A Brazilian lawsuit filed against YouTube’s owner Google is raising questions about whether toy unboxing videos are manipulating kids—and whether similar suits could eventually be filed in the U.S., citing laws that prohibit aggressive marketing to children.
The lawsuit, filed in January by the public prosecutor’s office in São Paulo, Brazil, accuses YouTube of “engaging in abusive advertising practices toward children,” Vox reports. The suit hinges on prosecutors’ assertion that most videos in the popular genre, even if they’re not marked as ads, are still advertisements. In Brazil, it’s completely illegal to market anything to kids under 12.
For those not familiar with toy unboxings, it’s a booming subset of videos on YouTube where people—sometimes kids, sometimes adults—unbox and play with toys. It can be an enormously lucrative business for some creators, like 7-year-old Ryan ToysReview, who’s amassed 18 million subscribers, nets around 600 million views per month, has his own product brand, and is estimated to have earned $22 million last year.
Many creators in the space make videos sponsored by toy companies. Some YouTubers whose videos aren’t directly sponsored are still sent free toys to talk up on their channels. Six of those creators, and a collective 105 of their videos, were named as examples in the Brazilian lawsuit: Julia Silva (4.4 million subscribers), Gabriella Saraivah (3.6 million), Felipe Calixto (2 million), Manoela Antelo (1.6 million), Marina Bombonato (1 million), and Vida de Amy (527,000). Prosecutors allege the YouTubers made unboxing videos aimed at kids that count as marketing.
Here’s an example of Silva’s videos, where she unpackages a blind item toy ball. (On YouTube, this video is marked as an ad.)
The lawsuit is due to be heard by the São Paulo Court of Justice (an exact date was not announced). If Google loses the case, that likely won’t affect how toy unboxing creators operate in the U.S. But the lawsuit does open up a larger question that could eventually affect stateside YouTubers: Do lengthy, sponsored toy unboxing videos violate laws protecting kids from too much advertising?
If the answer to that ends up being “yes,” it’s possible a huge number of videos could be in violation of one of the U.S. laws protecting kids from too much marketing: the Children’s Television Act (CTA). Passed in 1990, the CTA limits the amount of advertising overall that can be stuffed into children’s programming. Current limits are 10.5 minutes of advertising for every hour of programming on weekends and 12 minutes of advertising per hour on weekdays.
(Additionally, if toy unboxings are judged to be ads, then some videos could also be found in violation of Federal Trade Commission rules that require influencers to “clearly and conspicuously” disclose when videos are ads. Many creators do properly disclose when their unboxing videos are ads, but others don’t.)
So where does the CTA come in with long videos that are just advertisements for toys, specifically aimed at kids? Right now, it doesn’t; sponsored videos intended to market toys to kids have yet to see a challenge, likely because the genre is still a nascent digital ecosystem. Before the rise of YouTube’s unboxing genre, if toy companies wanted to run a truly lengthy ad, they’d book infomercial space—but that might be money burned since no kids are watching TV during 3am marketing slots. YouTube is providing a totally new medium and platform for largely unrestricted advertising that does reach kids’ eyes. And companies see that as a positive.
“TV commercials give you 15 seconds to communicate what the key thing is about, but YouTube gets you minutes, sometimes hours,” Jonathan Berkowitz, president of Hasbro, told Vox.
Isaac Larian, the CEO of MGA Entertainment (which makes Bratz and L.O.L. Surprise! Dolls, which were specifically created for YouTube toy unboxings), concurred. “When they do an unboxing video of one of our toys, the number of their subscribers go up, and they make money, and they drive interest for us,” he said. “It’s a circle, and it’s become its own advertising universe.”
And that “advertising universe” is exactly the kind of manipulative content the CTA is supposed to be protecting kids from, experts told Vox.
“This content is unfair because it’s an ad disguised as a fun video, and the influencers are very, very good at making kids feel like they are watching the most fun toy out there,” Josh Golin, the executive director of nonprofit Campaign for a Commercial-Free Childhood, said. “It’s also deceptive to parents because they have zero understanding of what their kids are watching.”
He added that unboxing videos “would never be allowed on children’s television.”
To be fair, not every expert thinks toy unboxings are damaging. David Craig, a professor who published academic research about the genre, told Vox the “moral panic” over them is akin to the panic surrounding violent video games in the ’90s. “I believe this is a larger developmental misunderstanding; your children have grown up on these social networks, they know much more than you think they do,” he said. “In the minds of kids, more likely, the blurred lines are able to exist. There’s little to suggest that kids are watching these videos to covet toys. They are really just socializing and playing virtually with kids online.”
The CTA hasn’t yet been enforced on any YouTube videos, but this isn’t the first time the law has recently come up in connection with YouTube. Back in September, investigative channel Nerd City uploaded a video theorizing that Jake Paul violates the CTA by including an excessive amount of merch-hawking in videos aimed at kids.
In the video, Nerd City presents an example of one Paul upload where, in 13 minutes and 57 seconds, Paul slots in 23 separate ad reads that make up nearly seven minutes of the video’s runtime. If Paul’s videos were directed at adults, the constant ad reads would merely be annoying. The reason they could be outright illegal is Paul’s repeated assertions that his videos are geared toward kids as young as 8 years old.
Following Nerd City’s video, no public action has been taken against Paul, though he may be crossing lines by having large amounts of his videos’ runtimes made up of ads. But toy unboxings take things even further—it’s a genre where videos that are minutes or even hours long are entirely advertising.