By now, most of the world has heard about this: The latest app on the Apple App-Store, which sold for $0.99 invited buyers to “See how long you can endure his or her adorable cries before you just have to find a way to quiet the baby down!” Shake your phone, and the baby stops crying. Almost as soon as it went up, it came down, and for good reason.

Outrage was swift and response was swifter. Apple removed the application from its store. Many bloggers and commentators wondered how such an application could get past the eagle-eye of the computer giant, who claims to review each applet uploaded to the App-Store.

The lessons here extend past the boundaries of good taste, or discussions about the state of moral decay in our society that we think a shaking baby game is funny (this harkens back to the “hot coffee” patch for Grand Theft Auto that allowed game players to rape and murder a prostitute). It underscores the importance of making clear what a company’s obligations are to match their public statements with their legal obligations.

Apple says it reviews each applet that goes into its App-Store, but for what, exactly? The public statement implies a general review for everything from operability to appropriateness. Its actual terms suggest a much more narrow scope of review, limited to profanity and operability. This is actually a reasonable limitation; what is not reasonable is to imply something else. The press seems to think that’s what happened here.

Whether Apple is guilty of giving the wrong impression or merely the victim of a witch-hunt is not important: the lesson for large companies is this: make a “terms of use” policy you can live with, and instruct marketing folks to stay within the lines of that policy.

On December 5, 2008, The Children’s Advertising Review Unit (”CARU,”) a division of the Better Business Bureau, issue a press release admonishing advertisers to make clear disclosure about the need for adult supervision with certain toys, particularly when those toys are advertised directly to children.

CARU highlighted a new product from Wham-O, called the Slip ‘N’ Slide Mega Shark, a water toy for children’s play. The toy was advertised on Nickelodeon during a time when children are the primary viewing audience.

CARU questioned whether a small graphic disclosure on the screen was sufficient to inform children that no one over 5’ tall or weighing over 110 pounds should use the toy. Moreover, CARU expressed concern that because the disclosure was not properly made, the toy might be misused by children.

The lack of adequate disclosure was only one of the concerns CARU expressed. CARU also worried that the commercial should have shown adequate adult supervision, noting there was only a brief showing of a woman watching the children play on the slide. Overall, CARU found, the commercial did not meet CARU’s voluntary requirements.

Case law supports CARU’s contention that more precautions should be taken. In particular, with water sliding devices, the weight and height requirement is important, as spinal cord injuries, rendering users unable to walk, have been reported, and numerous law suits have dealt with this issue.

Practice Note: In an era of childhood obesity, it is not unusual for children to weight over 110 pounds. Clients CARU is self-regulatory and speaks softly, but carries a big stick. In cases where an advertiser refuses to alter its ad campaign, CARU can (and will) refer matters directly to the Federal Trade Commission for prosecution. Moreover, CARU can alert the CPSC if it believes the product or its advertising present a problem.

In Williams v. Gerber Prods. Co., 523 F.3d 934 (9th Cir. Cal. 2008), a panel of the United States Court of Appeals for the Ninth Circuit (“Court” or “Court of Appeals”), in a published opinion, reversed the judgment of the District Court, and found, under California law, Plaintiffs could proceed with their case against Gerber Products Company (“Gerber”). The issue? Whether Plaintiffs (a certified class of parents) had alleged a valid legal claim that a Gerber fruit juice product, developed for toddlers, was deceptively marketed.

Gerber, “one of the most trusted names in baby food and baby care,” marketed its Fruit Juice Snacks product (“Snacks”) in a package featuring images of fruit such as oranges, peaches, strawberries and cherries. The side panel of the packaging described the product as made “with real fruit juice and other all natural ingredients.” In addition, another side panel contained a statement announcing Snacks was, “one of a variety of nutritious Gerber Graduates foods and juices.”

