Capitalizing on Kid-Power

...Then there is the additional problem that commercials for children rarely try to communicate the objective merits of what is being sold...

...My argument has followed from the premise that children are not adults in miniature...

...No coaxing is necessary to get children to eat candy, cookies, cake or drink carbonated beverages...

...Just ask General Mills, McDonald's or Mattel...

...In March, the full Federal Trade Commission will decide whether to take action on the advertising of sugared foods...

...WXNE's enthusiasm is understandable...

...there's gold in Charlie and his friends...

...The broadcaster's "take" from advertising on children's television shows is now approaching $600 million annually...

...Surely any child who has experienced the discomfort and pain of having a cavity filled would want this "material" information...

...But you've got to sell Charlie first...

...It is no surprise, then, that Charlie believes that "Cereal A makes the monsters go away...

...Its American Family Report for 1976 and '77 tells us that the "major nagging problem in raising children who are 12 years or under" is that they are addicted to snacks between meals...

...In the case of food, this often means instant pleasure—and the danger of long-term malnutrition...

...At stake, I think, are fundamental questions about the extent to which our society will permit children to be treated as commercial targets rather than formative human beings entrusted to our care...

...To defend the child against the consequences of his or her unformed judgment, the law prevents children from buying, and sellers from selling to them, otherwise legal products such as cigarettes, liquor and rifles...

...I cannot pretend that we are entering upon a well-trodden or clearly marked path...

...Well, to the young child at home, television is a trusted companion, a teacher, a window on the world...

...But since the products are lawful, what makes the advertising unlawful...

...Our law of contracts protects not only the preliterate child but the adolescent almost old enough to vote...

...Or at least standing still...

...But you've got to sell Charlie first...

...Not to mention mom when she's serving the cookies...

...it tries to safeguard the family as an institution children may depend on for nurture and guidance...

...When Charlie sees something he likes, he usually gets it...

...For the FTC to reach sound and reasoned judgments, it must also hear from parents, teachers, pediatricians, dentists—the people on whom we rely for the advocacy of our children's best interests...

...But at the food store, parents attempting to follow these recommendations run head-on into their children's desires—desires generated by ads for the very products General Mills cautions against...

...Public interest groups have asked the Federal Trade Commission (FTC) to focus on this area—particularly on the advertising of highly sugared foods, which compounds the ethical issues of child-directed commercials with the danger of health risks...

...As Oliver Wendell Holmes wrote,"[children will] follow a bait as automatically as a fish...

...The FCC has found that "psychological and...

...Thus I am concerned that children's television advertising, notably ads for highly sugared products, may be violating the statutory standard of fairness...

...The law does more than seek to protect children directly, though...

...Since commercials do not disclose their real nature —that is, the economic interest of the seller—to the young child it is as if a valued friend were urging the consumption of a particular product solely out of concern for him...

...But even if you close your eyes and ears to this reality, children's advertising would have to pass the traditional test for nondeceptiveness...

...Charlie's mom is buying...

...I want to stress, therefore, that the views expressed here are my own, and not those of my four fellow commissioners, who must also grapple with the questions that have been raised...

...While children's TV advertising is a relatively recent phenomenon in our society, there are those who find challenging so pervasive an institution unthinkable...

...The advertiser and the broadcaster say to us: "OK, kid-vid offends you...

...The Court therefore recognized that it is proper to "conclude that parents and others, teachers for example, who have the primary responsibility for children's well being, are entitled to the support of laws designed to aid discharge of that responsibility...

...We cannot assume that somehow children are aware that there is also a risk involved in their enjoyment...

...Use sparingly foods high in sugar...

...behavioral questions can seldom be resolved to the point of mathematical certainty...

...They take away the appetite for more basic foods, provide only calories and quick energy and encourage tooth decay...

...No mention of other risks is found in the commercials either...

...In the end, of course, we must be rigorous and open-minded in our analysis of both law and fact...

...We are indebted to General Mills as well for documenting the resulting family discord...

...That's what we mean by kid power...

...He's not only tight with his mom, but he has a way with his dad, his grandma and Aunt Harriet, too...

...high, and growing faster than ad rates for adult programming...

...And even if a disclosure were made of the commercial nature of the message, the youngest of children and perhaps many older ones simply would not understand...

...Advertisers ask if the legal concept of unfairness is not an unbounded invitation to the five Commission members to substitute their own moral precepts for the freedom of the advertiser to seek his markets where he can find them...

...Commercials, though, are filled with audio and visual effects that highlight the "fun" or general desirability of possibly harmful foods...

...General Mills in a booklet called "Meal Planning for Young Children" offers this sound advice: "Watch the teeth...

...Right now widespread concern has been aroused, of course, by the conclusion of many experts that sugar, especially sticky sugar, is the preeminent cause of tooth decay...

...If he didn't see that himself on TV, Jane, who told him so, did...

...And of course, Charlie won't be watching alone...

...Offer sweets only at the end of the meal...

...The Commission has held, with respect to advertising directed to adults: "Too much is at stake, especially in matters of safety, to make any assumptions about consumer knowledge...

