Today, TechFreedom filed comments in response to the FTC’s October 2022 event entitled “Protecting Kids from Stealth Advertising in Digital Media” (the “Stealth Advertising Webinar”). Our comments stress that the FTC should resist the temptation to cast aside more than 50 years of reasoned analysis by Congress and multiple agencies to embark on an entirely new regulatory approach to advertising to children, deeming it inherently “unfair.” 

“Congress barred the FTC from writing rules regulating advertising to children as unfair,” said James E. Dunstan, TechFreedom’s General Counsel. “The FTC Improvement Act of 1980 clearly states the FTC shall not have any authority to promulgate any rules substantially similar to FTC’s proposed “KidVid” rules. Instead, the Commission should continue to use the tools it has at its disposal to protect children from deceptive advertising using existing standards and norms which have served it well across generations of children, and generations of media outlets.”

“The FTC cannot ignore the First Amendment implications of limiting advertising to children,” Dunstan continued. “Senator Cannon put it best in 1980: ‘No one would dispute that the FTC has the authority to regulate false or deceptive advertising. But regulating truthful, non-deceptive advertising is a new exercise in overregulation—made more objectionable by the presence of the First Amendment. . . Broad bans on advertising to children would also impact the ability of adults to receive the advertising message.’” 

“Restrictions on advertising to children on the internet would disproportionately impact poor and minority communities,” Dunstan concluded. “The children who would be most affected by broad bans on Internet advertising to children would be the poor, and minority children with fewer resources. Take away the economic engine of advertising from content producers, and content will have to retreat behind paywalls, into curated gardens, into ‘content fortresses,’ where one must pay to enter, either through monthly subscriptions or pay-to-play mechanisms. Harmed too will be smaller, newer, and less well-funded content producers, as those gardens are expensive to build and operate.”


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