Category: Blog

I attended the 39th Annual Marketing Law Conference hosted by the ANA/BAA that took place right before the Thanksgiving Holiday  . The ANA (Association of National Advertisers) acquired the BAA (Brand Activation Association) back in 2014 and they have continued to host this annual event. I’ve been attending this event now for over 10 years and have met some of the new team members, but many of the presenting sponsors have remained the same and the content has always been very informative.

They had another great year in attendance with over 750 professionals ranging 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 titled “BREAK THROUGH: Legal Strategies for Dynamic Businesses”.

I arrived in Chicago the afternoon of the first day of the conference, so I missed the morning sessions. One that they hold each year is the Basics of Promotion, Sweepstakes and Contests, so I usually don’t mind skipping that. I was able to make the afternoon session on “The Latest Hot Button Issues in Real-Time Marketing and Social Media”. This was a panel session that included legal Counsel from Coca-Cola, Intel, MasterCard with the moderator from the firm Davis & Gilbert. They reviewed some of the key issues that can arise when your social media team wants to post something online in real-time. The now famous Oreo cookie tweet that was posted when the lights went out in the New Orleans Super Dome during the Ravens v. 49ers Super Bowl game was brought up as a successful example. But several others noted have not been.

One of the highlights of the conference each year comes from Linda Goldstein, a Partner and Head of the Advertising, Marketing and Media practice at BalkerHostetler in New York who delivered her annual industry review on the morning of Day 2. Linda’s presentation focused on Sweepstakes, Contests, Privacy, Digital and Social Media. She opened up stating that “mobile now has become the glue to our digital world” and she associated the phone to an adult pacifier. Linda stated that there are now 4.1 billion users of mobile messaging apps and that by 2020 there will be 10x’s the number of devices as there are people in the world.

Influencer marketing was the term that we heard the most about at this year’s conference and Linda stated that 2018 will be the year of the micro-influencer. These are some of the same people that started out blogging and posting videos on YouTube. They have now become more important to brands then celebrities and the FTC has been closely watching this trend. The FTC sent 90 influencer warning letters this past April after reviewing numerous Instagram posts by celebrities, athletes, and other influencers, in response to complaints by consumer watchdog groups. These letters were to remind influencers and marketers that influencers should clearly and conspicuously disclose their relationships to brands when promoting or endorsing products through social media. The FTC provided further endorsement guidelines on how to do this. As this relates to sweepstakes and contests, we have been informing our clients to always include in their hashtag the word sweepstakes or contest as part of the promotional hashtag or as a second hashtag that should be used in all tweets that gain a participant an entry in order to stay compliant with these FTC guidelines.

Linda entertained us through her presentation with video clips that showcased how a brand might soon be able to change their marketing in real time. She showed a male who was making an in-store purchasing decision on perfume for his girlfriend’s birthday present. His girlfriend bought her favorite perfume before and he was trying to figure out the right brand. These marketers where able to make changes to the packaging in store in order to help him remember and persuaded his purchase.

She also reviewed again this year how we need to be careful with sweepstakes and contests that ask the participant to post a photo. The Oreo Dunk Sweepstakes asked participants to take a photo or video with their favorite Oreo. That is very hard to do in a store without purchase, so they included an AMOE. Contests must involve a a genuine level of skill and include objective criteria with qualified judges that can apply that criteria. Beware of public judging, using votes, and take steps to preserve the skill level. It is recommended to limit impact of pubic judging which also minimizes risk of brand embarrassment. You want to avoid a popularity contest, so put rules in place and don’t incentivize extra votes.

As far as consideration in mobile promotions, data charges may apply if having to use only a mobile app. Each entry that is made via a mobile device will result in a message or data charge or debit to the user’s account. While there is some debate as to whether standard text message data charges “should” be deemed to constitute consideration, the prudent approach is to treat these charges as consideration and provide an AMOE. You should also always disclose that text messaging charges may apply. Again there still has not been any lawsuits in text-to-win sweepstakes that don’t include the AMOE, but it’s a risk that your company may not want to take.

On the morning of Day 3 we were treated to another highly entertaining presentation from Ron Urbach, Chairman/Davis & Gilbert LLP, which was titled “Transformation Sweeping Advertising and Marketing: Key Trends and Legal Developments”. Ron not only discussed what some of these trends are, but also how lawyers are responding to keep up with them and the demands of their clients. He brought up the term “Fake News” which he referred to as the “dark underbelly of social media” referencing the ads that were bought by so called Russian companies and not properly disclosed as such. Because of this, and other issues, consumers aren’t sure of who they can trust and are placing more of their trust in digital social media influencers. He also mentioned how these influencers are replacing celebrities and are changing the way advertising is created.

Influcencer Marketing is not only the latest trend, it is also one of the most cost-effective. Ron cited that studies have shown that working with influencers on a multi-channel campaign can drive up to 16 times more engagement than paid or owned media. Brands are working with these “micro”, lesser known influencers, who have smaller amount of followers, but their followers are more loyal. They must be true to their followers and also to the brand. Many are now working through multi-channel networks, turning these influencers into virtual content studios. The agencies may still be developing the overall creative concept, but the actual content is now created by all. Ron also cited the FTC letters that were sent to many influceners this past year and the updates to the endorsement guidelines that they posted.

All in all it was another great, full 3 days in Chicago and I’m looking forward to coming back again next year. I stayed an extra night and day this year to meet up with my daughter, Alex, who now is living outside of Chicago working as a veterinarian in an animal hospital in Libertyville, IL. I had dinner with her and her boyfriend, Tyler, Wednesday evening. Then Alex and I got to do some shopping up and down Michigan Ave. the next day before she took me to the airport to fly back home. We bought each other Christmas presents, though she kept hers and I won’t get mine till Christmas Day when she’ll be coming home.