little girl and laptopOn June 21, 2017, the Federal Trade Commission (FTC) updated one of its Children’s Online Privacy Protection Act (COPPA) compliance guides for businesses. Known as the “Six-Step Compliance Plan,” this document provides a step-by-step road map for determining if a company is covered by COPPA and what to do to comply.

COPPA applies to operators of websites and online services that collect “personal information” from children under 13 years of age, where the site or service is directed to children or has actual knowledge that it is collecting personal information from a child. COPPA’s coverage extends to a variety of online services, such as mobile apps, internet-enabled gaming platforms, and – in some cases – companies that collect personal information directly from users of another website or online service (such as ad networks and plug-ins).


Continue Reading FTC Updates COPPA Guidance for IoT and New Consent Options

Our friend Elaine Kolish, Director of the Children’s Food and Beverage Advertising Initiative is stepping down shortly after a remarkable ten year run. So we thought this was a great opportunity to sit down with Elaine and look back over her accomplishments, what might be coming next for the organization, and lessons that companies in

Last week, in settlements with two app developers, the Federal Trade Commission (“FTC”) announced its first enforcement actions under the Children’s Online Privacy Protection Rule (“COPPA Rule”) amendments on persistent identifiers.  Persistent identifiers are data that can be used to recognize a user over time and across different websites or online services.  In 2012, we blogged about the FTC’s update to the COPPA Rule, which added persistent identifiers to the definition of “personal information.”  Although some exceptions apply, the FTC made clear that persistent identifiers cannot be used for targeted (behavioral) advertising on child-directed sites or services, absent parental notice and consent.  
Continue Reading No Cop Out in COPPA: The FTC’s First Enforcement Actions on Persistent Identifiers

The Advertising Self-Regulatory Council operates several self-regulatory programs including CARU, NAD and ERSP.  Traditionally these have been thought of as distinct programs – CARU regulates marketing to children, ERSP regulates companies that market and sell their products electronically while NAD oversees most traditional national advertisers.  While this compartmentalization is largely true, there is some overlap between ERSP and NAD as well as some differences in their procedures that could lead clients to think strategically about which venue to select for a self-regulatory challenge.

While ERSP’s jurisdiction extends to “electronic retailers,” many traditional advertisers either provide an opportunity to purchase their products online or offer consumers information on their website about locations where specific products can be purchased.  In either case, the company would fall within ERSP’s definition of an “electronic retailer.”  At the same time NAD has jurisdiction over any “national advertising” meaning that there can be not inconsiderable overlap between the two entities. 
Continue Reading Broadening Your Self-Regulatory Options – 2 Sheriffs in Town

Huddled in front of a digital hearth on the third and final morning of the NAD Annual Conference, FTC Commissioner Terrell McSweeny participated in a cozy fireside chat about children’s marketing with ASRC President and CEO, C. Lee Peeler. The newest FTC Commissioner reported (or warned!) that she is closely following the evolution of marketing

‎”Gates” as scandals probably started with Watergate but many other embarrassments followed suit with a similar gating moniker. Nipple-gate or Janet Jackson’s Superbowl wardrobe malfunction, Zoe Baird’s Nanny-gate are just a few. Age-gating your website to make sure it is COPPA-compliant should not give rise to messy press and finger-pointing. ‎Web designers and marketers need to remember that kids are smart and make reasonable efforts to thwart their efforts to evade your controls. A few recent CARU cases are instructive.
Continue Reading Age-Gating Your Website: Do Not Make it a Scandal

sealEveryone 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!
Continue Reading Is It Safe To Use Seals to Promote Your Product? NAD Says Foo to FuHu

Kids say the darndest things, and California wants to make sure that when it comes to their online postings those kids get a do-over.  On January 2015, California law SB 568 entitled “Privacy Rights for California Minors in the Digital World” will go into effect, allowing minors to remove certain posted online content as well as restricting certain types of online advertising directed to minors.

We have previously discussed California (see posts) and its continued stance as a leader in data privacy legislation, and this is no different.  California’s enactment of SB 568 focuses on expanding the online safeguards that the FTC put in place for minors with COPPA, as well as giving a nod to a topic of heavy debate in Europe—the right to be forgotten.


Continue Reading California Enacts Law Protecting Minors’ Digital Privacy Rights

We are close to live blogging from the annual NAD Advertising Law Conference and for those who could not join us, we wanted to share highlights from its opening — keynote speaker FTC Chairwoman Edith Ramirez.  The FTC typically uses this conference to lay out its enforcement priorities relevant to national advertisers and gives us all a peek into the crystal ball for the coming year.  So here’s what we heard.
Continue Reading Live (almost) from New York, It’s the NAD Annual Conference

Sometimes we just like to share things with our readers because they make us laugh.  Belly laughs out loud.  It has been some time since we shared an ad with you where we had to warn you to shut your door before you watched (last one was probably Dollar Shave or DirectTV) but here you go:

But since we are a law blog and not just a blog of funny things, we should include some lessons here. And so this ad makes us think about learning claims.  Programs that purport to help children or adults learn new or better skills have long been an enforcement focus.  They may not rise to the priority level of health or weight loss claims but have been on the regulatory radar screen for many years.  Back in the 1990s, the FTC brought cases against Zygon’s Learning Machine and Gateway Learning’s Hooked on Phonics with settlements requiring competent and reliable scientific evidence to support claims that a product will teach a particular skill such as reading or learning a foreign language.  The Center for Commercial Free Childhood has been very active in suggesting cases to the FTC to review.  And while there is no guarantee such complaints result in an investigation, they often will. 
Continue Reading What Are We Thinking About? Learning Claims!