Welcome to Hollywood, Kids! Navigating Children's Advertising and Privacy on TikTok, YouTube, and the Metaverse

Masters of Advertising Law Conference attendees: Scroll down for CLE materials

A panel of experienced lawyers offered an overview of recent legislation and developments in influencer marketing relevant to marketers advertising to children. They also provided an array of useful tips for avoiding the use of so-called "dark patterns" and for managing child-directed advertising responsibly.

Key Takeaways

Children's Privacy Legislation

In September of 2022, California passed the Age-Appropriate Design Code Act. The law applies to businesses providing an online service, product, or feature likely to be accessed by children under the age of 18 (notably higher than the age of 13 which is the age-ceiling for application of COPPA, or the Children's Online Privacy Protection Rule). Such businesses are required to:

  • Configure the default settings to a high level of privacy.
  • Conduct a Data Protection Impact Assessment (DPIA) for each product or service.
  • Be prepared to make these DPIAs available to the Attorney General.

Additional, federal legislation pertaining to advertising to children includes the Children and Teens Online Privacy Act (CTOPPA) and the Kids Online Safety Act (KOSA), passed by the U.S. Senate Committee of Commerce, Science, and Transportation in July of 2022. These acts reflect an emphasis on safety in advertising to children and a focus on parental rights.

Finally, the panel drew attention to an FAQ recently issued by the FTC on COPPA in which the body maintained that a violation could be constituted by posting videos for commercial purposes on a general audience platform that hosts a wide variety of user-generated content (read: YouTube). Such a violation would be made if the content is directed at children and personal information on the user-children is being collected, either by the poster or, if it is aware that the content is directed at children, by the site. Indeed, YouTube does not allow tracking on content tagged as "Made for Kids" on its site, serving viewers only contextually relevant ads.

Developments in Influencer Marketing

During a virtual meeting on May 19, 2022, the FTC unanimously approved a request for public comment on proposed amendments to its endorsement guidelines.

The FTC is proposing extensive revisions to the guide, with many new and more nuanced examples, providing additional clarity around influencer disclosures in various scenarios, as well as a new section addressing child-directed advertising.

Also of note, an FTC workshop held in October of 2022 on stealth advertising to children excluded traditional advertising channels (such as linear TV) from the malign category of "stealth" advertising. However, it remains to be definitively determined if the FTC ever considers native and influencer advertising appropriate to be directed at children.

Dark Patterns

The FTC defines dark patterns as an interface that impedes consumers' selection of preference, manipulates consumers, or otherwise subverts consumer choice. These tactics, according to the panel, can include:

  • Not labelling ads as ads
  • Camouflaging the fact that real money is involved in an activity that an ad promotes
  • Engaging in "emotional manipulation," e.g., telling a child that a virtual pet will starve if he or she doesn't buy the digital creature more food

Action Steps

The panel urged its audience to adhere to the following guidance when advertising to children:

  • Remember, an ad must be easily identifiable as an ad.
  • Don't blur advertising and non-advertising content together.
  • Pay attention to wording and design techniques in distinguishing between advertising and non-advertising content. (Useful tools can include text size, shading, positioning, color, borders, and disclosures.)
  • Remember, you can't use a disclosure to contradict a claim in your advertising.
  • Also remember to keep your disclosures simply worded enough that they can be understood by children.
  • Don't be misleading about what's included in the package of an advertised product.
  • Keep safety top of mind. For instance, warn children not to eat things that they might be tempted to (e.g., toy food for a toy turtle).
  • Don't propagate negative social stereotypes (e.g., with a toy doll that's afraid to be seen looking less than perfect).
  • Read the guidelines, including the privacy guidelines, issued by CARU (the Children's Advertising Review Unit).
  • When preparing to advertise on the metaverse, get to know the "play pattern" of the virtual world that you're considering operating in. Do users speak with avatars? Do they navigate the world via roads? Look for appropriate places to locate "clear and conspicuous" labeling of advertising.
  • If advertising on Roblox, work with agencies that have a relationship or direct experience with Roblox.
  • When making a contract with any influencer — including a youth influencer — include a morals clause.

CLE Materials


"Welcome to Hollywood, Kids! Navigating Children's Advertising and Privacy on TikTok, YouTube, and the Metaverse." Allison Fitzpatrick, partner, advertising and marketing at Davis+Gilbert LLP; Mary K. Engel, EVP, policy at BBB National Programs; Nur-ul-Haq, SVP, global privacy and kids' compliance at Paramount Global; Maria Daatio Perez, director and senior counsel, marketing, advertising, and content review at Mattel, Inc. 2022 ANA Masters of Law Conference, 11/8/22.

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