The Federal Trade Commission, on the heels of its September 2000 report entitled “Marketing Violent Entertainment to Children: A Review of Self-Regulation and Industry Practices in the Motion Picture, Music Recording & Electronic Game Industries,” has issued another report regarding the marketing of violent entertainment products to minors.  (The initial report was discussed in The First Amendment and the Media - 2001 at p. 219.) 

     The follow-up report indicates that the motion picture and electronic game industries have made some progress in limiting advertising of violent materials in popular teen media and in providing ratings information in all advertising of their products.  The  FTC was unimpressed with the efforts of the music industry.    

     Still, the FTC affirmed its earlier view that vigilant self-regulation is the best approach for ensuring that parents are provided with adequate information to guide their children’s exposure to entertainment media with violent content.  The report is entitled “Marketing Violent Entertainment to Children: A Six-Month Follow-Up Review of Industry Practices in the Motion Picture, Music Recording & Electronic Game Industries” (released April 25, 2001).  Despite the recommendation of the FTC that self-regulation be the watchword, two bills were introduced in Congress that would regulate these industries. 

     This report responded to a request from Chairman John McCain (R-Ariz.), Ranking Member Ernest F. Hollings (D-S.C.), and Sens. Max Cleland (D-Ga.) and Sam Brownback (R-Kan.) of the Senate Committee on Commerce, Science, and Transportation.  The senators sought answers to two questions: (1) whether the entertainment media industries continue to advertise R-rated movies, “explicit content”-labeled music, and M-rated electronic games in popular teen media; and (2) whether the entertainment media are including ratings information in their advertising. 

     For this reason the follow-up report, unlike the September 2000 study, relied on advertising monitoring rather than internal industry documents.  The FTC focused on four sources that attempt to convey information about entertainment products to those under the age of 17: (1) television, magazine, and newspaper advertising; (2) movie trailer placement; (3) official industry Web sites; and (4) industry trade associations.

     In response to the September 2000 report, the Motion Picture Association of America promised that each studio would review its marketing and advertising practices to avoid exposing children to advertising for films rated R for violence.  The FTC believes the movie industry has generally achieved this goal. 

     The FTC found that, although studios continue to advertise R-rated movies at the times and on the programs that are most effective in delivering those ads to teen viewers, relatively few films rated R for violence were advertised during prime time.  Similar results were found with regard to the print media, where the FTC did not identify any advertisements for R-rated movies in magazines geared toward teenagers.  There was also substantial compliance with industry pledges regarding trailer placement.  The few violations of the pledge not to run trailers for R-rated films before G-rated or PG-rated films appeared to be the decision of individual theater operators rather than the studios or theater chains. 

     The results were a little less encouraging regarding the content of the advertisements themselves, even when those ads were found in media geared toward adults.  While every advertisement for an R-rated movie carried the film’s letter rating, the rating reasons were often difficult or impossible to read due to small type, a fleeting description of the movie’s content, or partial obscurity in the face of other information about the cast and production.  Generally, print advertisements fared better under this scrutiny than television advertisements.  After surveying 35 movie Web sites, the FTC found that nearly all contained the film’s letter rating, and approximately 75 percent provided the reasons for this rating. 

     The FTC concluded that, overall, “the motion picture studios have clearly responded to the Commission’s recommendation to include rating reasons in advertising so that parents can better judge the appropriateness of a film for their children, and the self-regulatory system is very effective in ensuring that advertisements show the rating.  The remaining challenge is to make rating reasons as ubiquitous as the rating in advertising, and to present this important information clearly and conspicuously.”  “Marketing Violent Entertainment to Children” at 13. 

     Shortly before the September 2000 report was issued, the Recording Industry Association of America announced that advertising for “explicit content”-labeled recordings should not appear in media whose primary demographic is 16 years of age or younger.  Immediately after the release of that report, however, the recommendation was withdrawn due to heightened scrutiny from Congress, the FTC, and several states that carried the threat of increased law enforcement actions against music companies.

     The FTC found that the advertising of “explicit content”-labeled recordings appeared regularly on television programming airing in the afternoon hours.  Print media advertising was similar, with all five major recording companies placing advertisements for “explicit content” recordings in magazines with high youth subscriber rates.  The FTC flatly chastised the industry for this standard, stating “there has been neither self-regulatory guidance from the RIAA nor commitments from individual music companies to limit the placement of advertisements for music recordings stickered with the parental advisory label.  Id. at 15.

     The FTC determined that there has been no increase in the number of advertisements containing the actual “explicit content” label in major media advertising.  However, according to the RIAA, the record companies have recently started to place these labels in print advertising; since requests for print advertisements must be placed months in advance, such disclosures are only now beginning to appear.  Still, the FTC report found that only 31 print ads for labeled recordings displayed any parental advisory label, which was often simply a black-and-white blur that was too small or inconspicuous to be read clearly.  Music industry Web sites proved no better.  The advisory label appeared in 39 percent of the 40 official music Web sites surfed, with only two advisories being legible. 

