Centers of Excellence: Uncategorized
FTC Issues Subpoenas for Food Companies
Posted by ekabak in Uncategorized on September 2nd, 2010
FTC SUBPOENAS MARKETERS OF CHILDREN’S FOOD AND BEVERAGES
Last week, the Federal Trade Commission (“FTC”) began issuing subpoenas to 48 children’s food and beverage marketers seeking data about advertising practices and marketing expenditures dedicated to children. The FTC previously announced that it would be taking this action last May.
In 2008, the FTC published a report, “Marketing Food to Children and Adolescents: A Review of Industry Expenditures, Activities and Self Regulation.” The 2008 report was based on the results of a study of 44 marketers (most of whom have now been subpoenaed again in 2010). It included a number of recommendations for companies marketing food or beverages to children, including, “(1) adopt meaningful, uniform nutrition-based standards for all products marketed to children under 12; and (2) apply these standards to all advertising and promotional techniques.”
The 2010 subpoenas seek information regarding the implementation of those recommendations as well as updated figures on the companies’ spending on marketing to youths. The FTC plans to issue a follow-up report based on the information it collects.
The FTC has said that it is not planning to propose any new regulations, but the subpoenas clearly indicate that the FTC still views its oversight of marketing to children as a top priority in 2010 and beyond.
Thanks to Jeff Greenbaum and Michael Schiffer of Frankfurt, Kurnit Klein andSelz
Neighborhood Retailers Create New Uses for Promotion
Posted by Deborah Martin in Promotion tactics, Shopper Marketing/Retail, Uncategorized, couponing on August 19th, 2010
Just last week, I noted the use of two promotion tactics, traditionally used
by product manufacturers and big retailers, now supporting the service
industry and neighborhood retailers. CVS had a direct mail coupon flyer
with two 20% off coupons — each good on one day only for the pharmacy with
a bonus coupon for talking to the pharmacist, which required his initials.
CPG coupons for the drug store - not new - but a chat with the pharmacist?
The other interesting approach is Discover Card’s promotion of neighborhood
dry cleaning services. Distributed in a full page FSI, Discover Card is
offering five entries to win $1 million if you use your card with a dry
cleaning, tailoring, or laundry service. Interesting idea, promoting an
industry segment of service providers, not a specific brand. I wondered if
they were approached by a national association for dry cleaning to help
promote their members!
What’s next? Meet the accountant, dentist, doctor, personal trainer? Use
your credit card at shoe makers, barber shops, nail salons?
It’s interesting to see traditional tactics morph into a new use. — Bonnie Carlson, President, PMA
Year in Review 2009 by Ed Kabak from the PMA Law Conference
Posted by ekabak in Uncategorized on November 9th, 2009
The Year in Review 2009
By E.M. Kabak
It was the year of foreclosures the stimulus bill
The year that TARP had a giant refill
The year of job losses clean out your credenza
And open the door and In Flew Enza
The year of Chinese and Russian new ties
When Obama awakened with the Nobel Peace Prize
While half the world was chasing a grogger
The FTC began chasing bloggers
Was that blogger paid for a favorable review
Of that horrible film of alien swine flu?
While we who worry re weight loss advertising
Though it isn’t typical saw our pounds downsizing
Some one in this biz must still play the fool
Those paying large fines for the telemarketing sales rule
How can I say this or make it more plain
Something is wrong in the woods of Maine
They’re much too busy catching animals with claws
While passing unconstitutional laws
Must marketers to minors get parental consent
What kind of message to the economy’s thus sent?
Even trapped muskrats let out a squeal
Please let me go and that law be repealed
With PMA’s help,the tide was turned
Industry’s concerns were no longer spurned
For on reflection the Court doth see
The law was invalid- so agreed the AG
The California laws for continuity accruals
Require clear consent for auto renewals
Is this another legislative trend
That we are seeing around the bend
But no dm should have to repent
If they’ve secured advance marketing consent
When the economy’s tight what’s that saber rattle
Our most prestigious brands in full battle
More comparative ad claims and more legal fees
For cases in court and with NAD
But it’s always this way when the e-con-o-my
Contracts and litigators once caged are set free
They get their jollies and find relief
Only when filing a 50 page brief
Now the FTC seeks new interdictions
From an expansion of its jurisdiction
Looking for more rulemaking authority
And Sec 5 civ penalties under law mais oui
Doth the FCC seek more jurisdiction over cable and the internet
Product placements and children’s marketing NOI place your bet!
