ASE09 Session: Hot Topics in Marketing Compliance and Enforcement
Monday
Aug 17, 2009
Session Description: Hear from regulators and industry insiders on critical legal issues facing affiliate marketers today, including advertising practices, affiliate liability, and enforcement priorities. The panel consisted of:
- Jeffrey Greenbaum, Partner, Frankfurt Kurnit Klein & Selz PC (Twitter @jeffgreenbaum) (Moderator)
- Leonard Gordon, Director, Northeast Region, Federal Trade Commission
- David Graff, General Counsel and Sr. Vice-President, Corporate Development, Epic Advertising
- Peter Marinello, Director, Electronic Retailing Self Regulation Program, Council of Better Business Bureaus
With all the talk about disclosure going on lately, I thought this session would be a great chance to learn more about how the FTC expects to enforce the over-zealous disclosure they’re now talking about requiring. I was disappointed that there was no mention of it until the end of the session and that no one asked about it before I had to leave. The session went long and I had to run to get to GeekCast Live. It was definitely a wealth of information; I just wish Jeffrey hadn’t talked and gone through his slides so fast!
Bullet Point Review!
- Affiliates need to be careful about the types of endorsements they use.
- Affiliates can get into trouble using celebrity pictures and trademarks.
- Epic Advertising does their research to make sure testimonials used are legitimate and documented.
- There’s no silver bullet.
- Noncompliance is more lack of attention to detail than maliciousness.
- Even if a celebrity endorsement is true, you need their explicit consent to use it.
- What is Advertising?
- Traditional Media
- Company Sites
- Public Relations
- Spokespeople
- Branded Content
- Viral Videos
- Product Placement
- Review Sites
- Facebook Pages
- Blogs
- Tweets
- What Rules Apply?
- Federal
- State
- Local
- Deception
- Tell the truth and don’t mislead.
- Keep your promises.
- You’re responsible for express and implied claims.
- You must have prior substantiation to back up your claims.
- FTCv. CVS Pharmacy Case
- Accused of misrepresenting how they were protecting customer privacy.
- Found that discarded customer information was thrown into dumpsters behind the stores that were accessible by anyone.
- Held accountable.
- Disclosures
- Is qualifying information necessary to prevent a claim from being misleading?
- Disclosure must be “clear and conspicuous”.
- Mouse type probably won’t do the truck.
- Is the disclosure in close proximity to the claim?
- Disclosures are judged by a performance standard.
- No pre-checked boxes.
- Disclosures must be separate from terms and conditions.
- Endorsements
- Must be real.
- Honest, unbiased opinions.
- Accurately reflect performance.
- You can’t use an endorser to make a claim that you couldn’t make yourself.
- Subject to FTCreview.
- “Results Not Typical”
- Unfairness is about harm, not about deception.
- ERSP is a self-regulating body.
- No real punitive damages; can only recommend changes to be made.
- Clinically proven claims have to be reliable and competent evidence.
- Clinical Testing Data
- Independently conducted (double blind study, placebo controlled).
- Adequate sample size.
- Conducted over a reasonable period of time.
- Statistically significant results (95% confidence level).
- Claims = data.
- Affiliate has the responsibility to confirm that the claims are true.
- There are some obviously questionable categories of offers that should always be questions before run, like nutritional supplements, weight loss, etc.
- You as an affiliate can be held individually liable for damaged in a lawsuit.
- FTC has two responsibilities – consumer protection and anti-trust.
- The Obama administration has put pressure on the FTC to look to protect consumers heavily affected by the economic downturn.
- Extra scrutiny of loans, mortgage, jobs, debt consolidation advertising.
- Be careful when marketing to children as the rules are becoming more strict.
- Is it okay to collect data when a consumer consents?
- Consumers don’t understand terms and conditions – the FTC thinks it’s borderline absurd to think that they do.
- Disclaimers should be written with the same panache as the ads themselves.
- Terms need to be crystal clear.
- Consumers don’t understand how online ads work.
- FTC doing more research of “green” ads and hope to publish more guidelines soon regarding claim standards.
- FTC is expecting to be partnering with the FDA more to regulate health and safety advertising.
I talked to another attendee of the session, Rebecca Madigan from the PMA, who said the session went on for about another 15 minutes after I just had to leave to get to my next speaking engagement on time. I hope she posts more about the session somewhere! Jeffrey, Peter, and David all had their own presentations, but the only one on SlideShare is Peter’s. Here’s the presentation:
Cribbed Content for May 30th
Friday
May 30, 2008
Here we are at the end of May already?! It’s zoomed by really fast for me…I can’t believe summer is within our grasp! It’s been a short week thanks to the Memorial Day weekend, so not much news to summarize for you this week, but plenty to get your brain juices going!
- With the recent appointment of
That’s about it – good quality stuff. Have a great weekend recovering from such a grueling (yet short) week!
Cribbed Content for April 4th
Friday
Apr 4, 2008
As usual, here’s my weekly compilation of cool stories I found around the net this week.
- Shawn Collins announced that Gary Vaynerchuk of WineLibrary.tv will be the keynote for Affiliate Summit West 2009. He’s sure to bring the thunder!
- Epic Advertising was not an April Fool’s Joke; AzoogleAds has indeed re-branded themselves along with Bazaar Advertising (their SEM arm) under the Epic Advertising umbrella. All three websites are still up and only the Bazaar site mentions the affiliation with Epic on the homepage, so I’m still sort of confused.
- Google announced that they’re splitting up DoubleClick Performics into two factions: Search Marketing and Affiliate Marketing. Naturally, they’ll be selling off the search portion and keeping the affiliate portion.
- Monster.com is apparently deparate to steal people from Craigslist.org. Wow that’s sad. But, the new Craigslist blog is really shaping up, so check that out.
- For the bloggers out there… Problogger.net put out a really great (especially for me!) post yesterday telling you which stats are important and which you can chill on. Makes me feel MUCH better, so thanks Darren & guest blogger Mark Seall
- Finally, there was a surge the other day of my friends joining up and getting Wordpress.com blogs. Rob Kaas, a talented writer no matter what he thinks, reposted an old blog about, well, blogging. It’s a good read so check it out.
Good stuff this week… although this weekly wrap up makes me glad that I’m not a “news blog” since I’d be late to the party in reporting this stuff!
