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.

marketing-law-conference-20We attended the BAA’s 2016 38th Annual Marketing Law Conference which wrapped up last week on Friday, Nov 11th. The organization (Brand Activation Association) 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 entitled “FACE-OFF: Dynamic Technologies Vs. Regulatory Controls.

ed-kubak-2016“Ours is an industry of rapid evolution” stated Ed Kabak, SVP, ANA and Chief Legal Officer, BAA who kicked off the first official day of the conference. “Since we deal with best practices and the state of the art in Marketing and Advertising Law and Digital Media; IP and Privacy, FTC, State A.G. and state-regulation, Lanham Act, Class Actions, and other areas, this forum is invaluable for marketers to move responsibly forward.”

The conference started off with a day of pre-conference sessions dedicated to basics as well as advanced subjects. I arrived in Chicago that day in time to attend the “Advanced Social Media Sweepstakes/Skill Contests/The Major Platforms and Pitfalls session. This included a nice review of the major platform promotional guidelines including Facebook, Twitter, Instagram, Pinterest and Snapchat. One case study reviewed was the “Drive a Tank” Sweepstakes where a gaming sponsor awarded a grand prize that allowed the winner to actually drive a tank on top of two cars. There were 1.8 million entries from 40,000 entrants who were awarded extra entries from sharing on Facebook and Twitter. There were several issues, such as they didn’t disclose with a proper hashtag to comply with the FTC’s endorsement guidelines and they had to take out additional liability insurance to allow for someone to actually drive this tank.

As has been the case in past years, once the conference officially opened we heard from Linda Goldstein, a Partner and Head of the Advertising, Marketing and Media practice at Manatt, Phelps & Phillips LLP in New York who delivered her annual industry review. Linda reviewed some of the most newsworthy developments of the year and what they mean for marketing and advertising lawyers and professionals. Linda’s talk is always 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.

linda-goldsteinLinda noted that Scavenger Hunts are making a comeback and questioned if these type of promotions pose a time consideration. Delta Airlines ran a Snapchat promotion where participants had to look for filters throughout the LA area. How much time is too much? The Supreme Court did state in a prior ruling that a half an hour is okay. She recommended that you use your gut and impose limits if you feel uncomfortable about the risk.

As far as consideration in mobile promotions, data charges may apply if having to use only a mobile app. Text messages should still have an AMOE and you should disclose that text messaging charges may apply. However, if downloading a free app, there is no consideration, however if the app is a free trial and the participate has to actually cancel to avoid future charges that could be troubling.

Linda entertained us throughout her talk with videos of a new, imaginary app her team created called PizzaMon Go! It included real robots who would come to you and make you a artisan, personal pizza with your choice of toppings. Several issues arose as these young entrepreneurs launched this new technology including privacy issues, in-app purchase requirements, weather related issues that impacted events, and more. In the end, one of the robots was designated as our next Supreme Court Justice.

On Friday 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. His presentation was on the interplay of marketing and advertising law to activate brands. Ron stated that every day attorneys make risk decisions when advising clients so it would probably be helpful for them to know what is on the regulators’ minds. We get asked the question quite often, what are the risks involved? Ron reminded us that Attorney Generals are political animals who will track publicity; that the “reasonable person” standard invoked by the FTC may not be what is considered reasonable at the state level; and that consumer complaints can drive AG actions.

Some recent examples Ron gave was that the FTC charged Lord & Taylor that it deceived consumers through paid articles and paid Instagram posts from the online publication Nylon that came from 50 “Fashion Influencers” promoting a certain dress. Warner Brothers Home Entertainment paid certain gaming influencers, such as PewDiePie, to post positive comments about the Shadow of Modor Game. The Kardashians have been charged that they did not disclose their relationship to the brands that they hype of Instagram.

ron-urbach-regulators-videoRon did emphasize that promotion is one way for a brand to develop trust with consumers. So it’s always best to be transparent. One thing that I have always heard since the early days of social media. The promotional terms for sweepstakes and contests are a contract with the brand and the consumer. So he advised not to use last year’s terms and to learn from the lessons of the last year. Be consistent with what you say to the consumers, in your ads, through your social influencers, entry materials and POS. Ron ended his talk with a video that asked people on the street “If you were a hashtag, what would you be?” Ron’s was #WhatIDoForClients. Here is another one of Ron’s videos that he shared with us on the “Regulators”.

chicago-2016This year’s conference did start off the day after the election. So there was quite a bit of discussion about it during the breaks and cocktail receptions. It was noted that Donald Trump has spoken out against the new privacy rules the FCC has imposed along with some changes to the advertising tax laws that are on the table.  So 2017 looks to be the busiest congressional year yet. We can review what these changes will be at next year’s 2017 BAA Marketing Law Conference which will again be back at the Marriott on Michigan Ave. in Chicago starting on Nov. 13. Hope to see some of you again there.

baa-2016BAA LogoI’ll be headed back to Chicago to attend the Annual BAA/PMA Marketing Law Conference which takes place next month,  November 9-11, at the Downtown Chicago Marriott. This year’s conference is titled “FACE-OFF: Dynamic Technologies vs. Regulatory Controls”. It is known as the broadest marketing and advertising law conference in this country which features deep, practical legal content presented from speakers from major brands, inside and outside counsel and regulatory agencies. It also includes some great networking and two large cocktail parties.

Last year’s conference, which I attended, had another record attendance of 750, with over 200 major brands present. I summarized the conference in this post in which I stated  that there were two central themes that appeared to be prominent. The first was Real-Time Marketing and how more brands were now starting to put much more effort into connecting their product or service with consumers in the moment. The other central theme was focused on the FTC’s Endorsement & Testimonial Guidelines, which even though not new, there were clear signs that the FTC was starting to heavily monitor the happenings online and on social media. So what insights will this year’s conference generate?

Some of the topics at this year’s conference will again include real time marketing and social as well as explore new technologies. Speakers from Oculus, Twitter, Google, Buzzfeed, Whole Foods, Lyft, Airbnb, Spotify and Microsoft will present. In fact one of the keynotes will be from Jordan McCollum who is general Counsel for Oculus VR. Another keynote will be from the FTC Commissioner Terrel McSweeny who will discuss further the FTC policy and enforcement priorities going forward into next year. Sweeps, contests, gaming, loyalty programs and IP issues will again be discussed. Linda Goldstein from Manatt, Phelps & Phillips, LLP, the first main speaker who always delivers an exciting and chock full presentation, will review the past year as it relates to those topics.

The last day of the conference will again feature another highly anticipated presentation from Ron Urbach, Chairman of Davis & Gilbert LLP, this year titled “Brand Activation: Law in Review”.  At last year’s conference Ron showed us a video he and his team created of a group of fictitious millennials who were using social media and technology to launch new products, and of course, not doing it all legally. Besides the key presentations there will be many break-out sessions and round-table discussions covering many different topics. You can see the whole agenda here.

If you’re interested in attending you should register here quickly since regular pricing will increase after Oct. 10. I’ll be right on Michigan Ave. at the Marriott from Wed. Nov. 9 till Fri., Nov. 11, so make sure to say hello if you’re there. Hopefully I will get a chance to run next door for my annual visit to Nordstrom’s shoe dept!