We live in an age of increased regulation
Which may cause some here a regurgitation
Among those who prefer less checking ad clearance
And surely less government interference
To those we say get used to the flak
The pendulum swings forth and the pendulum swings back
Did gift card marketers realize their fears
The Credit Card Act says in less than 5 years
A general pre-paid card may not expire
At least ‘til the next election sang the choir
But on this subject there’s some good cheer
Reynolds v Phillip Morris the case of the year
Where on pack proofs of purchase for Marboro Miles
Are not gift certificates so the industry smiles
But loyalty points which to no one’s ire
Eventually and by their terms shall expire
For environmental claims what now defines green
The FTC report is soon to be seen
While targeted advertising no longer waits
For industry self reg- this year bore its dates
For sweepstakes and contests and games of skill
The Commonwealth of Puerto Rico withdrew its (bitter) pill
And balancing risk against participation
Now makes it easier to include in the nation
Of those who are eligible for sweepstakes entry
all people and groupings it’s that elementary
While all these changes were simmering and brewing
the legal industry itself was stewing
the new class of hires was surely preferred
but its entry date ahem ahem now must be deferred
The dollar is dropping but exports are rising
The US economy is slowly reviving
So let’s not complain let there be no whining
In every cloud there’s a platinum lining
Promotion now with its metrics and meters
grows steadily while the rest of the world teeters
An industry which does not need cooption
And does not require a public option
It’s not deceptive surely not unfair
To say that promotions will always be there
Along with our bar creative and clever
As tough as nails and feisty forever
This claim for sure needs no substantiation
It all goes back to the time of creation
For what’s the big bang but an act of commotion
For the birth of the earth – a celestial promotion!
FTC Revises Endorsement/Testimonial Guides
Posted by ekabak in Uncategorized on October 5th, 2009
The Federal Trade Commission today announced that it has approved final revisions to the guidance it gives to advertisers on how to keep their endorsement and testimonial ads in line with the FTC Act.
The notice incorporates several changes to the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, which address endorsements by consumers, experts, organizations, and celebrities, as well as the disclosure of important connections between advertisers and endorsers. The Guides were last updated in 1980.
Under the revised Guides, advertisements that feature a consumer and convey his or her experience with a product or service as typical when that is not the case will be required to clearly disclose the results that consumers can generally expect. In contrast to the 1980 version of the Guides – which allowed advertisers to describe unusual results in a testimonial as long as they included a disclaimer such as “results not typical” – the revised Guides no longer contain this safe harbor.
David Vladeck, The FTC’s Director of the Bureau of Consumer Protection, will keynote the PMA Law Conference in Chicago Nov5 -6,at the Fairmont Hotel and address these and other key issues affecting the industry. Go to http://www.pmalink.org/law/ for details.
The PMA New York Chapter Visits the High-Line!
Posted by Kristine Michelsen-Correa in Uncategorized on October 5th, 2009
View of the High Line
On Tuesday evening (September 30th), the PMA New York Chapter enjoyed a special networking event on the High Line- New York’s newest park and tourist attraction. The High Line was built as part of the West Side Improvement Project in the 1930s and changed a highly trafficked area into a safe one where train and car traffic were separated. With the decline of the train, the High Line has reinvented itself as an elevated park with further expansions planned for 2010.
This Chapter event marked the first real day of fall in New York City—with a dose of high winds. The interest was immense and we filled to capacity. Dave Wallace, PMA’s Vice President of Member Development and a train enthusiast, led the walk. The evening ended at The Park, a bar off the High Line in the Meat Packing District, where attendees were able to catch up and connect.
Bonnie Carlson, President of the PMA (Left) & Edward Kabak, Chief Legal Officer (Right)
We are planning another New York Chapter event for the Holiday Season, to be announced, as we get closer to the date.
Kathleen Mulcahy, Vice President of Marketing PMA (Left) & Jaclyn Rodriguez, Manager of Membership (Right)
FTC Announces New Fees for Telemarketers Accessing the National Do Not Call Registry
Posted by ekabak in Uncategorized on August 18th, 2009
The FTC has announced new fees starting on October 1, 2009, for telemarketers accessing phone numbers on the National Do Not Call Registry. All telemarketers making calls to consumers in the United States are required to download the numbers on the Do Not Call list to ensure they do not call consumers who have registered their phone numbers. The first five area codes are free, and organizations that are exempt from the Do Not Call rules, such as some charitable organizations, may obtain the entire list for free. Telemarketers must subscribe each year for access to the Registry numbers.