     The electronic game industry had in place, pre-September 2000, a comprehensive self-regulatory system that included a prohibition on marketing games to children under the age designated in the rating.  However, in its September 2000 report, the FTC noted widespread violation of this provision with many instances of express targeting of “mature”-rated games to children. 

     The FTC reviewed a number of television programs airing in the prime-time and afternoon hours that are popular with teens, and found no instances where an advertisement for a “mature”-rated game appeared during these broadcasts.  By contrast, there were a number of advertisements during these programs for games rated appropriate for teens and appropriate for all ages.  The results were quite different for the print media, where at least 40 percent of the audience is under 16 and there exists a significant amount of advertising of “mature”-rated games -- 12 percent of all advertisements in these magazines was for “mature”-rated games. 

     The industry appeared to be adhering to the part of its code requiring voice-overs during advertising that announce a game’s rating, though the code does not require a content description.  Results from the print media were mixed, with approximately half of all advertisements containing the rating or a content description, though none contained both.  Still, the FTC was encouraged by signs of improvement since the September 2000 report. 

     The report indicated that Congress wanted another follow-up report in the fall of 2001.  This report has not been issued.  Rather than recommend a  legislative or regulatory solution, the FTC concluded that individual industry members should keep the industry’s own commitments and endeavor to go beyond those commitments to meet the suggestions originally made in September 2000.

     Congress did not even wait for these industries to respond to the FTC report.  On April 26, 2001, Sen. Joseph I. Lieberman (D-Conn.) introduced the “Media Marketing Accountability Act.”  The bill, S. 792, was co-sponsored by Sens. Herb Kohl (D-Wis.), Hillary Clinton (D-N.Y.), and Robert C. Byrd (D-W. Va.).  On June 20, 2001, Rep. Steve Israel (D-N.Y.) introduced H.R. 2246, the House companion, co-sponsored by Reps. Ken R. Lucas (D-Ky.) and Tom Osborne (R-Neb.). These bills were essentially identical in nature.

     The legislation contains three sections:

     (1) Findings.  The findings build on the September 2000 FTC study.  This section notes that: (1) 80 percent of the R-rated movies studied had been marketed to children under the age of 17, while marketing plans for 64 percent of the R-rated movies studied explicitly mentioned children under the age of 17 as part of the target audience; (2) marketing plans for all music recordings with “explicit content” labels either specifically mentioned children under the age of 17 as part of the target audience, or called for ad placement in media that would reach a substantial percentage of children under 17; and (3) 70 percent of “mature”-rated video games studied were marketed to children under the age of 17, with 51 percent of the marketing plans specifically mentioning children under 17 as part of the target audience.  Additionally, 91 percent of video game manufacturers studied had, at one time, expressly identified children under the age of 17 as the core, primary, or secondary audience of a “mature”-rated game. 

     (2) Prohibitions on Targeted Marketing to Children.  The basic thrust of the legislation is to allow the FTC to prosecute the targeted advertising or marketing to minors of an adult-rated motion picture, music recording, or electronic video game as a deceptive practice within the meaning of Section 5 of the Federal Trade Commission Act.  Violations of this Act carry a fine of $11,000 per day.

     The legislation broadly defines “targeted advertising or marketing” as advertising intentionally directed to minors; advertising presented to an audience of which a substantial proportion is minors; or anything else the FTC may determine is directed or targeted to minors.  A minor is defined as anyone below the age established as appropriate for that product; in no event does it include anyone 17 or older.  

     An “adult-rated” product is defined as one that has a rating or label voluntarily assigned by its producer or distributor that indicates the product is or may be appropriate only for adults.  In the case of a music recording, it also includes any rating or label that indicates the product contains explicit content in the form of strong language or expressions of violence, sex, or substance abuse.

     Any government-mandated ratings or labeling structure would almost certainly be unconstitutional.  Therefore, the legislation sets up a voluntary self-rating and self-regulatory scheme with criteria laid out by the FTC.  These criteria must include the following elements: (1) an age-based ratings or labeling system; (2) prohibitions on the targeted advertising or marketing to minors of the products, and policies to restrict the sale, rental, or viewing of these products by minors; and (3) procedures within the industry for non-complying producers and distributors.  Any producer or distributor who complies with the self-regulatory scheme will not be subject to prosecution.

     (3) FTC Study of Marketing Practices of Entertainment Industries Regarding Adult-Rated Materials.  The legislation also directs the FTC to conduct a study of the marketing practices of the motion picture, music recording, and electronic video game industries regarding adult-rated products.  Among the issues to be studied are: (1) the extent to which industries market adult-rated materials to minors, with particular emphasis on whether the materials are promoted in media outlets for which minors comprise a substantial portion of the audience; (2) the policies in place to restrict the sale, rental, or viewing by minors of adult-rated products; (3) the extent to which these industries require, monitor, or encourage the enforcement of voluntary ratings or labeling systems by industry members; (4) the extent to which these industries educate the public regarding the existence and/or efficiency of their voluntary ratings or labeling systems; and (5) whether these policies and procedures are effective in restricting the access of minors to adult-rated materials.