...The rates are Michael Pertschuk, whose article is adapted from an address to the Action for Children's Television research conference, is chairman of the Federal Trade Commission...

...Teaching a preference for other types of foods must begin early in the highchair stage...

...Lucky for you, Charlie's into TV...

...rather, they bring to advertising a special perspective and sensibility, a credu-lousness stemming from inexperience that advertisers exploit...

...Legal recognition of the preadolescent's lack of evaluative capacities is expressed, too, in the "attractive nuisance" doctrine of tort law: A person maintaining premises that are both enticing and dangerous to small children, say, a swimming pool or a construction site, is culpable for any injury that may befall a child...

...Under the Code of Hammurabi, commercial exploitation of a child, in some instances, was punishable by death...

...Other experts find sugar linked to the national epidemic of obesity...

...January 30, 1978 His allowance is only 50...

...These techniques may be tolerable when they are directed toward adults...

...Yet the advertising of sugared products does not warn of potential dangers like tooth decay...

...And just waiting for WXNE-TV 25 to hit the air this Fall...

...This solicitude for the vulnerability of the child is so firmly entrenched that the courts refuse to enforce a child's contract against him, even where the child's parents knew and approved of the contract...

...Nine years ago, the Supreme Court reaffirmed: "[T]he parents' claim to authority in their own home to direct the rearing of their own children is basic to the structure of our society...

...If it decides that something must be done, the question becomes, what...

...Nor is the whole question a relatively inconsequential one...

...Although we must explore all remedial approaches, it may be that only a ban on the advertising of these products on children's programs can remedy the situation...

...In short, there is no reason why such advertising, when unfair within the meaning of the FTC Act, should not be considered so and declared unlawful...

...And because children lack the judgment and experience to realize this, they cannot protect themselves against adults who exploit their present-mindedness...

...The evidence confirms, however, what our accumulated knowledge, experience and common sense tell us: that many children do not have the sophistication or experience needed to understand that advertising is not just another form of informational programming...

...The Commission may also consider "whether the practice is immoral, unethical or unscrupulous," and "whether it causes substantial injury to consumers...

...Of course, if you want to sell Charlie, you have to catch him when he's sitting down...

...A child may realize danger exists, but the law takes cognizance of his inability to withstand temptation...

...It must not be misleading...

...a week but his buying power is an American phenomenon...

...The FTC will be meeting shortly to formulate its response...

...Five years ago, in a landmark case, it indicated that in determining the lawfulness of commercial practices under the unfairness portion of Section 5, the Commission could consider "whether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, common law or otherwise...

...With children's health at stake, presuming knowledge would be even more impermissible...

...Children have become the target market for products that promise immediate satisfaction...

...That's when you'll be able to reach Charlie with your client's message every day, Monday thru Friday, from 2:30 to 8:00 p.m...

...You'll also be reaching Jeff and Timmy, Chris and Susie, Mark and his little brother John...

...A recent study, sponsored in part by the National Association of Broadcasters, demonstrated that many children have only a minimal understanding of what TV commercials are and what they do...

...And that's not easy...

...Moreover, if there is one public policy that rises commandingly from centuries of common and statutory law, it is that the commercial exploitation of children is repugnant to a civilized society...

...Children trust television because it is part of their world—it is everywhere...

...Thinking Aloud CAPITALIZING ON KID-POWER BY MICHAEL PERTSCHUK Agraphic example of the moral myopia of children's television advertising was provided not long ago by a Christian Broadcasting Company promotion for station WXNE in Broadcasting Magazine...

...I intend to give it to them...

...Should the Commission then proceed further, those whose economic interests are at stake can be counted on to effectively marshal facts and legal theory to support their position...

...Seldom is there emphasis on what is healthy, or any suggestion that eating too much of any food can be bad...

...Instead, using sophisticated techniques like fantasy and animation, they manipulate the child's attitudes...

...Fortunately, the Supreme Court has given us guidance...

...Section 5 of the Federal Trade Commission Act prohibits "unfair or deceptive acts or practices in or affecting commerce...

...Advertisers seize on the child's trust and exploit it for their gain...

...If you're selling, Charlie's mom is buying...

...established legal precedents embodying this public policy should be applied to protect youngsters from TV exploitation...

...Section 15 of the FTC Act provides that advertising is misleading—and hence unlawful—if material facts are omitted...

...The same principle would seem applicable to television advertising directed at young children...

...Consumer, stuff thyself" is the message...

...So, whether it's toothpaste or toy trucks, burgers or bionic dolls...

...For cumulatively, children's commercials tend to distort the role of food...

...As I have already observed, there is scientific evidence that health problems may result from the use of sugared products...

...aiming them at children is another matter altogether...

...Up to this point, I have concentrated on the unfairness of commercials aimed at children...

...These are the touchstones of the law of unfairness...

...That's your privilege...

...The cereal manufacturers have asked for an opportunity to present their views and concerns about these issues...

...One need only try to persuade a child otherwise to realize how deeply rooted this feeling is...

...Illustrated with a photograph of a contented five- or six-year-old sitting amid his toys and headlined Kid Power in bold block letters, the copy read: Kid Power is coming to Boston...