Rethinking Regulation of Advertising Aimed at Children

I. INTRODUCTION: A BRIEF HISTORY OF THE REGULATION OF ADVERTISING AIMED AT CHILDREN II. THE SCOPE OF THE CTA AND THE GOVERNMENT'S GENERAL PURPOSE IN PRESCRIBING COMMERCIAL LIMITS FOR CHILDREN'S TELEVISION PROGRAMS III. THE HARMS CAUSED BY ADVERTISING TO CHILDREN AND THE NEED FOR FURTHER GOVERNMENTAL REGULATION A. Advertising's Effect on Children's Health B. Advertising's Effect on Children's Materialistic Nature C. Advertising's Role in Re-Enforcing Racial Stereotypes IV. A CONSTITUTIONAL ANALYSIS OF THE CTA A. The Lesser First Amendment Protection Given to the Speech Regulated by the CTA B. An Analysis of the CTA Under Central Hudson's Four-Prong Test 1. Prong One: Are Commercials Aimed at Children Misleading? 2. Prong Two: Does the Government Have a Substantial Interest in Protecting Children from Advertising? 3. Prong Three: Does the CTA Substantially Protect Children from the Harms of Advertising? 4. Prong Four: Is the CTA More Extensive Than Necessary to Achieve the Government's Goals? V. BETTER WAYS TO ACHIEVE THE GOAL OF PROTECTING CHILDREN FROM THE HARMS CAUSED BY ADVERTISING AIMED AT CHILDREN A. The Reluctance of the FTC to Initiate Further Regulation B. The Government Should Regulate the Content Instead of the Amount of Commercial Material Aimed at Children 1. Commercials Aimed at Children Should Be Required to Contain Additional Information That Would Reduce the Commercials' Tendency to Mislead 2. Cartoon Characters and Celebrities Should Not Appear in Commercials Aimed at Children 3. Regulation Should Apply to All Commercials Aimed at Children Instead of Only Commercials That are Aired During Programs Aimed at Children VI. WAYS TO PROTECT CHILDREN FROM ADVERTISING OTHER THAN GOVERNMENT REGULATION VII. CONCLUSION I. INTRODUCTION: A BRIEF HISTORY OF THE REGULATION OF ADVERTISING AIMED AT CHILDREN In the 1970s, both the Federal Communications Commission ("FCC") (1) and the Federal Trade Commission ("FTC") (2) completed extensive examinations of advertising directed at children. The FCC issued a policy statement asking networks to voluntarily limit the amount of commercial time aired during programs directed at children. (3) The FTC compiled a staff report stating that it was fundamentally unfair for advertisers to direct commercials at children and issued a Notice of Proposed Rulemaking in 1978 that proposed major regulation of advertisements aired during children's television. (4) The FTC received harsh political and public response to this proposed rulemaking. The Washington Post called the proposal "a preposterous intervention that would turn the FTC into a great national nanny." (5) Congress responded to the FTC's proposal not only by passing legislation limiting the FTC's power to enforce any rule relating to children's advertising, but also by failing to renew the FTC's funding, in effect shutting down the agency temporarily. (6) After the FTC's unsuccessful attempt to regulate advertising aimed at children, there was not much governmental involvement in the area until 1990, when Congress passed the Children's Television Act ("CTA"), (7) which instructed the FCC to enforce certain requirements for television broadcasters. At this time, the FCC was still opposed to government involvement in this area and preferred to let the market regulate itself. (8) The two main requirements of the CTA are: (1) the FCC must establish standards for broadcasters regarding the amount of children's television programming aired; (9) and (2) broadcasters must limit the amount of commercial time aired during children's television programs to 10.5 minutes per hour or less on weekends and 12 minutes per hour or less on weekdays. (10) This commercial limit applies to over-the-air commercial. …