Thinking they purchased healthy snacks for their kids, Plaintiffs sued Gerber under, among other things, California state tort law for misrepresentation and breach of warranty, as well as claims under California’s Unfair Competition law (Bus. & Prof. Code § 17200, et seq.) and California’s Consumer Legal Remedies Act (Civil Code § 1750, et seq.). Plaintiffs’ deception claims were based, in part, upon the following allegations: (1) The product contained no fruit juice from any of the fruits pictured on the packaging; (2) The only juice contained in the product was white grape juice from concentrate; and (3) The two most prominent ingredients in the product were corn syrup and sugar.

Gerber filed a motion to dismiss and the District Court granted Gerber’s motion fining the package statements were not likely to deceive a reasonable consumer. The Court of Appeals disagreed. In reversing the District Court’s order, the Court recognized that “whether a business practice is deceptive will usually be a question of fact not appropriate for decision on demurrer.” It further found a number of Gerber’s packaging features could likely deceive a reasonable consumer. “The product is called ‘fruit juice snacks’ and the packaging pictures a number of different fruits, potentially suggesting (falsely) that those fruits are contained in the product,” stated Judge Pregerson in the Opinion of the Court. Further, the Court found the statement that the product “was made with ‘fruit juice and other all natural ingredients’ could easily be interpreted by consumers as a claim that all ingredients in the product were natural, which appears to be false.” Disagreeing with the District Court, the Court found, “reasonable consumers should [not] be expected to look beyond misleading representations on the front of the box to discover the truth from the ingredient list in small print on the side of the box.”

Finally, in a statement sure to make consumer products manufacturer’s take note (especially those marketing products for infant or toddler use), the Court added, “We do not . . . think that a busy parent walking through the aisles of a grocery store should expect to verify that the representations on the front of the box are confirmed in the ingredient list. Instead reasonable consumers expect that the ingredient list contains more detailed information about the product that confirms other representations on the packaging. We do not think the FDA requires an ingredient list so that manufacturers can mislead consumers and then rely on the ingredient list to correct those misrepresentations and provide a shield for liability for the deception.”

Practice Note: In reading the full opinion, this commentator is of the opinion the Court of Appeals, while correct on the application of the law, held Defendant Gerber to a higher standard than that of an ordinary manufacturer of consumer products. Gerber, in its own words, is “one of the most trusted names in baby food and baby care.” The Court likely took note of this when crafting its opinion. One wonders if the same standard would have been applied to a beer manufacturer or a coffee beverage manufacturer, i.e. products marketed to and primarily intended for adults.

In July of 2006, Nestle Waters North America, launched a campaign directed at kids for its new AquaPod waters, specially shaped water bottles designed to promote water-drinking among teens. Included in the campaign were commercials that featured children not obeying their parents and characterizing the parents as “nags.” According to CARU, the self-regulatory agency that requested Nestle remove the ads from the website, one parent wrote “I strongly object to this kind of advertising, which undermines my role and responsibilities as a parent to instill values and a work ethic in my children.”

Nestle agreed to remove the troublesome ads by the end of September.

It now appears that parents are characterized as Zombies on the site. That’s much better.

The FTC is getting serious about children’s privacy. According to the FTC website, xanga.com (and its pricipals, Marc Ginsburg and John Hiler) agreed to pay a whopping $1 Million in civil penalties for violating the Children’s Online Privacy Protection Act (“COPPA”).

According to the FTC, the xanga site allowed users under the age of 13 to sign up for a free account, despite the proscription on the sign-up page. Xanga failed to secure parental permission from those users, even when they used a birthdate that clearly made them underage.

