AB 2388 – Child Performers’ Act: Social Media Influencers
PASSED on September 5, 2018

Kansen Chu, Assembly Member District 28

Final Law, with the language as passed, can be found at:
State of California Legislative Website — AB 2388

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BILL FACT SHEET April 2018

SUMMARY:

This measure clarifies that the existing laws protecting child performers who appear in advertising include children engaged as social media influencers.

BACKGROUND: The advent of the Internet and the explosive growth of online social media sites such as Instagram, YouTube and Facebook have given rise to a new form of fame based upon “likes,” “followers” and “views.” The most popular social media figures have quickly become the newest tool that marketers employ to advertise their products, due to the huge impact a post on a popular site or promotion of a product by a famous individual such as Kim Kardashian can have on a brand’s internet exposure. These social media advertisers are known as “influencers” for their ability to influence consumer behavior.

A recent FTC crack-down points out that influencers are advertisers. On April 19, 2018 the Federal Trade Commission was forced to send “educational letters” to 90 social media influencers who had failed to disclose that they were being paid for their posts on social media.

While famous adults such as Beyoncé and the Kardashians are well known as social media influencers, a large and growing market for kid influencers is gaining attention. A recent New York Times article on kid influencers asks, “Why Isn’t Your Toddler Paying The Mortgage?” Cosmopolitan Online ran a story about a 3 year old who earns thousands for every post, has worked with the Kardashians and even walked in New York Fashion Week entitled, “What It’s Like to Have an Instagram Famous Child,” and a January 2018 Buzzfeed story on the Stauffer family (featuring Mila, a break-out Internet star), wherein InstaMom Katie Stauffer declares she earns more than her husband the doctor, and enough from posting images of her kids to quit her job and focus on her new career as a media mom. In the same article the CEO of an influencer ad agency MediaKix stated, “Instagrammers of her size (Katie Stauffer) can get paid anywhere from $10,000-$20,000 per post…Top Instagrammers with millions of followers can make $500,000 or more in annual income from brand sponsorship.”

PROBLEM: While existing law regulates the employment of minors in the entertainment industry and requires the written consent of the Labor Commissioner for a minor under 16 years of age to take part in certain types of employment, including, “employment of a minor as an advertising or photographic model,” it is not well understood that social media influencers are engaged in advertising and therefore are covered under the law. This includes protections against dangerous working conditions, long or inappropriate working hours, financial abuse such as failure to place earnings in a Coogan Trust or pay taxes, and failure to assure privacy and protect children from online pedophiles.

SOLUTION: Clarify the existing law by stating the protections for child performers under the Labor Code extend to the employment of a minor in social media advertising. For purposes of this subdivision, “social media advertising” includes the use, demonstration, or placement of a product through a social media communication.

Staff Contact: Dana Mitchell
(916) 319-3453, Dana.Mitchell@asm.ca.gov