Posts Tagged Marketing Law

FTC Proposes Revused Green Guides; PMA to Cover at Law Conference and Webinar

Posted by ekabak in Advertising, advertising law, Marketing Law, Notable, PMA Events on October 7th, 2010

The Federal Trade Commission, on Wednesday, October 6 , 2010 proposed long-anticipated revisions to its “Green Guides” for making environmental claims. The changes to the Guides dramatically change what advertisers are likely to say, especially in the areas of making unqualified environmental claims and in respect of certifications and seals of approval. The Guides deal with claims addressed by the current Guides, as well as claims not addressed therein, such as in respect of “”renewable” materials or energy.

The revised guidelines are of major importance to anyone making environmental claims and worthy of serious in depth review by all counsel and marketers dealing with these issues.

WEBINAR: The PMA will be hosting a webinar about the new guildelines featuring Chris Cole, an advertising law partner with Manatt Phelps & Phillips in Washington, DC on Tuesday, October 12th at 2pm EST. Click Here to register.

And in November the PMA Law Conference will cover the matter in even greater detail in the Friday November 19^th session Green Advertising/ The New Rules with a panel headed by Brian Heidelberger, Advertising Law Partner at Winston & Strawn, and including David Mallen, Assoc Director, NAD, BBB, Julia Oas Corporate Counsel from SC Johnson and Wendy Reed, Partner at Heenan Blaikie. Visit www.pmalink.org/law2010 for full details about the conference.

Ad Age and The NY Times have both covered the guides announcement.

Comments to the FTC are due by December 10,2010.

See www.ftc.gov.

CSR Marketing, FTC, Green Guides, Green Marketing, Marketing Law

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9th Circuit Reverses Lower Court in Marlboro Miles Case

Posted by Brian Fergemann in Loyalty programs, Marketing Law on June 3rd, 2009

In an important ruling for the promotion industry, the United States Court of Appeal for the 9^th Circuit yesterday reversed a lower court decision in Reynolds v. Philip Morris USA Inc., which held that California’s gift certificate law applies to on-pack proofs of purchase issued by Philip Morris in connection with its Marlboro Miles loyalty program.

The plaintiff asserted, among other things, that Marlboro Miles were “gift certificates” regulated by California law, and that termination of the Marlboro Miles loyalty program violated the prohibition against imposing an expiration date on gift certificates. Under the California law, gift certificates distributed pursuant to a loyalty program could only expire if the expiration date was printed on the gift certificate, and no expiration date was printed on the Marlboro Miles.

Philip Morris moved to dismiss this claim on the basis that Marlboro Miles were not gift certificates, but proofs of purchase which are commonly used in connection with consumer loyalty programs. On June 5, 2007, the district court denied Philip Morris’ motion to dismiss, agreeing with the plaintiff that Marlboro Miles are gift certificates that fall under the purview of California’s gift certificate law. However, the 9^th Circuit disagreed, concluding in no uncertain terms that the Marlboro Miles were a proof of purchase, “just like a cereal box top,” and not a “gift certificate” as the term would ordinarily be understood.

If not reversed, the lower courts decision would have had far-reaching consequences for the promotion industry and the ability to offer loyalty programs where “points” are obtained through purchases of products. In order to avoid an obligation to accept such points in perpetuity, an expiration date would have had to be printed on each point “certificate” in capital letters in a 10-point font. It now appears safe for companies to continue to offer point certificates in connection with a loyalty program, without fear that doing so will violate California’s gift certificate law.

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.

loyalty program, Marketing Law

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What’s In Your Social Media Policy?

Posted by Brian Heidelberger in Digital Marketing, Marketing Law, Social Media on May 21st, 2009

Has your company created a social media policy yet? It’s probably a good idea to think about doing it now, rather than later when the !@#%$ hits the fan. You know that your employees are social networking, both personally and on behalf of your company and your clients (if you are an agency). But you may not have thought about the fact that if the employee’s messages are in furtherance of the company’s or its client’s goals, the employee’s statements may be attributable to the company, even if only made on the employees own social networking pages during their own time. Over-arching issues you are going to have to consider are those relating to false advertising, intellectual property, as well as SEC compliance.

Disclosing material connections and what it means for you

Most notable are those issues that relate to the FTC’s recent proposed changes to the Endorsement and Testimonial Guidelines. One issue you are going to have to deal with is “disclosing material connections”. Specifically, the FTC has taken the position that employees who post endorsements on message boards on behalf of their company or their clients should disclose their connection with the company. They also have taken the position that bloggers who receive a free product from an advertiser must disclose the gift when making an endorsement of the product, even if the endorsement reflects the honest opinion of the blogger. The FTC believes that consumers would not otherwise expect these kinds of connections, and thus, the required disclosure. This gets pretty tricky when you try to deal with it from practical perspective. For example, if I become a fan of the new KFC Grilled Chicken on Facebook, isn’t that an endorsement of the product? If so, in becoming a fan, do I have to disclose that I do legal work for KFC? I hope not, because this doesn’t even seem possible.

Understand the “typicality of consumer experience”

In the proposed changes to the Endorsement and Testimonial Guides, the FTC indicated that a consumer’s product endorsements will be interpreted as a “typical” experience such that an endorser’s experience needs to be representative of what consumers will achieve, otherwise the endorser must disclose the generally expected performance (and have proof of it). Interestingly, they indicated that the old “results not typical” disclaimer isn’t good enough. It’s not entirely clear how this issue will shake out in the final rule, but in the meantime, it certainly raises issues from a social media perspective. Is the FTC saying that when you give a blogger some free product to try and they blog about their personal experience with your product, that you have to somehow get them to disclose what a typical consumer’s experience is with the product? I just can’t get my head around how a company could get a blogger to disclose the typical experience of other consumers, which it probably doesn’t even know.

Reducing your company’s liability

The FTC did provide some nice guidance with regard to how an advertiser can reduce their liability when using social media. In particular, the FTC indicated advertisers who hire blogging and other similar services should:

Require companies to provide guidance and training to their bloggers about the need to be truthful and to disclose material connections;
Monitor the bloggers to confirm compliance with the training; and
Take action to have posts removed that don’t comply with the guidance and training when they are identified.

Notice that the FTC doesn’t seem to be maintaining a zero tolerance policy, but rather is asking companies to take good faith attempts to assure that its guidelines are followed.

corporate policy, Marketing Law, social media

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