Everyone loves an award. It is one thing when a marketer promotes its own product but to be able to back promises with a seal, a certificate, or other third-party recognition of greatness gives extra confidence to consumers that this is a product they can really trust. There has been much talk recently about dos and don’ts with use of seals. The FTC has brought multiple cases when companies offering seals allegedly fail to research and properly certify the companies it does business with to ensure compliance with the articulated award standards, including in cases involving green seals and Made in USA. Last week we wrote about a similar case involving the TRUSTe COPPA safe harbor seal. NAD recently examined use of seals from a different angle, considering whether by use of a seal a marketer was conveying an overly broad promise about its product. The case reminds us of principles the FTC articulated in its Green Guides that a marketer is responsible to define and explain what a seal means to its consumers unless it is patently clear from the seal itself. Like many things we advertising lawyers do, this is often easier said than done!
Let’s start with a bit of background for this case that focused on use of a seal to promote its TRUSTe certification for COPPA compliance. The Children’s Online Privacy Protection Act (“COPPA”) includes a provision that allows industry groups to submit self-approval regulatory guidelines that implement the protections of the Commission’s final rule to the FTC for approval. There are a number of safe harbor programs, and since 2001, TRUSTe has been approved by the FTC as a COPPA Safe Harbor certification provider. To receive a TRUSTe Children’s Seal, which certifies that the business is compliant with the COPPA Rule, and the safe harbor that comes with it, websites must follow specific Children’s Privacy Program Requirements. The seal certifies that the participant will follow COPPA’s requirements that websites directed to children under thirteen only collect personal information from a child if the website provided notice to the child’s parent and has obtained verifiable parental consent before collecting or sharing a child’s personal information, and that the site will not require the child to divulge more personal information than is necessary to engage in the site’s activities. Further, parents must have the right to request access to the information the website has collected from the child. In addition, children’s seal holders must follow the TRUSTe’s standard Web Privacy Seal Program.
Fuhu, makers of the Nabi Jr. Children’s tablet, claimed its tablet was the “first COPPA compliant tablet,” the “first tablet to receive TRUSTe certification for COPPA compliance,” “a level of trust that has never been given to a tablet,” and the tablet is “Kid Safe” with use of a seal and within the seal included “COPPA Compliant”. The challenger asserted that an implied claim is that the tablet is safe in ways beyond COPPA compliance and relatively safer for children than competing kid’s tablets.
First Fuhu agreed to discontinue its claim that it was the first COPPA compliance tablet and instead focus on the claim that the Nabi Jr. was the first tablets certified COPPA compliant or the first tablet to receive TRUSTe certification for COPPA compliance. (As an aside, such “first” claims, as long as substantiated, are wonderful as they never become stale like superiority or parity claims that need refreshed with every new product introduction). Fuhu also agreed to discontinue the claim that the certification signifies a level of trust never given to a tablet, because this claim falsely implied the company achieved a higher level of compliance than federal law requires.
Fuhu defended its use of the seal explaining that surrounding the emblem it provided the definition of the seal with “We are the first tablet to receive TRUSTe certification for COPPA compliance.” On the same page there was more detail that COPPA seeks “to provide a safe and secure environment for kids while maintaining transparency with parents.” NAD found that within the context of the webpage where the seal was used that the seal conveyed an unsupported message of overall safety. While Fuhu said it had narrowed the meaning of “kid safe” by adding “COPPA Compliant,” NAD found instead some reasonable consumers could have understood these phrases as separate and distinct promises saying “one message reasonably by the phrases ‘Kid Safe’ and ‘COPPA Compliant’ which appear on the seal is that these are separate attributes of the Nabi Jr. Rather than the more limited message that the Nabi Jr. Is ‘Kid Safe’ because of its compliance with COPPA.”
What does this mean when using seals? In addition to making sure it is clear if the seal is awarded by a third party or the marketers own seal, the marketer needs to take pains to make sure the seal is understandable to consumers. And the Fuhu case tells us this is not always as easy as it sounds. Beyond concerns of space considerations on labels to find the room to explain your seal, how you convey the details requires significant thought so when providing explanation that you do not do more harm than good. Consider using phrases and visual cues to amplify when a seal is being qualified. And take a step back to look at the use of the seal in overall context.