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Consumer Groups Take Aim at Immersive Teen Advertising

8 Nov, 2011 By: Jeffrey D. Knowles, Venable LLP’s Advertising

On Oct. 19, the Center for Digital Democracy, Consumer Action, Consumer Watchdog and the Praxis Project, alleged that PepsiCo and Frito-Lay’s Doritos brand violated Section Five of the FTC Act, which prohibits false or deceptive advertising, during a number of campaigns designed to reverse Doritos’ falling sales to teenagers.

The groups write in the complaint that "Frito-Lay is well aware that teens are uninterested in advertising and therefore chooses to disguise its marketing as a more appealing format by employing minimal branding, immersive techniques, and viral marketing designed to make teens believe they are playing a video game or watching a concert rather than viewing advertisements." They also allege the “concealment of the nature of [Doritos] marketing to increase the likelihood that the consumer will take the desired action is a deceptive practice under Section Five."

Some of the campaigns, such as the “Doritos Late Night Concert” series, carried explicit Doritos branding. Other promotions were branded as “Snack Strong Productions.” Although the Snack Strong campaigns did not explicitly state that Doritos was the sponsor, the campaigns did carry a significant amount of Doritos branding. For instance, the logo for Snack Strong Productions was the very recognizable Doritos logo. In addition, each of the campaigns integrated the use of Doritos packaging to control an element of the user experience. These factors, taken together, would seem to limit consumer confusion about the source and purpose of the experience.

On the same day the “Doritos” complaint was filed with the Federal Trade Commission (FTC), the National Policy and Legal Analysis Network to Prevent Childhood Obesity (NPLAN) published "Digital Food Marketing to Children and Adolescents: Problematic Practices and Policy Interventions" in a cooperative effort with the groups filing the Doritos complaint. The report calls on industry and regulators to develop “Fair Marketing Principles” to guide companies that use digital media to promote their brands to teenagers.

So, what does the Doritos complaint mean for the direct response community? Marketers should expect consumer advocates to take a long, hard look at immersive and social media-based brand experiences and use them as leverage to advance the “Fair Marketing Principles.” This will be especially true for campaigns that focus on children or teenagers.

Even if the FTC declines to investigate this complaint, it is likely that Frito-Lay or another marketer will soon face similar challenges in the form of a consumer class action or other legal action. In the meantime, marketers and their counsel should thoroughly review the content and disclosures associated with these high visibility campaigns to mitigate risk and insulate their brand from unnecessary legal exposure.

Jeffrey D. Knowles is a partner in Venable LLP’s Advertising, Marketing and New Media Group. He can be reached at (202) 344-4000, or via E-mail at

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