NY State Supreme Court Enjoined New York City from Enforcing Bloomberg’s Ban on 16 ounce+ Sugary Drinks
In a strongly worded opinion, NY State Supreme Court’s Justice Milton Tingling yesterday enjoined NY City from enforcing its 16oz cap on sugary drinks, promulgated by the NYC Board of Health, due to go into effect on March 12, 2013.
Justice Tingling ruled both that Sec. 81.53 of the Health Code was 1) a trespass into the legislative function, and thus a violation of the separation of powers, and 2) arbitrary and capricious, and thus void for an alternate reason (e.g., the Code applied to restaurants, not grocery stores, sugar drinks not milkshakes, lattes or alcohol).
PMA covers these kinds of issues extensively. The 2012 PMA Law Conference featured a review of Food Marketing from Del Monte’s General Counsel Tim Ernst, and other sessions which dealt with Children’s Marketing and similar issues.
The 35th PMA Marketing Law Conference for 2013 will occur on November 18-20th at the Downtown Chicago Marriott, Chicago, with an unprecedented number of new sessions and even more through legal and practical guidance. Keep informed for further details and updates at PMA’s website using this link http://www.pmalink.org/?coelegal
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As the number of available mobile devices equipped with NFC technology continues to rise, business executives, providers and marketers are beginning to embrace innovative techniques to entice, engage and offer a personalized, positive experience in today’s high-paced society. When it comes to dishing out daily deals and enhancing old-fashioned loyalty programs, merchants and marketers alike are continually seeking new options, all with the same goals in mind: Simplicity, engagement and ROI. Whether a restaurant, bar or retail store, these merchants are determined to find a revolutionary way to encourage repeat visitorsupsell and track the ROI of their promotional and loyalty program efforts, all doing so with the least amount of hassle, contact and time required by the consumer.
Let’s face it, grocery shopping can be a rather tedious chore; to make matters worse, you’re a parent with kids pulling from both arms, you’re a 24/7 businessman required to take a call or quite frankly, you’re just not really in the mood to pull several coupons from your wallet. Couponing, one of the oldest promotional tactics to ever hit the market, can certainly be streamlined with the aid of near field communication. Well, now NFC can alleviate the humdrum process of finding, clipping and presenting coupons at the cash register; shoppers will have the ability to tap or wave their mobile device, thus nullifying the need to find, pull out and present those un-ecofriendly cutouts. The shopper’s data, loyalty points and credentials are embedded within a chip (that is linked to the respective account) found in the phone. Juniper Research has revealed that the total redemption value of mobile coupons is projected to exceed $43 billion worldwide by 2016; mere testimony to the valuable future role NFC technology can serve.
In yesterday’s world, businesses offered their customers those 3.5-inch x 2-inch paper cards, generally kept in wallets, then punched or stamped upon each purchase. Thanks to innovative NFC technology, retailers, restaurateurs and other establishment operators can bring loyalty programs online in a more expedited and efficient manner. Using NFC-enabled smartphones, customers can now ‘tap’ to upload sites, automatically check-in, share information to friends via social media outlets, receive instant notifications when a table is ready, collect individualized discounts, and as mentioned, acquire loyalty reward points and offers. Rather than use the old-fashioned punch cards, NFC ‘touchpoints’ can be adhered to cash registers, tables, and signs, then accessed in an easy, paperless manner, whether it’s to electronically track how many drinks before receiving a free one, sign-up for e-newsletters, or more. Aside from consumer benefits, NFC offers businesses a new and efficient method of keeping track of an emerging customer base. Food, retail and hospitality chains that span across the world have begun deploying NFC-based loyalty programs. Mexican fast food chain, Chido, has announced that its first restaurant in Paris would feature a mobile loyalty program offering customers the ability to tap their NFC-enabled phones on a tablet with a built-in NFC reader at the register to access the chain’s loyalty program. In Sweden, retail chain ICA launched an NFC loyalty program at the Kista, Stockholm branch of ICA To Go. Built into the ICA To Go iPhone and Android app, the new loyalty program was compatible for users with NFC-supported devices. NFC loyalty-based programs have also been unveiled at various McDonald’s throughout France. Only in its infancy, customers at nearly 30 establishments across the country have the option to check-in from what the chain has dubbed “Easy Check-In” kiosks.
