Sweepstakes, Contests, Social Media, Real-Time Marketing, FTC, all focus at BAA’s 37th Marketing Law Conference

The BAA’s 37th Annual Marketing Law Conference just wrapped up on Wednesday, Nov 11th, in Chicago which I was glad to attend. The organization (Brand Activation Association) broke another attendance record with over 760 attendees who ranged from leading regulators, legislators, corporate counsel, marketers and technology innovators who gathered again at the Marriott Hotel on Michigan Ave.

This year’s conference was entitled “Walking the Line: Between Innovation and Regulation”. “The theme of this year’s conference perfectly sums up the challenge of our industry and why our event is more important than ever,” says Ed Kabak, BAA’s Chief Legal Officer. As has been the case in past years, Wednesday’s first session featured Linda Goldstein, a Partner in the Media and Marketing practice at Manatt, Phelps & Phillips LLP in New York. Linda reviewed some of the most newsworthy developments of the year and what they mean for marketing and advertising lawyers and professionals. As usual Linda’s talk was very informative and entertaining as she  reviewed again the basics of sweepstakes and skill contests along with social and digital media legal issues from some of the latest promotions. I wrote about Linda’s presentation from last year’s conference here in which she covered some of the same legal matters.

There were two central themes that appeared to be prominent at this year’s conference which Linda first touched upon in her presentation. The first was Real-Time Marketing. More brands are now putting much effort into connecting their product or service with consumers in the moment. To do this successfully, the content must be relevant. We reviewed many examples of those that pulled it off well and those that didn’t. Some brands have started using the new live streaming apps, Periscope and Meerkat, that are perfect ways to connect experiential marketing with consumers. However, broadcasting live video to the world has its inherent risks, along with possible copyright and trademark infringements

The other central theme was focused on the FTC’s Endorsement &Testimonial Guidelines which are not new, but it appears the FTC is now clearly monitoring what is happening online and on social media. Sweepstakes and contests are a material connection to the brand, and therefore need to be disclosed. They are recommending brands direct the participants to us the #sweepstakes, #contest, #entry hashtags along with their promotional hashtag in any social media posts that gain the consumer an entry. Another type of material connection that should be disclosed is an employer/employee relationship to the brand. The FTC charged Sony and their agency, Deutsch LA, with deceptive behavior on Twitter when it found that employees were using the same hashtag that the consumer was using, #GameChanger, when posting about their Playstation Vita handheld device.

Real-time marketing is one of the areas that the FTC is highly looking at. Linda ended her presentation by stating that trust is key and that brands that walk the talk will be rewarded. “These real time platforms will take us to new territories; we the attorneys’ must protect our clients as we walk the line between innovation and regulation.”

Wednesday morning we were treated to another highly entertaining presentation from Ron Urbach, Chairman/Davis & Gilbert LLP, who also demonstrated how important it is for those in our industry to keep current. Ron used the term “Disruption” to describe how today’s technology allows new brands and services to thrive.  He pointed out Airbnb, which has changed the way we travel, and Kickstarter, the way we invest. So to help get his point across Ron created a video of  a group of fictitious millennials who were using social media and technology to launch new products, such as DrinkAgain Pay Water Fountains and Rag Exchange – The Fashion Lease Experience. Ron was their lawyer, or as one of the female characters called him, their “interpreter”.

This video demonstrated several areas in which the group crossed the line and Ron had to reign them back in to stay compliant. We were reminded that if you link your product to a celebrity, don’t forget about the FTC endorsements guidelines. If you’re going to do live streaming, then you better establish guidelines, train the person(s) doing it and then monitor it carefully. Brands must also develop a social media policy, train employees, monitor and then enforce their policy. And, don’t forget to get consumer’s consent before re-posting any photos or videos of theirs.

Ron summed up his presentation by stating that today we need “Live Lawyering”, along with training and best practices. Pay attention to “Disclosure in a Disruptive World – and provide the right info at the right time in the right way.”

Hopefully many of us will be headed back to next year’s 38th Annual Marketing Law Conference. We were treated with some beautiful, unseasonably warm weather this year. Can the BAA conference team please schedule that for us again?

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