Practice Pointer:
Many companies mistakenly believe that they are in compliance with COPPA guidelines if their content is adult directed or if they post a statement that no one under 13 is allowed to register on the site. In fact, companies may be in violation of COPPA in the following situations:

As the FTC continues to crack down on social sites, the fnes and corrective measures (including scrapping an entire mailing list) that the FTC will require will continue to increase. If you are uncertain whether you should be in compliance, contact us

The Children’s Advertising Review Unit (“CARU”) determined that the advertising, aired on Nickelodeon, for a new SpongeBob SquarePants DVD violated the CARU Advertising Guidelines prohibiting advertising placement of a product during the show that features the same characters. Nick was quick to remove the problematic ad placement, noting that human error was the culprit.

Advertisements placed during a show, or directly adjacent to a show, which showcase the subject of the show, tend to lead children to the conclusion that the character (in this case, SpongeBob) is endorsing the product. CARU believes this sort of advertising is unfair to children (and parents).

The Children’s Advertising Review Unit (“CARU”) issued a press release today stating that food company Kellogg’s, which markets to children on children’s programming, has agreed to remove the tagline It’s the Fruit Snack with a Twist from its “Twistables” fruit-flavored snacks. The press release also stated that Kellogg’s has agreed to remove from its television ads, a voice-over stating that the product is “Made With Real Fruit.”

CARU was concerned that the use of “fruit snack” in the advertising and the voice-over stating that the product was “made with real fruit,” would give children the impression that the product was mostly fruit. Kellogg’s agreed to change the voice over to “fruit-flavored.” Very good, Kellogg’s. You get a (fruit-flavored, partially hydrogenated, made-with-real-fruit pieces) red apple.

The Viral & Buzz Marketing Association has aligned itself with Massachusetts representative Mike Festa, who has introduced a bill that, if passed, would require that children get parental permission before participating in Buzz marketing efforts. The Bill focuses on online word-of-mouth programs that encourage children to “talk up” products or services to their friends in exchange for free gear.

Although the Children’s Online Privacy Protection Act (COPPA) does not directly address viral marketing issues, it does require that marketers seek verifiable parental permission prior to marketing to children under the age of 13. The current bill would likely affect marketers who want to use children in their viral campaigns because it would effective increase the age — by three years — for which marketers would have to seek permission (at least for viral campaigns).

The growth of the Internet and increasing legislature to curb spam have given rise to an increase in viral marketing campaigns as a way of getting the message out without violating the CAN-SPAM Act, which went into effect in 2004. Although many companies do not use children to spread the word online, they do use children (often called “influencers”) to share products at school and with their friends. If the bill passes, it could mark a sea-change in the way companies appealing to kids market their products.

Mattel’s new television commercial, which advertises its new JUICE BOX personal video-stereo system caught the eye (or ire) of the Children’s Advertising Review Unit (CARU), which monitors advertising directed at children.

The JUICE BOX is a media player that allows children to play music, look at digital photoes, and even watch programming. The JUICE BOX, which contains a proprietary software, plays software called ‘JUICE WARE.” While the commercial adequately informed children of all the cool things the JUICE BOX could do, it was less clear that in order to do those things, additional purchases would be required. Indeed, in addition to purchasing the JUICE BOX player, parents still had to plunk down ducats for the Juice Ware Chips and Jice Box MP3 Starter Kit if they wanted the player to be used to its full potential.

Mattel was not inclined to change the JUICE BOX commercials, maintaining that their disclosures were adequate and complied with CARU guidelines, but did thank CARU for helping to “ensure responsible advertising practices” . . . . especially when it comes to the competition.

The Children’s Advertising Review Unit (“CARU”) announced today that it has reached an agreement with Conair Corporation, relating to its battery-powered toy that strings beads onto children’s hair strands.

The commercials, claim CARU, suggested that girls who purchased the product would be more popular with boys. One of the CARU self-regulatory guidelines states that children should not be pressured into purchasing a product because they think it will make them more popular.

The commercial in question featured a girl being told by her friends that she “might want to work on that hair,” before going out. Once she used Conair’s beading device, the commercial shows a boy nodding and smiling his approval at her new look.

While Conair disagreed with CARU’s findings, it has agreed to remove the scene containing the boy.