Back in the summer of 2011, the Korean Times reported that Korean coffee shop chain, Cafe Bene, became the first merchant to introduce an NFC-based coupon system that provided customers with a loyalty ‘stamp’ with each visit. Customers with NFC-enabled devices would simply place their handsets close to the NFC reading touchpad to receive instant and intuitive coupons for free coffee promotional events. Since then, we have also recently experienced the emergence of the first-ever NFC loyalty card wallet from shopper marketing service provider, Airtag. Launched in Nice by Orange, SFR, Bouygues Telecom and NRJ Mobile, the so-called “FidBook” was the first NFC-based application enabling easy loading and access to loyalty cards and coupons on an enabled smartphone by consumers to take immediate advantage of discounts and exclusive services at participating retailers.
NFC eases this process and offers the innovative mode merchants have been seeking for years—the convenient collection of information you really want—location-based services with intent. Marketing will serve as a key player, arguably one of the most popular future applications of the technology. When a critical mass of mobile devices are equipped with NFC and PoS systems have built-in NFC readers, shoppers worldwide can expect to experience a universal adoption of NFC-based coupons. Other than coupons, NFC offers the opportunity for marketers to develop interactive smart posters–event, movie, product and other promotional information is transmitted directly to an enabled phone via the embedded tag in the ad.
NFC will be associated with contactless point-of-sale terminals, product catalogs, couponing, special offers and so forth. Shoppers will be encouraged to browse through images of items on shelves with their smartphones and simply “tap” the image to add the product(s) to their shopping cart. These items will then be purchased and delivered, eradicating both the necessity of heavy bags, wallets and time. NFC will serve as a key influencer in retentive marketing—the ability to unite loyalty and reward programs into the payment process can trigger incentives that encourage customers to return.
It should come as no surprise, but mobile marketing isn’t going anywhere; in fact, Gartner has predicted that the consumer spending on mobile apps stores and digital content will increase from $18 billion this year to a noteworthy $61 billion by 2016. Furthermore, consumer spending on what the leading technology research and advisory company calls “e-text content,” e.g. electronic books, online news and e-Magazines, is forecasted to surge from $5 billion to $16 billion within the next four years.
To facilitate education, awareness and drive marketers implementation of NFC into future campaigns, OTA Training hosts NFC Bootcamp™, two-day showcases across the world highlighting how NFC technology is being used to market companies today while instructing marketers, advertisers and agencies alike how to create and implement effective strategies using the technology in their next campaigns. OTA Training and NFC Bootcamp™ CEO, Rob Sabella, encourages, “As the NFC ecosystem begins to mature and moves from just contactless payments to more marketing based applications, business leaders increasingly need to understand just how they can harness the power of NFC to drive brand awareness, increase revenue, and create an exciting customer experience.” He later added, “More consumers than ever will have NFC smartphones in their hands this year. Mobile applications, point-of -sale, location-based value delivery – all need to be adapted to meet the needs of the NFC-empowered consumer in order to keep a competitive edge.”
Although the chatter surrounding Apple’s inclusion of NFC in the latest iPhone turned out to be nothing more than another dose of speculation, the Cupertino-based giant has the potential to significant alter the entire mobile wallet and marketing realm following the introduction of its new Passbook app. Already integrating the Passbook into their mobile apps is a diverse lineup of major retailers, travel companies and ticket sellers, ranging from Starbucks, Sephora, Walgreen’s and Target to Fandango, United Airlines and Major League Baseball. The Passbook application is more than a mere mobile wallet, but rather serves as a centralized hub for consumers to store loyalty cards, movie and event tickets, and promotions on a user’s Apple product, whether it be an iPhone, iPod Touch or even iPad. Through means of its embedded GPS technology, the app features time and location sensory capabilities, which enables automatic time and location-based ticket or offers whenever and wherever the consumer needs it.
How quickly can the Apple app gain momentum? Well, if this is any indication as to the immediate swell and widespread adoption NFC can experience if and when it is integrated into the next versions of the iPhone, the mobile arena is about to experience a titanic transition. During the first five days following the launch of Passbook, Sephora’s iPhone app was downloaded nearly 300,000 times while the number of loyalty accounts created via mobile increased exponentially. According to relatively early data from Branding Brand, the company that built the beauty retailer’s app, Sephora’s Beauty Card was added to 17,000 users’ Passbooks while another 3,000 were added in the next 24 hours. Now, more than 75,000 loyalty cards have been added to Passbook while a gradual increase is bound to occur following the uptake of the new iPhone 5 and downloaded iOS6. Since its inception, Major League Baseball has also been testing its fans’ reactions in use of Apple’s new Passbook. After introducing the app in the last two weeks of the regular season to four teams, 12% of single-game tickets bought within that biweekly span were stored to Passbook.
Undoubtedly, Apple will act as a catalyst when it does elect to add NFC to the Passbook in the future. However, one cannot help but feel a bit optimistic that this is a step in the right direction towards an NFC-supported iPhone and the universal adoption of NFC technology.
