Yesterday, the American Bar Association Forum on Communications Law and the ABA Center for Continuing Legal Education sponsored the program “Marketing to Minors: Traps for the Unwary in a Rapidly Evolving Legal Landscape.” Representatives from the Federal Trade Commission, Federal Communications Commission, and Gannett provided an overview of the current rules for marketing to children, discussed the status of a number of ongoing proceedings that propose changes to these rules, and explained how industry is reacting.
Of particular interest were the remarks of Phyllis Marcus, senior staff attorney in the FTC’s Division of Advertising Practices. Ms. Marcus explained why the agency is undertaking a review of its COPPA Rule and noted that she didn’t think the agency was “too far away” from making a decision on whether or not the Rule needs updating. (COPPA governs website operator’s online collection, use, and disclosure of personal information from children under 13.) Ms. Marcus also explained that, even though Facebook requires users to be 13 or over, marketers with Facebook pages ”should be reviewing pages and unfriending people who are, or appear to be, underage.” She acknowledged that some might view this interpretation as “controversial,” but encouraged marketers to adopt this approach as a best practice. And if a marketer’s Facebook page is likely to attract children, she warned that the marketer needs “to be very, very careful.”