The access fees for fiscal year 2010 (from October 1, 2009 to September 30, 2010) are based on the Do-Not-Call Registry Fee Extension Act of 2007. Under the Act’s provisions, in fiscal year 2010, telemarketers will pay $55 for access to Registry phone numbers in a single area code, up to a maximum charge of $15,058 for all area codes nationwide. Telemarketers will pay $27 per area code for numbers they subscribe to receive during the second half of the 12-month subscription period.
Copies of the documents announcing the fees are available at the FTC website or at PMA.This subject will be covered at the PMA Law Conference , Nov,.5-6. in Chicago http://www.pmalink.org/law/
Book Review: Tactical Transparency
Posted by Bill Carmody in Books, Digital Marketing, Social Media, Uncategorized on July 14th, 2009
Tactical Transparency: How Leaders Can Leverage Social Media to Maximize Value and Build Their Brand by Shel Holtz and John Havens is one of the best books I’ve read on the topic of Social Media, and I have recommended this book to many of my colleagues, friends and clients. If you enjoyed Search by John Battelle, then you’ll like Tactical Transparency, as it does for Social Media what Search did for SEM & SEO; it explains in a straightforward way how companies need to be thinking about their Web 2.0, blog and Social Media strategies.
This book shares a lot of what I would consider common sense principles. However, it takes only a few case studies such as the dishonesty that brought down Enron, the astroturfing (i.e. lack of disclosure) that gave both Edelman and Wal*Mart such negative PR, or a dismissal of a blogger by Target to realize that what sounds like common sense in hindsight is not always practiced in the day to day operations of a company. That is, if Edelman can make such a huge blunder (and they are considered by many to be one of the premier social media PR companies), anyone can – especially when the values at the top of an organization are not practiced throughout the company.
One of my favorite quotes from the book came from Mike Wing, vice president of strategic communications at IBM, who said:
“We think blogging is a big deal, and we don’t know yet what the real full nature of that big deal is. It goes way beyond diaries or opinion or even marketing or PR. It’s an unprecedented empowerment of individual human expression, a fulfillment of the original promise of the web in which everyone can become a publisher.”
And of course, the question on everyone’s mind is, “What are the implications for my business?” How does a company today evolve from sending out press releases to truly being part of the ongoing conversation about your company and your brand? While this book is not necessarily a “How To” book, it does provide great examples of what leading companies are doing today and the issues that most companies are currently grappling with – especially the really tough ones such as legal and resource implications. The book provides some great suggestions on how to mitigate the risk associated with social media and how to have productive conversation with your lawyers.
I believe that this book is well worth your time to read and that you’ll get some great insights from this book regardless of where you currently are in the Social Media spectrum – from novice to expert.
Bill Carmody is a PMA Board Member & Co-Chair of the PMA’s Digital Center of Excellence
Additional links:
A few words from Sotomayor on word-of-mouth
Posted by Mary Reed in Uncategorized on June 9th, 2009
As others have reported, a review of Judge Sonia Sotomayor’s jurisprudence reveals familiarity with intellectual property and marketing law issues, but little indication that her positions will anything far outside the mainstream. Although two are fairly well known*, what might be of most interest to PMA members are her 1997 remarks on “word of mouth” advertising in Avon Products v. S.C. Johnson & Son, Inc., 984 F. Supp 768 (S.D.N.Y. 1997). As lawyers consider a company’s possible liability for viral marketing campaigns and off-label claims, this is a case worthy of another reading for some guidance on a company’s obligations, if any, to halt false or unsubstantiated claims from circulating.
The case involved claims by S.C. Johnson that Avon falsely advertised and promoted Skin-So-Soft (”SSS”), as an insect repellent, even though it was not registered with the EPA. The Judge found that Avon’s “official policy” was to market SSS only as a bath oil product and to inform callers to its help line that “there is no ingredient or combination of ingredients in [SSS] that could be considered an insect repellent.” Still, some Avon independent sales representatives circulated hand-printed or typed lists of “uses” for SSS. At least some members of management endorsed internally the idea of reinforcing SSS’s positive word-of-mouth.
(I remembered, reading the case, a golf course in South Carolina that had bottles of the stuff at each tee box—didn’t help my game, but I came to rely on SSS as an insect repellent, except for biting flies in the middle of Lake Michigan!)
Survey evidence was also presented, and Judge Sotomayor concluded that three times as many people learned about insect repellency from friends or the media than from an Avon-related source. In sum, she found that “word-of-mouth”–and not Avon advertising–was the “most important source of the repellency folklore than Avon’s advertising and promotion.”
As a matter of law, however, she said that Avon had played some part in the distribution of the lists sufficient for S.C. Johnson to have stated a claim under the Lanham Act for false advertising. She then reviewed the claims allegedly made by Avon, and found them not to be false; consumers believed that SSS worked, and the science showed it did—not as well as DEET, the active ingredient in S.C. Johnson’s Off! product, but Avon had made no comparative claim, and thus no false claim. Moreover, and this is perhaps the most interesting dicta, Judge Sotomayor said, “Avon cannot be held liable for failing to state publicly that it is not an insect repellent.” She found that the Lanham Act imposes no affirmative duty of disclosure, and failing to do so was not a per se violation of the Act.
The case suggests that companies do not have an obligation to search the internet for exaggerated claims that others might be making about their product, but the case also serves as a warning that any management activity that could be construed as endorsement of those claims, including a failure to warn the sales force, might well cause the company to be in violation of the Lanham Act.
*Sotomayor wrote the first decision in the Tasini case, in which a group of freelance journalists filed suit against the New York Times Co. and others for including their free lance stories in electronic databases. She granted summary judgment to the publishers in 1997, but was later overruled by the Second Circuit and the Supreme Court, on the grounds that the electronic versions did not simply copy the freelance stories as part of the collective transferred to that medium.
* Also in 1997, Sotomayor wrote the opinion for the court in Castle Rock Entertainment v. Carol Publishing Group, Inc., 955 F. Supp. 260 (S.D.N.Y. 1997), granted summary judgment for the producers of the popular Seinfeld show, who claimed that a book of trivia testing readers’ knowledge of the show’s events and characters infringed their copyright. While Sotomayor called it a difficult decisions, she was persuaded that the book was not a fair use; that the show was a work of fiction and so the defense of copying only “facts” was not available to the publisher, which had usurped a derivative market which most properly should be the producers’ to control.
These materials have been prepared by Winston & Strawn for informational purposes only. These materials do not constitute legal advice and cannot be relied upon by any taxpayer for the purpose of avoiding penalties imposed under the Internal Revenue Code.
PMA Seminar: Metrics of Marketing Accountability–February 4
Posted by Rob Fields in Uncategorized on January 27th, 2009
It goes without saying that you and your organization are probably interested in some or all of the following critical areas:
1. Evaluating advertising and promotion strategies including TV, radio, print, outdoor and digital marketing.
2. Developing formulas for short-term and long-term equity.
3. Understanding the ROI of shopper marketing and why it is always better than trade promotion.
4. Measuring the long-term value of a customer, and understanding the metrics of loyalty marketing
5. Measuring the ROI of event marketing and why it is frequently a part of award-winning campaigns.
If so, consider joining Rick Abens and Neal Heffernan for a full day, hands-on seminar on metrics and marketing accountability. In addition to being our VP of Research, Rick is also the Director of Advanced Analytics at ConAgra Foods. Neal, SVP and General Manager of PDI/Knowledge Networks, is an expert across many advanced research methodologies, including new product forecasting, in-market testing, price and promotion, marketing mix, and market structure. Prior joining PDI, he was an SVP at Information Resources, Inc. (IRI).
Attendance is limited to 40 people. Readers of this blog who are not yet PMA members can use code "MABLOG" and take $120 off the registration fee.
Additional link:
PMA’s 2009 Call for Papers
Posted by Rob Fields in Uncategorized on November 26th, 2008
I'm pleased to kickoff our Call for Papers that's being done in conjunction with our Annual Integrated Marketing Conference, March 10-11, 2009.
Honestly, I took a lot of inspiration from The Age of Conversation projects. So, it's really more of a call for articles: Our goal is to provide a platform where pros and can talk to pros on the current and future state of integrated marketing. Think about what your peers need to hear, and how you can give it to them in 400 - 1,000 words. The articles will be distributed to the 400 or so attendees at our conference and will be available on the PMA site. Not sure yet whether these will be packaged up as a book, but the possibility is there. We'll make a decision when we see what kind of submissions we get.
So, do you have a valuable perspective to offer? We'd love to hear it.
A quick conference aside: It's coming along nicely. We already have speaking commitments from CMOs from Kimberly-Clark and Harley-Davidson; the SVP of Integrated Marketing from Kraft; the VP of Marketing from Nokia; as well as C-level executives from Digitas, Naked, Mindshare, The Vidal Partnership, Enfatico and Catapult, to name only a few.
Ready to get started on your article? Click here to see a more detailed overview, submission guidelines, other suggested topic areas and information on deadlines.
Additional Links:
Ping me at rfields [at] pmalink [dot] org with any questions.
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