In time, we can expect to see more and more businesses begin to leverage NFC (as well as QR codes until universal adoption is achieved) to allow their consumers to interact and engage in real-time in an effort to receive discounts, loyalty and personalized promotional offers. The promotional marketing and loyalty reward programs of today will soon be implementing the technologies of tomorrow.
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PSFK co-founder Piers Fawkes was a keynote at our recent Digital Shopper Marketing Summit in September. Today he moderated a Google hangout that focused on trends for 2013. Lots of good stuff discussed. No analysis here, just highlighting a few things that stood out to me.
In addition to Piers, the hangout included:
- Aziz Ali (PSFK contributor)
- Rachel Schectman (Story)
- David Polinchock (AT&T Adworks Lab)
- Chase Jarvis (Creative Live)
- Jonathan Ford (Pearlfisher)
- Ari Kuschnir (mssgpeces)
- Traditional e-commerce sites opening physical stores.
- Metrics change from sales/square foot to community and experience
- People shopping both channels
- Older brands innovating the in-store experience. Ex: Banana Republic & Gap offering a coffee shop or manicure. Time is biggest luxury
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Cash and credit and debit cards are certainly dominant in the payment space today. Some think change will never happen, but they are dead wrong. Mobile payment is in its infancy, but the benefits are clear: simplicity, convenience, relevance, and targeted offers and rewards. No more wallets with multiple cards, just one device. And this is only the beginning.
Consumers and retailers are eager to participate. Starbucks – a market leader – already offers a popular payment app. It has now moved further into mobile payments by partnering with Square to allow mobile payment at all of its 7,000 U.S. stores. Customers may soon even be able to pay with their phones while they’re still in their pockets. With Square, a cashier can see your photo as you approach the register, and you complete the purchase by stating your name.
As the mechanic in the video says, “If it’s good enough for Starbucks, it’s good enough for me.”
But, for most consumers, it’s not that easy. A recent survey found that 42% of mobile phone users who could use mobile payments have chosen not to because of the fear of fraud. Consumers fear that their privacy and security could be jeopardized by using mobile payment options.
Concerns over privacy in the mobile space may hinder its potential for growth – at least in the short-term.
In April, the FTC held a workshop on mobile payment technologies to review the privacy, security, and legal concerns. And there is good news – the FTC is not inclined at this time to regulate the industry. It wants to see best practices that will help ensure that the systems are safe and secure. Everyone at the workshop agreed that education was a critical element to the future success of mobile payments. In fact, education may almost be as important as the technology.
Self-regulation is alive and well in the mobile app space. Admittedly, uniform privacy standards are still a work in progress. The considerable attention on mobile and mobile app privacy practices over the past year should come as no surprise. This is simply another part of the intense effort to bring greater transparency and uniform standards to online consumer data collection practices.
Read more by Ron Urbach at: http://www.madisonaveinsights.com/
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Article written by: Donna Declemente
Last week I was in Chicago for a couple of days to attend the 34th Annual PMA Marketing Law Conference. It was being held this year at the Sheraton Hotel which is right on the river. I do love visiting Chicago and we we’re lucky to have some nice weather while I was there, even though we spent most of the time inside the hotel. I did have a partial view of the lake from my room though which was quite nice.
I have been attending the PMA (Promotional Marketing Association)conferences as their guest now since 2007. In fact I first got motivated to start this blog at the encouragement of PMA who was looking for a blogger to help spread awareness about the organization and their events. So I’ve been blogging about the PMA since then.
This conference is the largest event that the organization puts on and this year they broke their attendance record with more than 650 people made up of leading attorneys, brand marketers and policymakers. The program featured more than 100 presentations on topics surrounding the legal complexities of marketing across ever-changing media platforms.
My favorite presentation each year, and the one most relevant to my business, is from Linda Goldstein, a leading marketing lawyer (AKA the Sweepstakes Law Diva) who is a New York based partner at Manatt, Phelps & Phillips LLP. Linda’s presentation this year was focused on the best practices of “gamification” in which she stated that “data is the new promotional currency”. She compared today’s multi-platform sweepstakes, contests and promotions to the “panopticon”; the theoretical building design that allows a watchman to observe all of the inmates of an institution without their knowledge.
Linda shared with us a video that was created specifically for the conference to help get the point across that due to the emergence of bots and other automated technology associated with gamification, 51% of all website traffic is now non-human. In the video we follow a young woman who literally gains sweepstakes entries in her sleep through the help of her “Siri” type computer assistant. Linda stated that will all this type of technology “this means the human interaction that brands so crave may be thwarted by the gaming system.”
