, it may be used both well and poorly means that lawyers and regulators will undoubtedly be busy keeping up with a rapidly evolving marketplace.