This past fall, the Children’s Advertising Review Unit (CARU) issued a big juicy Decision (Report #6455) that I’ve been meaning to blog about since, as it covers a plethora of issues advertising and promotions lawyers deal with regularly, for kids and adults alike.  Better late than never! 

The inquiry involved the insanely popular MrBeast Youtube channel, hosted by Jimmy Donaldson. The channel, with its 400 million+ subscribers features contests, physical challenges, and other opportunities to win prizes.  The channel is considered family-friendly, features children, and has a huge child fan base.  At issue in the challenge too were the brands owned in part by the MrBeast Youtube channel corporate parent: Lunchly, a lunch kit brand, and Feastables, a chocolate bar brand. In addition to data collection and COPPA compliance issues, the Decision focuses on three advertising issues, addressed below.

Blurring the Lines Between Content and Advertising Is Never Good, Especially With Kids

First, CARU addressed the issue of whether the advertisements featured in video descriptions and pinned comments on the Youtube channel were clearly identifiable as advertising. CARU noted that it found numerous videos on the channel where the video description contained advertising for an unrelated product “and blurred the distinction between content and advertising.” As CARU noted, such blurring is particularly problematic for young audiences because they lack the discernment to know when they’re being advertised to. CARU’s Ad Guidelines require advertisers to be transparent when advertising to children and require that advertisements must be easily identifiable as such. Although the advertiser disagreed that children were interacting with the content at issue, CARU found that extrinsic factors such as MrBeast’s toy product line and animated series were evidence that kids under 13 are a sizeable part of the MrBeast fan base. 

Taste Tests Have Rules (Even If They’re Funny)

Second, CARU addressed a video in which the advertisers conducted a “blind taste test” between the new Feastables chocolate bars and “top European chocolates.” The video did not specify the brand or types of chocolate included in the taste test. But by closely examining the video, CARU determined that the test included three milk chocolate bars and one dark chocolate bar. In the  taste test, the participants all started with the Feastables milk chocolate and then they all tasted the dark chocolate bar.  After that, they tasted the other two milk chocolate bars. The results showed a unanimous preference for the Feastables bar. CARU was concerned that this was not a valid taste test, though it determined that it was depicted as such and used to “prove” that the new Feastables bars taste better than top European chocolate bars. The advertisers argued that the taste test was not intended to be taken seriously as a real taste test. However, CARU was concerned that children in the audience would reasonably believe it was an actual taste test and that the test proves that the Feastables bars taste the best. 

Sweepstakes Require Clearly Disclosed Free Method of Entry, Especially When There’s a Purchase-Based Method of Entry

CARU next focused on two of the sweepstakes promoted by the advertisers, both of which included a purchase-based method of entry and used language like “MORE BARS=MORE ENTRIES.”  CARU had several issues with the sweepstakes, including promotion of overconsumption of the chocolate bars: like the golden ticket promotion in Charlie and the Chocolate Factory, each chocolate bar purchased would provide an entry.  And, according to CARU, although the sweepstakes included an alternate (non-purchase) method of entry, that alternate method was inadequately disclosed, particularly in a promotion to which children would be attracted (notwithstanding the older age eligibility).  CARU also determined that the advertiser inadequately disclosed other material information such as the odds of winning, and minimum age requirements; and it failed to implement a neutral and effective age gate. 

The advertisers did not agree with all of CARU’s conclusions or the “premises on which they were based” but they did agree to take CARU’s concerns into account in its future advertising in children’s media.  While all of the practices at issue raise particular concerns in the context of children’s advertising, and trigger application of CARU’s Advertising Guidelines, they are relevant to all advertisers, not just those marketing to kids.