August 28, 2013

FTC Asked to Teach Marketers of Mobile Apps for Babies a Lesson

Seller Beware: Consumer Protection Insights for Industry,

Thanks to a widening variety of mobile applications targeted at babies and children, parents can increasingly rely on their mobile devices to help entertain their little ones. Two complaints filed with the Federal Trade Commission (FTC) on August 7, 2013, however, request an investigation into claims that particular apps designed for babies and children are educational. The claims were filed by Boston-based advocacy group Campaign for a Commercial-Free Childhood (CCFC).

One complaint asks the FTC to investigate claims by Fisher-Price regarding the educational benefits of its series of "Laugh & Learn Apptivity" apps, offered for iPhone and iPod devices. According to the complaint, Fisher-Price claims that these apps teach babies their first words, letters, numbers, counting, shapes and colors. The apps are sold under the "Education" category of Apple's App Store. The complaint alleges that these marketing statements are unsubstantiated and violate Section 5 of the Federal Trade Commission Act. In a statement to the New York Times, the senior director of child research at Fisher-Price, Kathleen Alfano, said that the company conducts extensive research "to create appropriate toys for the ways children play, discover and grow" and that it had "appropriately extended these well-researched play patterns into the digital space."

The other complaint asks the FTC to investigate similar claims by Slovakian company Open Solutions about its mobile applications targeted toward babies. The complaint regarding Open Solutions was withdrawn on August 14, 2013, following substantial changes to the company's marketing of its mobile apps. Among other things, Open Solutions removed statements from its marketing materials that its apps would "entertain and educate your baby," that they were "designed by parents for young babies," and that they would help babies "practice motor skills, shapes, logic and precision." Open Solutions also removed the statement "we love to build the best learning apps for your kids" and all statements that said that a particular app was "for babies' of a certain age (for example, "0-6 years" or "1-7 years").

The complaints allege a lack of research by either the companies themselves or by third parties supporting the companies' claims that mobile apps for touch-screen devices have any educational benefits to children. The CCFC argues in its complaints that while no research "definitively shows the harms of educational apps on very young children," existing research indicates that screen time for very young children may do more harm than good when it comes to early learning and development. The CCFC points to the American Academy of Pediatrics' recommendation that children under two years of age should have no screen time at all. The complaints contend that the educational claims about the mobile apps are likely to mislead reasonable parents. In particular, with regard to Fisher-Price, the complaint alleges that the educational claims in combination with "Fisher-Price's reputation as a leader in baby toys" imply that the claims about educational value are substantiated.

The FTC has previously considered advertising claims about the educational value of certain toys and products for children. For example, in August of 2012, the FTC filed a complaint against Your Baby Can, LLC and its CEO over the "Your Baby Can Read!" program, which the company claimed could teach children as young as nine months old how to read through the use of flash cards, videos and pop-up books. The complaint also charged the product creator with making deceptive product endorsements. These charges were eventually settled with the FTC.

The FTC has recently provided guidance to mobile app developers to help them comply with the FTC's policies on truthful advertising and privacy. In April of this year, the FTC published a guide entitled Marketing Your Mobile App: Get It Right From the Start, which we blogged about here, and accompanying video, discussed here. The guide and the video focus on the need to make truthful statements, disclose key information, and ensure that objective claims are supported by "competent and reliable evidence." The FTC's 1984 Policy Statement Regarding Advertising Substantiation provides more detail regarding the FTC's requirement "that advertisers and ad agencies have a reasonable basis for advertising claims before they are disseminated." Although it is not clear whether the FTC will pursue the complaint against Fisher Price, these recent complaints are a reminder that advertisers should take care to ensure that they have competent and reliable evidence to support any objective claims made about their mobile apps.

© Arnold & Porter Kaye Scholer LLP 2013 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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