In discussions I had with other attendees at the conference, the overall agreement was that we all need to continually try out these new platforms and stay current with technology just to keep up and stay relevant. It’s an exciting time to be in this business, but we now face many challenges. We need to use gamification and social engagement in ways that create true human response while still keeping compliant with all the traditional lottery laws and privacy regulations. Linda also addressed what may and may not constitute consideration for entry when using new and user generated media across the platforms such as Facebook, Twitter and Pinterest.
Another conference highlight for me was meeting Scott Monty, Head of Social Media for the Ford Motor Company, who was our luncheon keynote speaker on Day 1. He noted, 90% of social media is all about just showing up. Since this was the first conference I got to attend with my new iPad and iPhone, I found this to be so true. While I did miss my laptop a little, I was able to much more easily tweet and follow the hashtag #PMALaw. In fact, I tweeted about looking forward to hearing Scott Monty speak & that I had heard him once before, back in the days when Twitter was young. That got Scott’s attention and he tweeted back. So I guess we both showed up. In fact I was impressed to see so many more attendees tweeting this year.
At the luncheon on Day 2 of the conference we got a big announcement from Bonnie Carlson, President of PMA. Bonnie announced that PMA will become known as the Brand Activation Association in 2013, with a broader focus on helping members translate marketing strategy into best brand activation strategies. They will focus on helping members solve problems, rather than dwelling on specific tactics. They reveled the new logo and stated the change will become official at PMA’s Annual Conference in April 2013. Over the coming months, they will introduce improvements and a variety new resources.
“We are building on PMA’s 101-year legacy of advocacy, education, recognition, networking and community by actively responding to changes brought about by the explosion of digital, social and mobile communications,” Carlson explained. “As these new-age channels have dramatically altered association members’ marketing cultures, new ecosystems of retail have been spawned, particularly in the areas of e-commerce, mobile shopping, show-rooming, social shopping and more.”
It’s hard to change a brand that’s been around for over 100 years. Promotion has always been considered a very “tactical” strategy and the hope is that this new brand and direction will be seen as a much more broader marketing focus. I will be reporting more on these developments as they are introduced, so please stay tuned.
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Former FTC Commissioner and Current CLO of Procter & Gamble Speaks on Empowerment for Today’s Digital Consumer
Written by Toni Mione, Benjamin N. Cardozo School of Law, Candidate for J.D., 2013
On November 14, during the 34th Annual PMA Marketing Law Conference in Chicago, Chief Legal Officer and Secretary of Procter & Gamble, Deborah Platt Majoras, presented a moving keynote address to inspire an audience of more than 600 attorneys, advertisers and policymakers to look at the consumer relationship in a new way.
“Consumers not only have access to a dizzying array of information, they are creating and providing information. They are not passive recipients, but active participants in the brand building,” she explained. “The new trusted heroes in our society are everyday people…they want to know who’s behind the brands, can they be trusted, and are we too, interested in making the world a better place.”
As she described the social and technological backdrop that created this new kind of consumer, Majoras emphasized that the ultimate goal is not only to protect, but to empower consumers. As a former FTC Commissioner, Majoras reiterated that nothing is more effective at protecting consumers than competition, but “to work most effectively, products and services must be delivered to consumers in an honest and straightforward way.”
She emphasized how necessary it will be, moving forward, for the government and other industry regulators to strike the right balance between knowing when to step in to protect consumers and when to let them do that for themselves through market mechanisms. “Now, more than ever, it is important that as policies are developed and laws are enforced, we all view consumers as active, knowledgeable and powerful.”
So aside from government action, what else can be done? Majoras went to on to stress how important and effective self-regulation can be, stating, “Enforcers and regulators should support effective self-regulation…I’ve been a very big supporter of self-regulation for a long time…it’s not perfect, but government regulation isn’t either.”
She explained that self-regulation is really tailor-made to accomplish the goal of everyone being held to the same standards, is a very cost-effective means, and demonstrates a commitment by regulators, enforcers and even brands, to continue improving the industry.
No keynote addressing how best to protect and interact with today’s consumers could ignore modern privacy concerns. Majoras presented several shocking statistics from a 2011 survey of 9,600 individuals across 31 countries performed by KPMG, which found that 90% of respondents expressed concerns about the privacy of their personally identifiable information, yet 62% were willing to allow online advertisers to track their web usage “under the right circumstances.”
Echoing her earlier concern about “striking the right balance,” Majoras explained that while innovations provide great benefits to consumers in the digital marketplace, there are often mass data collection practices that remain invisible to them and the challenge is to figure out how best to protect privacy among consumers with different interests and desires while allowing companies and brands to continue to innovate.
