We all just rang in the New Year and with it new and creative ways to reach consumers in the never-ending quest to capture their purchasing dollars. From texting to blogging to tweeting on the Internet and smart phones, marketers are keeping up with the rapidly changing times and technologies. These marketers are identifying and responding to tech savvy consumers’ purchasing habits, habits that are here to stay in the New Year and far beyond.
So, what does it all mean for complying with the advertising laws? Are the rules different for these platforms and practices? How for example does a consumer products company that relies on a network of thousands of faceless, nameless affiliate marketers to drive traffic to its website ensure that the affiliates are compliant with the advertising laws? What is its liability if they are not? What if the company hires a blogger to brag about its product on the Internet and the blogger makes unsubstantiated product performance claims? What is the company’s liability? And, oh yea, does the blogger have to disclose to readers that the company gave her a year’s supply of the product? What is the company’s liability if they told her to do it and she didn’t?
The list of questions is endless but the answers are not. These answers can be found in an article I recently wrote with Ellen Berge published in the ABA Antitrust magazine. “The More Things Change, The More They Stay the Same: Applying Section 5 to Emerging Marketing Practices” is a detailed roadmap of the application of Section 5 of the FTC Act (the principal federal statute governing advertising and marketing practices), to the use of affiliate marketer networks, blogging, texting and tweeting on smartphones, and more. It explains the FTC’s guidance for these practices, both when the guidance is clear and when it is not. We drill down on the FTC’s revisions to its Endorsement Guides and analyze FTC consent orders, closing letters and workshops, as well as private lawsuits, to give marketers practical advice on how to minimize legal risks while increasing sales using emerging marketing practices and technologies — practices and technologies that are here to stay for the New Year and many more to come.