United States: 10 Marketing Law Takeaways From ANA/BAA 2017

Last Updated: November 20 2017
Article by David A. Kluft and Neil Austin

We just got back from the Association of National Advertising (ANA) and Brand Activation Association (BAA) Marketing Law Conference in Chicago, held earlier this week. With hundreds in attendance, and dozens of speakers presenting over three days, it was a great opportunity to learn about "hot" trends and key issues in the advertising and marketing space from an array of stakeholders – marketers, attorneys, regulators, and, yes, even a Washington D.C. lobbyist. In case you missed it, here are our top ten takeaways from the conference.

#1: Fake News is more than just a political issue. Numerous speakers drew comparisons between the "fake news" allegations emanating from 1600 Pennsylvania Avenue and recent trends in advertising law. Whether phony reviews on websites like Yelp or clickbait ads falsely suggesting a relationship between a celebrity and a product (as alleged by Montel Williams in a recent lawsuit), fake news is infecting the world of advertising – especially online advertising – and eroding the trust between brands and consumers. The increasingly fuzzy line between editorial content and advertising is only making matters worse. Marketers create ads that look like news, and news agencies create content that feels like advertising.

#2: Influencers are influencing everything. A consistent theme of the conference was the Federal Trade Commission's ("FTC's") recently stepped-up concerns regarding social media influencers, who seem to be seeping into every nook and cranny of the internet, and correspondingly into virtually every presentation at marketing law conferences. One speaker stated that 2018 would be the "year of the micro influencer," referring to FTC enforcement efforts against "mommy bloggers" (a term everyone hates but continues to use anyways). You can read more about the FTC's recent enforcement actions and new guidelines on our blog here and here.

#3: "Trust" is the hottest buzzword in marketing these days. Few were the presentations that did not touch on the issue of trust. It comes up in the context of data security, the sharing economy, the role of influencers, brand engagement, and of course claim substantiation. As consumers have become increasingly reliant on technology to improve the quality of our lives, we have placed more and more trust in brands. We trust that they will keep our stored payment card information safe, that they will be good corporate citizens, and that they will not make unsupported claims. As the sharing economy has grown, the trust factor is more important than ever. We trust strangers to drive us home from dinner, to stay in our homes, and to care for our loved ones. While regulators have always been focused on ensuring that brands and advertisers are worthy of that trust, increasingly brands themselves have had to take on that role as the consequences of negative consumer experiences can destroy a brand's value.

#4. Will there be a Trump effect at the FTC? Most who spoke on the topic, including some from the FTC itself, would have us believe that the short answer is "not really." Perhaps unlike circumstances at other federal agencies, the transition at the FTC purportedly has been smooth, and so far there is little to indicate that the FTC will take a radically different approach to regulation and enforcement. That said, the FTC is expected to focus going forward on bringing enforcement cases only where there is concrete evidence of consumer injury, which is in contrast to its approach in recent years. Several speakers predicted that enforcement efforts going forward would look more like they did in the Reagan years, with consumer fraud being the core of the Commission's focus.

#5: FTC attitude shifts. Consistent with the reports above, there was some express indication of FTC attitude shifts. Thomas Pahl, Acting Director of the Federal Trade Commission Bureau of Consumer Protection, articulated the FTC's approach under the current administration as involving a reassessment of that agency's preferred choice of forum and remedies. First, Pahl anticipated a move towards less federal court enforcement, on the ground that Congress intended the development of false adverting case law through the administrative litigation process. Second, Pahl indicated a less aggressive appetite for the agency to seek monetary sanctions from advertisers, for fear of chilling truthful commercial speech.

#6: Negative option programs are a risky proposition. Speakers from both the FTC and state Attorneys General discussed recent enforcement efforts aimed at negative option programs, in which companies charge consumers' credit cards automatically, often after the conclusion of a free trial period (you can read more about this phenomenon on our blog here). Of particular interest are several cases recently brought by the FTC under the Restore Online Shoppers' Confidence Act ("ROSCA"). Enacted in 2010, ROSCA prohibits third party sellers from charging financial accounts in an internet transaction unless all material terms of the transaction are clearly and conspicuously disclosed and the consumer has consented to the charges. ROSCA cases were few and far between prior to 2017, but the last year has seen a surge as regulators seek to crack down on negative option programs. Lesley Fair of the FTC hinted that additional ROSCA cases will be announced soon and left little doubt that this will be an area of significant focus going into next year. Billing consumers' credit cards without express consent, she said, is the "riskiest of risky businesses."

#7. Advertisers are fighting back against efforts to eliminate the ad tax deduction. Under current federal tax law, businesses can deduct much of their advertising costs from taxable income. That deduction is very much on the chopping block, however, as Congress seeks to overhaul the tax system. The ANA has been an outspoken critic of efforts to roll back the ad tax deduction, arguing that it will reduce jobs and hurt the economy. Although the ANA has thus far successfully lobbied lawmakers to retain the deduction, future versions of Senate and House bills could put elimination of the deduction back on the table. In fact, on day two of the ANA/BAA conference, Senator Claire McCaskill filed an amendment to the Senate version of the bill that would eliminate the ad tax deduction for pharmaceutical companies. This issue bears watching as Republicans try to make good on their promise of tax reform.

#8. I wish I could define natural. Although the Food and Drug Administration ("FDA") opened up a public docket to examine whether to define the term "natural" for advertising purposes, that agency has yet to issue any formal guidance (notwithstanding some recent hints the issue is still live) and the FTC still hasn't addressed the issue in its Green Guides, which you can read more about here. When one panelist at the "Natural Advertising Claims session was asked to define what a natural ingredient is, she answered: "I wish I could. I don't know and nobody knows."

#9: Pop Tarts are "Healthy." Even though nobody wants to define natural, the FDA has defined the term "healthy," for purposes of food labeling. "Healthy" means a food that is low in fat and saturated fats, sodium and, cholesterol. See anything missing? What about sugar? The result is that a raw avocado is not "healthy," but a Pop Tart is. And before you ask; yes, the FDA is working on this.

#10: Lesley Fair rocks. Oh, and speaking of the aforementioned FTC's Lesley Fair, she is still the funniest and most engaging speaker in the room, no matter who else is in the room. If you work in this area and don't read her FTC Business Blog, start doing it now

To view Foley Hoag's Trademark and Copyright Law Blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
22 Aug 2018, Webinar, Boston, United States

After years of debate, the Massachusetts Legislature recently passed a comprehensive noncompete reform law, and Governor Baker signed the bill on August 10, 2018.

12 Oct 2018, Other, Boston, United States

The New England Electricity Restructuring Roundtable has been meeting bimonthly since 1995 to discuss current topics related to important changes in the electric power industry in Massachusetts and throughout New England.

 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions