Article written by:  Donna Declemente

Click here to see Donna’s full blog

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.

Written by Toni Mione, Benjamin N. Cardozo School of Law, Candidate for J.D., 2013

Photo Credit: USA Today - By Dennis Cook, AP

On November 14, during the 34^th 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.”

Article written by:  Donna Declemente

Click here to see Donna’s full blog

The heart of social promotions today are contests which are a great way to increase engagement from followers and fans while building brand awareness. Running contests specifically on Facebook in which you invite participants to submit a photo or video is a surefire way to get your fans to share their submission with friends and family especially if it includes a voting phase.

However managing a successful contest on Facebook requires that you use an application that works with Facebook’s API and that you follow their Promotional Guidelines. Our company offers several of what you would call “off-the-shelf” Facebook applications that we customize for clients which are both cost effective and can be produced quickly.

Contests also need to have Official Rules that should be posted in the app and accessible prior to anyone submitting or voting. We have created a social media contest package that combines our Facebook application offering with our contest legal expertise that includes a set of official rules. This package has enabled many of our customers to run these types of social promotions very successfully and cost-efficiently.

We have been receiving many inquires from both existing and prospective new clients that want to run contests on Facebook since it provides an opportunity to reach a broader audience through the voting process. The apps we use make voting simple since users can easily invite people to view their submission and then just click on a vote button. These apps help prevent abuse by enabling a one vote per-person per day option.

Many clients now want to open the contest up to a public voting and have the submission with the most votes win. The issue with this is that you may end up with a winner whose submission really wasn’t the best quality, didn’t follow the eligibility requirements or one that really doesn’t depict the brand well. What we suggest instead is to include a judging element to help ensure that the grand prize goes to a submission that clearly follows the rules and does not make the promotion totally a popularity contest.

Another request we have recently been receiving is from those wanting to run a “Global” contest. There really isn’t a global or international contest. Each country has it’s own rules and regulations, especially as it relates to taxes on prizes and privacy laws. The eligibility requirements of what country residents can participate from needs to be stated in the rules. Most of our contests are U.S. and Canada based and require a person to be 18 or older (in some cases 21).

The app we use allows you to determine which countries you want to allow access. We recently ran a photo contest for Alitalia on Facebook for their U.S. fans only. Since they have an International Facebook page we posted a message through the app that any user from outside the U.S. would only see and therefore not have access to the contest. This not only limits non-eligible people from entering, but also from voting. We recently had another contest in which a person initially entered which showed his Facebook profile from Mexico and then he submitted again using his bother’s profile which was from California. However, the email address he submitted in the entry form was from Mexico, therefore he was not eligible.

The Contest app also provides the option to moderate the submissions which allows the contest manager to disqualify or approve each submission before it appears in the app gallery. If you choose the option that they go live you can always go back and disqualify the submission if the content was inappropriate or clearly didn’t follow the rules. You would be surprised of what some people will submit.

Voting fraud is also becoming more and more of an issue. New technologies are being developed that attempt to abuse the system such as automatic bots and creation of multiple email address. Running reports that show the IP addresses of where the votes came can help determine if any of these were used. There are also other instances in which people don’t intend to break the rules but simply do not follow them correctly.

This recent New York Times article is about contest voting fraud in which they mention the use of voter forums also known as vote swapping or exchange sites. About.com has an online contest forum that members can go to and invite other members to vote for them. This article sites a contest that disqualified a potential winner because they were made aware that he was a member of this forum. While it’s not illegal to run these online forums, if you have Official Rules that state that the sponsor reserves the right to disqualify any entrant that they determine may violate the Official Rules then the courts should uphold any dispute. That however doesn’t stop it from becoming a negative PR issue.

There are a number of other important criteria that are not included in this post regarding contests and Facebook applications. Please feel free to contact me if you’d like more information as well as share your experience if you have any with running contests. Contest popularity is certainly not decreasing.

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The PMA Marketing Law Conference will be covering the do’s and don’ts of sweepstakes on social media. Donna and other Marketing Experts will be onsite to listen to the latest regulatory rules on how to run online campaigns.  Don’t miss the opportunity to talk with the experts about best practices and what to look out for when formulating your next promotion.

See full agenda here: http://www.pmalink.org/?law2012agenda

We are lucky here at PMA to have our very own Ed-cyclopedia, also known as Edward Kabak,  and is our go-to for all marketing law questions.

As many of you probably already know, Ed and the PMA team run a very successful Marketing Law Conference every year which brings in hundreds of the top lawyers and marketers to hear about the latest developments. We host representatives from the top firms and most recently confirmed two speakers from Facebook and one from Twitter!  You can read more about that here: http://www.pmalink.org/?page=law2012

Yesterday, the FTC published a new guide “Marketing Your Mobile App – Get it Right from the Start,” containing truth-in-advertising and basic privacy principles when marketing new mobile apps.

These subjects, which were addressed at the recent FTC Public Workshop on Advertising and Privacy Disclosures, participated in by Linda Goldstein representing PMA, will also be covered in detail at the PMA Marketing Law Conference. Four current and former FTC Commissioners-i.e. Commissioners Julie Brill and Maureen Ohlhausen,  Deborah Platt Majoras, General Counsel, Procter & Gamble (former Chairman FTC),and former Commissioner Pamela Jones Harbour will speak at the event.

Join us on November 13-14 in Chicago to learn the marketing law trends you need to be aware of! http://www.pmalink.org/?page=law2012

The 33^rd Annual PMA Marketing Law Conference is rapidly approaching, and now is the time to make sure all your travel arrangements and hotel accommodations are in place…and to register if you haven’t already done so!  This year’s event is shaping up to be the best yet, with in-house counsel and legal representatives from close to 90 of the world’s top brands, as well as attorneys and business professionals from dozens of leading law firms and marketing agencies.  The 2011 conference will provide not only amazing networking opportunities with the industry’s leading professionals, but a chance to learn about all the current legal issues in areas that are important to you: social media, mobile marketing, online group coupons/deals, location-based apps, “green” marketing, behavioral advertising and online privacy, IP, sweeps/contests, sports marketing, international promotions, and many more!  You will also receive a comprehensive 1600 page conference workbook in hard copy (binder) or flash drive form, a great reference tool to add to your law library.  Plus, this year we’ll be concluding the conference with an exciting “Mock Trial of Promotional Mishaps” before a leading federal judge.  If you haven’t already registered, please come join us for what will be the industry’s largest and most valuable advertising and marketing law conference of the year.  Click here to view the incredible agenda and to find out more about registration and hotel arrangements.

Also, be sure to continue checking the PMA blog and Twitter page (@thePMA) in the upcoming weeks and especially during the conference, where we will be posting updates highlighting the most exciting events and presentations.  We encourage attendees to become a part of the conversation by posting comments or tweeting to #pmalaw11 – your feedback is important to us!

We look forward to seeing you in Chicago on November 15!

33^rd Annual PMA Marketing Law Conference

November 15-16, 2011

Downtown Chicago Marriott/Magnificent Mile

540 N. Michigan Avenue

Chicago, IL 60601

*If you have any questions about the conference or registration, please call Ed Kabak at (212) 340-0083.

In an effort to protect the industry, the PMA, together with the American Advertising Federation (AAF), submitted comments on July 14 to the FTC in response to the Interagency Working Group’s (IWG) proposed guidelines on food marketed to children.   The comments highlighted several significant flaws in the proposal, such as failing to carry out the mandate from Congress requiring the IWG to “study” childhood obesity and prepare a report, and basing conclusions on an unfounded assumption of a causal connection between childhood obesity and food advertising.  In addition, because the proposal has overly broad definitions of “marketing to kids,” implementation could raise serious First Amendment issues and have far-reaching negative consequences on even those industries beyond the food industry, such as media, talent, and non-profits.  Finally, the suggested guidelines would violate the Administrative Procedure Act and would create bad precedent by allowing federal agencies to sidestep the formal rulemaking process simply by labeling the regulations as “voluntary.”  Click here to view the submitted comments.

www.supremecourt.gov

As the Supreme Court reached the end of its term, the justices churned out two major First Amendment decisions.  On June 27, the Supreme Court struck down a California law attempting to ban the sale of violent video games to minors.  The law would have prohibited sales and rentals to children and required labeling for games that fell within the violent depictions laid out in the legislation, but the Court emphasized that “the basic principles of freedom of speech and the press…do not vary when a new and different medium for communication appears.”  To view the full opinion (Brown v. Entertainment Merchants Association), click here.

In a second significant decision, the Supreme Court ruled in favor of free commercial speech by invalidating a Vermont law that banned certain uses of prescription information collected by “detailers,” or pharmaceutical representatives that gather and use such data to better target their marketing efforts to physicians.  The Court found the state’s restrictions to violate the First Amendment, reasoning that “fear that speech might persuade provides no lawful basis for quieting it,” and without any deceptive or fraudulent practices, no legitimate reason for banning the speech existed.  To view the full opinion (Sorrell v. IMS Health), click here.

The justices have also begun accepting cases they plan to hear next term, including FCC v. Fox Television, in which the Court will have the opportunity to decide whether FCC policies banning indecent content on broadcast TV and radio are constitutional.  Reaching a decision as to whether the FCC’s ban on nudity, expletives, and other “inappropriate” content violates the Constitution raises the possibility that the Court will overturn its 1978 landmark ruling in FCC v. Pacifica.

Commercial speech and First Amendment implications have been discussed at previous law conferences and will be covered during this year’s 33rd Annual PMA Marketing Law Conference in Chicago from November 15-16, 2011.  For more information on the conference, click here.

In addition to the privacy dispute over Facebook’s new facial recognition feature, several class action lawsuits (in California, New York, and most recently, Illinois) have been filed against Facebook during the last few months for using minors’ names, likenesses, preferences, and activity on the site.  The plaintiffs claim that Facebook has been releasing this information to advertisers for them to direct their ads to specific demographics, and using the collected information to place in “social ads” by the social media site itself.

Other recent social media litigation includes several class actions filed against both Twitter and MySpace in federal district court, alleging violations of the Telephone Consumer Protection Act (TCPA) because of confirmation texts sent by the social media sites after users chose to “opt out.”  Click the links above to view the complaints.

Social media and related legal issues will be covered in depth during several sessions at the 33rd Annual PMA Marketing Law Conference, November 15-16, 2011 in Chicago.  Discussing the internal issues in developing and carrying out corporate social policies will be Melissa Landau Steinman, Partner, Venable LLP; Sarah LaVoi, Corporate Counsel, Marketing-Intellectual Property, McDonald’s Corporation; and other speakers to be named.  In a second session, Ken Florin (Partner, Loeb & Loeb LLP), Christopher McCleary (Associate General Counsel, VISA), and other panelists will explore the external aspects of social media, including the current legal, regulatory, and intellectual property challenges.   Continue to check the PMA website for updates to the conference agenda and details on registration.

www.fda.gov

FDA Announces New Labeling Regulations for Sunscreen

On June 14, the FDA announced that after evaluating study data, it has developed new testing and labeling requirements for sunscreen products, “so that manufacturers can modernize their product information and consumers can be well-informed on which products offer the greatest benefit.”

The new guidelines illustrate an effort by the FDA and the Obama administration in the fight against high rates of skin cancer in the U.S., as well as an attempt to combat false advertising claims being made by sunscreen manufacturers.  For details on the new labeling regulations, take a look at the FDA’s press release.

Privacy Organizations File Complaint Against Facebook for New Facial Recognition Feature

www.facebook.com

On June 10, the Electronic Privacy Information Center (EPIC) and several other privacy organizations filed a complaint with the FTC about Facebook’s new facial recognition technology that allows for the automated “tagging” of Facebook users in photos.  EPIC alleges that the service is unfair and deceptive, particularly because the feature went into effect without asking the permission of users first, and should be something users can “opt-in” to instead.  Additionally, EPIC argues, third parties like advertisers and app developers may be able to access the personal information and “biometric identifiers” without users’ permission.  See EPIC’s news release here.

Facebook contends that since the facial recognition tagging technology rolled out in December, millions of people have used the feature with few complaints.  In addition, Facebook emphasizes that the feature can easily be disabled through a user’s privacy settings.

These issues, and related topics, including social media, behavioral advertising and health claims in advertising, will all be covered in depth at the 33rd Annual PMA Marketing Law Conference, November 15-16, 2011 in Chicago.  Click here for more details.

On April 28, the Interagency Working Group on Food Marketed to Children released the “Preliminary Proposed Nutrition Principles to Guide Industry Self-Regulatory Efforts.”  The Working Group consists of representatives from several agencies, including the Federal Trade Commission, the Centers for Disease Control and Prevention, the Food and Drug Administration, and the United States Department of Agriculture.  The Working Group aims to provide uniform nutritional and marketing principles that will promote children’s health while reducing obesity.

Despite its legitimate goal, the proposal sets overly ambitious standards that will be challenging for the industry to meet, especially due to the definitions regarding what activities by food companies constitute “marketing.”   The proposal would ban various forms of marketing to children and adolescents for virtually all foods.  And it would reach marketing activities not directed toward children – such as using endorsements by celebrities or athletes who are popular with children or using words like “child” or “kid” on packaged foods.  The proposal would also ban advertising/promotion on an Internet site with a 20% share of viewers being adolescents or children.  This would have a devastating effect on social media sites.

The effect will be felt far beyond the food industry, including on business partners and promotion partners of food companies; in addition, the proposal sets a very dangerous precedent of what constitutes “marketing to kids” and an even more troubling precedent in its move to restrict commercial speech through nominally “voluntary guidelines” backed up by four powerful governmental agencies.

PMA will comment to the FTC on the proposed rules and is engaged in numerous other steps, both with a coalition of other concerned entities, and independently, to help protect the industry.

These rules and the subject of marketing to children will be extensively covered at the PMA Marketing Law Conference, November 15-16, 2011 in Chicago.  For more information on the conference, click here.