Judge Banishes Notorious Kars4Kids Commercial From California Airwaves

Screenshot via YouTube.

If you’ve ever heard the “Kars4Kids” television ad before, the mere sight of the screenshot above was probably enough to get the infernal jingle violently bludgeoning your brain, but relief may be in sight — at least for residents of California, and the case lays out a blueprint for annoyed residents of other states to follow.

The “Kars4Kids” jingle has been around since the late 1990s, first used on radio commercials in New York City and then spreading to air in other markets like a national musical pandemic, ending up in TV ads starting in 2014 that featured children dressed in pink and black, awkwardly miming playing instruments and singing along. It’s been parodied countless times; in a 2014 Saturday Night Live sketch, Bobby Moynihan and Kyle Mooney portrayed CIA psychologists who have devised some truly diabolical torture methods — including proudly taking credit for the Kars4Kids song.

A 2015 Vice article declared the jingle to be “universally loathed” and “as memorable as it is infuriating,” and noted the aggressively violent responses it evoked in social media posts:

To take a quick scan through mentions of “Kars4Kids” on Twitter, you’d get a glimpse into seemingly rational people being pushed to the darkest recesses of their psyches. They want to kill themselves. They want to kill the kids. They want to krash the kars. They want to krash the kars into the kids. It’s even uglier in the comments section of YouTube, where nuance is notoriously thrown out the window. “WORSE THAN EBOLA,” said one commenter. “I want to stick a knife into my ears,” said another. The phrase “ear cancer” gets thrown around like candy. (Comments for the original jingle have been disabled, likely for the best.)

The nonprofit organization behind the eardrum-torturing theme has a spotty history, Vice music writer Dan Ozzi noted, including “serious bad press and legal issues,” critical assessments by charity watchdogs for its “lack of transparency in its religious affiliations” and for burning through millions of dollars on failed real estate investments.

These sorts of issues led a California judge to issue an order banning the organization from airing its advertisements in California, as part of a lawsuit that was filed accusing Kars4Kids of false advertising by not helping underprivileged kids in California, but instead funding trips to Israel for Orthodox Jewish 17- and 18-year-olds in New York and New Jersey.

In the order, Judge Gassia Apkarian of the Orange County Superior Court of California noted how the plaintiff, Bruce Puterbaugh, had testified that “he was subjected to the Kars4Kids radio ‘jingle’ repeatedly (‘over and over’)” — even the court order notes the infernally ubiquitous nature of the ad — and had donated a 2001 Volvo to the organization, but then felt “taken advantage of” when he found out afterwards what happened to the funds raised by the donated vehicles.

The judge found Puterbaugh’s testimony to be credible in his belief that the charity was helping “‘underprivileged kids from all over the U.S.’ and expected that a donation made in California would benefit children in California; that the advertisement contained ‘nothing about specific religious affiliation’ and gave no indication that the benefits would be limited by geography, religion, or ethnicity; that he followed the ad’s directive to call the 877 phone number,” and that he felt “taken advantage of by the ad and information that was not there.”

Esti Landau, the Chief Operating Officer of Kars4Kids, gave “strikingly candid testimony,” the judge noted, about how the charity functioned:

She admitted that the 30-second advertisement, which has been running for two decades, “does not say anything” about the charity’s specific nature. She confirmed: that Kars4Kids is a Jewish organization, yet the word “Jewish” is absent from the ad.; that the primary function of Kars4Kids is to fund Oorah, an organization dedicated to Jewish heritage and summer camps in New York and New Jersey; that while 25% of revenue is derived from California, Kars4Kids has no functional programs in California beyond a “backpack giveaway” characterized as a branding exercise…

[Landau] testified…that Kars4Kids is a National Jewish non-profit that serves as the primary funding vehicle for Oorah; and that approximately $45 million is sent annually to Oorah, representing over 60% of Kars4Kids’ total funds, another 30% is spent on in-house advertising and 6% for administrative costs; and that of the 120,000 vehicles donated nationwide, approximately 30,000 (25%) originate from California…

Ms. Landau explicitly testified that the organization’s primary purpose is not to help economically disadvantaged children. She testified that Oorah’s programs include “matchmaking” for young adults and “gap year” trips to Israel for 17- and 18-year-olds (averaging 250 participants per year). She also admitted that Kars4Kids operates no functional programs in California. Their local activity is limited to “small grants” consisting of approximately 1,000 backpacks bearing the corporate logo, distributed to any child regardless of financial need. She also testified that Kars4Kids is not involved in how the money is spent once transferred; those decisions are left entirely to Oorah.

The court found that Kars4Kids had failed to disclose facts that misled consumers like the plaintiff in a way that constituted a “material omission,” and rejected the defendant’s attempt to assert a First Amendment defense.

“While charities have free speech rights, the government may regulate misleading commercial speech,” the judge wrote. “Fraudulent omissions in an inducement to donate property are not protected by ‘free expression.'”

Allowing the ads to continue to air, the judge reasoned, would risk continuing to mislead the California public and “thousands of California donors will continue to surrender property under the false impression that they are supporting local, secular, or underprivileged ‘kids,'” which would cause “a massive, ongoing transfer of assets based on a fraudulent omission.”

The burden for Kars4Kids, in contrast, was minimal, if they wanted to change the ad to comply with California law, Apkarian wrote, because “they do their advertising in-house,” “have the capacity to edit the ad immediately,” and have millions of dollars in assets. It was insufficient to disclose the information on the Kars4Kids website and expect that to inform people seeing the television commercial, the judge added.

The judge clearly rejected any claim Kars4Kids may have wanted to make about the catchiness of the ad, writing, “The interest of the state in preventing consumer fraud far outweighs the Defendant’s interest in maintaining a ‘memorable’ but deceptive jingle.”

It was in the interest of the public to enforce “transparency” in the “charity marketplace,” Apkarian wrote. “When a charity generates millions annually through a ‘jingle’ that conceals its primary religious and geographic focus, it creates an unfair playing field for local California charities that are honest about their missions. An injunction ensures that competition for charitable dollars is based on truth, not catchy, content-free, deceptive songs.”

The judge ordered Kars4Kids to reimburse Puterbaugh $250 (the value of the 2001 Volvo) and the costs of the suit, plus he can file a motion for reasonable attorney’s fees under California law.

The part of the order that is likely to be most interesting to Californians (and weary-eared residents of any other states with applicable consumer protection laws) is the part where the judge wrote that Kars4Kids “is hereby PERMANENTLY ENJOINED from broadcasting the ‘Kars4Kids’ jingle or any variation thereof in the State of California unless said advertisement contains an express, audible disclosure of its religious affiliation and the geographic location of its primary beneficiaries and the age of the beneficiaries, specifying whether they aim for children or families, or both.”

“The Defendant may no longer use images of prepubescent children to solicit donations that support individuals who have reached the age of majority,” the judge scolded.

Read the court order here.

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