The Public Health Advocacy Institute (PHAI), with support from the Robert Wood Johnson Foundation’s Health Eating Research program, has released a legal issue brief titled “It’s Not Just for Teens: Viral Marketing to Young Children.” Intended as a guide for state attorneys general and claiming that “[f]ood marketers are in the forefront of using viral marketing online,” the paper contends that this use of “viral marketing techniques to young children warrants careful scrutiny under state consumer protection laws.” The paper describes how (i) this marketing works, (ii) companies make money from the practice and (iii) the practice is deceptive. According to PHAI, “Viral marketing turns children into unwitting viral marketers promoting a company’s brand image and products to their friends. . . . Despite the sophistication of the technology they use, children today remain uniquely ‘unqualified by age or experience’ to evaluate viral marketing and firms use deceptive tactics to hide the true intent of viral marketing.”

As an example, the paper focuses on a McDonald’s advergame that “deceptively told children that they were sending their friends a game when in fact they were sending their friends commercial advertisements [thus turning them] into unpaid sales agents by using deception to get them to provide their friends’ first names and email addresses—information that is used to generate valuable personalized email advertising messages to recruit other potential child-customers and gain access to their data.” The paper concludes, “Children who receive viral marketing messages like personalized email advertisements are exposed to marketing for products that are potentially detrimental to their health like fast food and sugary cereals. . . . The use of viral marketing tactics to market unhealthy food products to young children deserves special scrutiny by state regulators under the state UDAP [Unfair and Deceptive Acts and Practices] authority.”