Majoras concluded by again emphasizing consumer empowerment through information and a “cornerstone of the corporate mission”: trust. She advised, “Once consumers are empowered, we need to step back and let them decide…and it will be by working together as a legal community that we find the best practices and solutions.”
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PMA Marketing Law Conference Interviews Jane Azia – Chief of the Bureau of Consumer Frauds and Protection in the Office
Jane Azia the Chief of the Bureau of Consumer Frauds and Protection in the Office of the New York Attorney General. She is among 100+ experts to speak at the PMA Marketing Law Conference.
We asked her a few key questions about the future of Marketing Law that gave us some insight on what we can expect to see coming down the line.
If you can predict 2013, what do you think the most newsworthy trend will be in the laws of promotion, advertising, sweepstakes, social media, privacy, mobile, and IP?
Data privacy is the hottest topic at the moment. In addition to the COPPA controversy discussed above, the issue of online and mobile tracking and targeting has exploded this year. Almost 200 class action lawsuits have been filed against publishers, ad servers and advertisers. Congress is considering legislation and the FTC is pushing for industry to adopt a Do Not Track option for consumers. The advertising industry favors a do not target option, and for it to be available as an opt-out as opposed to a default as Microsoft new version of IE will offer. While the online industry has implemented a system of hypernotice and opt-out of behaviorally targeted ads, the mobile industry lags far behind. Indeed, many of mobile apps do not even have notices to users explaining their data privacy practices. Meanwhile, the EU has imposed strict consent rules for tracking and targeting, though most countries are moving away from express affirmative consent to notice and opt-out, except for sensitive data. Data privacy issues present challenges to the advertising industry, which has come to rely on highly targeted ads to improve effectiveness of ads and increase revenues. The industry must educate consumers and provide them with sufficient notice and choice if it wants to avoid regulatory changes that could upset the online and mobile advertising ecosystem.
What do you think is the most important “hot button” in marketing law currently?
The FTC’s recently proposed supplemental proposed rule changes to the Children’s Online Privacy Protection Act, in particular its apparent determination to expand the concept of persistent identifiers and device identifiers to be treated as personally identifiable information. A better approach would be to treat them as personally identifiable information only to the extent they are used to specifically contact and engage a child — i.e., concentrate on preventing the harm COPPA was intended to prevent, namely the ability to contact a child without parental consent. While expanding the definition of personally identifiable information under COPPA would only affect children under 13, it opens the door for greater regulation of persistent identifiers in the general population. If persistent identifiers are personally identifiable information for children, the data does not magically cease being personally identifiable when a child turns 13. Thus it will not be a stretch to say that adults should have the right to provide prior express consent to the collection and use of persistent identifiers associated with their devices when online or on mobile, just as companies will be required to get verified parental consent before collecting and using children’s persistent identifiers except for certain first party operational purposes, as has been proposed. Further, the FTC’s proposed operational exception needs to be expanded to better address the complexity of the online and mobile ecosystem. In addition, the FTC’s proposal to make third party social media plug ins, technology providers and ad exchanges and networks, on the one hand, and sites and online services that utilize or interact with such third parties, on the other hand, liable for each other’s COPPA failures is not practical and risks diminishing the availability of third party technology and services on children’s and family sites. In addition, the proposed change to require so-called family or mixed use sites to affirmatively age screen and treat users over and under 13 differently if the site is visited by a percentage of users under 13 than exist in the general population will create an undue burden on sites that are directed to a general audience, but might be visited nonetheless by children such as apparel and consumer products sites. Finally, the proposal to eliminate the ability of children’s sites to collect online contact information from children for internal purposes only, where it is not shared with third parties, by the currently wide spread method of e-mail plus (i.e., and e-mail notice to the parent with a follow up communication designed to confirm that the person is a parent and does not object), as opposed to the more obtrusive sign and mail, sign and fax or credit card transaction methods will create havoc for children’s sites. The FTC has pointed to no harm justifying elimination of e-mail plus, but has rather stated that it hopes doing so will spur innovation of new methods of more verifiable methods of confirming parental consent. Imposing economic burdens on publishers is not justified in an absence of harm to be avoided.
The PMA is proud to open its 34th Annual Marketing Law Conference on Monday, November 12, at the Sheraton Hotel & Towers in Chicago, IL. You will hear from experts like Jane Azia as well as representatives from Facebook, Twitter, Ford Motor Company, and FTC Commissioners. Everything you need to know about the laws and regulations of promotion marketing will be discussed at the PMA Marketing Law Conference.
For more information or to register, please visit the PMA website at: http://www.pmalink.org/?page=law2012
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