It's the last few days of February and Black History Month
is winding down to a close. We've seen publicity for a lot of
brand initiatives, of all kinds, intended to support communities of
color, like Uber's Black Businesses Matter Matching Fund;
Amazon's Buy Black program; and McDonald's Black & Positively Golden Scholarship
Fund, to name just a few.
Programs have varied: some programs simply aggregate Black-owned
businesses or brands on a platform in order to highlight them and
encourage consumers to shop at those businesses; some designate a
portion of sales to Black-owned initiatives; and some limit
eligibility into contests or other programs to Black entrants.
As a consumer, and simply as a sentient being with awareness
of the history of race and discrimination in this country, I
applaud all of these programs. The more the better. And
as an advertising lawyer, I think about how best to structure them
and the issues that advertisers face in implementing them.
First, as with all campaigns, does your campaign adequately
communicate its terms and conditions? If the program requires
a certain type of purchase by a fixed deadline to trigger a
donation to a charity, for example, are those requirements clearly
and conspicuously stated? Are there any limits to the
program, like a cap on contributions and, if so, is that cap
clearly stated and will consumers know when the cap is reached?
While all consumer incentive programs must be clearly described,
high profile programs with a charitable tie-in are likely to be
scrutinized that much more closely. Moreover, they're
specifically regulated by the states as "commercial
co-ventures".
As we've blogged about before, such programs
require a contract between the for-profit entity and the charity;
registration and bonding by the for-profit entity in a few states;
registration to solicit by the charity in the states where the
program will run; and clear disclosures of the time period during
which the consumers' actions will trigger a donation, any
minimum or maximum donation amounts, and where consumers can learn
more about the charity. Also, if the messaging says that
consumers' purchases will impact how much is donated, it's
important that the contract with the charity not include a fixed
donation amount!
Second, are you making claims that you can substantiate? If
your company, as part of a specific Black History Month initiative,
claims to have a history of support for, say, Black-owned
businesses, can you back that up? Scrutiny will be intense
and social media will be merciless if you are making broad but
unsubstantiated statements about your company's history of
supporting social justice programs and communities of color.
You could even face a false advertising claim.
Third, who can participate in the program? For example, if
the program is a contest intended to highlight Black-owned
businesses, how is "Black-owned" defined? And is
eligibility going to be actually limited to Black participants?
While legal challenges to consumer programs intended to
benefit historically discriminated against communities are
infrequent, they are not unheard of. Incentive programs
limiting eligibility to women or people within a certain age group
have even be the subject of the occasional lawsuit. While it
is far from clear that anti-discrimination laws can and should be
used for such challenges, one need only read the comments on brand
websites about these initiatives to know that not everyone supports
them. Brands should be brave but aware of potential blow
back.
Finally, though not a legal issue, it's certainly a very
important one: will the brand's program resonate or sound the
BS alarm with the public? A brand not known for, say, good
labor practices may face skepticism, or worse, when launching a
social purpose initiative. Purpose advertising is ubiquitous
but requires resolve. You don't get to support Black
communities just one month out of the year.
(Description of graphic for visually-impaired readers: text
saying Black Lives Matter with a drawing of a raised fist.)
Originally Published by Frankfurt Kurnit, February 2021
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