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.

Happy New Year 2017Happy New Year. Usually I will post my end of year review a day or so before the end of the year. But this year I got busy and stayed away from the computer for a few days. So I’m posting it now. Here are 10 posts of what I thought reflected what was happening at the time and a few that were kinda cool for us. Happy New Year and here’s to wishing a happy, healthy and prosperous year for us all.

Last year for the Doritos annual Crash the Super Bowl Video Contest

Doritos ContestMy January posts always cover the Super Bowl along with all the marketing, advertising and promotions that go with it. Super Bowl 50 saw Payton Manning going out on top with the Denver Broncos defeating the Carolina Panthers.  PepsiCo, the parent company of Doritos, was back again for their 10th and last season of their Annual Crash the Super Bowl Video Contest. Who will be in this year’s Super Bowl LI 2017?

Wrestlemania Reading ChallengeSweepstakes encourages participation in the WrestleMania Reading Challenge!

New for 2016 was this sweepstakes, a partnership between WWE and First Book that we got to host and administer. The sweepstakes encouraged families to read together for 15 minutes every day, then record what they did for a chance to win a trip to WrestleMania 32!

FacebookFacebook’s F8 Conference reveals new tools for businesses to connect with consumers

The social giant hosted their annual conference for developers known as F8 back in April. Here they rolled out more updates for their Messenger platform and launched a few bots on the platform as well. Facebook Messenger continued to roll out more updates as the year went on copying many of SnapChat’s features. Facebook ended the year struggling to deal with fake news on it’s platform which will continue to be an issue into 2017.

Social SweepsGiveaways, Sweepstakes & Contests…best practices for keeping them legal

I was encouraged to again write this legal review when I was asked the following question which varies a little from time to time, ”We are doing a quick giveaway via social media and want to check, are we covered from a legal aspect?” My question back is, do you have official rules? This post covers the rules should always include.

AC Moore Costal WeddingWe’re celebrating brides this month with the launch of the A.C. Moore Crystal Coast Wedding Contest

It was the month of June, which is known as the “dads, grads, and brides” month. So I wrote a post on a Father’s Day promotion the week before and the week before that I wrote about a Twitter promotion for grads. So this post was focused on brides. A.C. Moore Arts & Crafts launched  a chance to win a wedding with their Craft Me a Crystal Coast Wedding Contest. The grand prize wedding consisted of a trip for the bride and groom to the Crystal Coast, North Carolina, to get married on October 22, 2016.

G2 ContestPilot Pen and Shonda Rhimes announce the $50,000 Overachievers Grant Contest

This was probably the biggest promotion that we worked on in 2016 and the one that has received the most comments from our post back in July. In fact I just received another one today asking about the winners. While we don’t have any part of the judging of this contest, the period for the judges to review all the submissions was till December 30, 2016. So we expect that they will announce the finalists on their web page very soon. So we’ll be watching for the announcement.

TideRaising an Olympian: Simone Biles and the Final Five at the Rio 2016 Olympic Games

I wrote a few posts back in August covering the Summer 2016 Olympic Games in Rio. This surely was one of the greatest highlights of the year in sports for the USA. Simone Biles and Aly Raisman picked up the gold and silver medals respectively in the Women’s Floor final. Then the Final Five went on to win gymnastics team gold. Procter & Gamble’s “Thank You, Mom” ad campaign was back, featuring real Olympic athletes and their moms. Part of this campaign featured the “Raising an Olympian: Simone Biles – Rio 2016 Olympic Games” ad. P&G was smart enough to realize at the time that Simone was going to be a new star. See again this heartbreaking ad of Simone and her Mom for Tide.

Orioles HandoutTonight’s the final game for the Dream Fan Experience Sweepstakes at Camden Yards

This was one of the last games of the regular season for MLB, with my team, the Boston Red Sox playing against the Baltimore Orioles. They ended up beating the Orioles for their sixth straight victory. They would go on to the post season only to get swept by the Cleveland Indians were we got to see David Ortiz’s (Big Papi) career come to an end. I was so glad that I made a trip to Toronto that season to see him play with the Red Sox against the Toronto Blue Jays. I had hoped to see a World Series with the Red Sox and the Chicago Cubs, which didn’t happen. But the Cubs and their fans were finally awarded their first World Series title in 108 years!

Marketing Law ConferenceHighlights from the 2016 BAA Marketing Law Conference in Chicago

I headed back to Chicago in November to attend the BAA’s 2016 38th Annual Marketing Law Conference. The BAA had another great year with over 750 professionals in attendance ranging from regulators, legislators, corporate counsel, marketers and technology innovators who gathered again at the Marriott Hotel on Michigan Ave. This is a great conference to keep up to date with the latest on regulations and rules in our industry. This year’s conference began the day after the election. So there were many discussions going on during the breaks and cocktail receptions about it. It will be an interesting 2017 to see what will now change.

Her Great Home GiveawayWinner awarded $250,000 in the Great Home Giveaway during Ohio State Football Game

This sweepstakes we saw are largest prize to date awarded which happened during one of the intermissions of this football game between Ohio State and Michigan. Congratulations went to Kathy Lowery from Columbus. She got to choose between the following options: 1) A $250,000 Trinity Home in an existing Trinity Home subdivision; 2) A $165,000 credit towards building a Trinity Home in a Trinity Home subdivision throughout Central Ohio; 3) $100,000 cash option. Last we heard Kathy choose to take the $250,000 home. The Ohio State Buckeyes ended up defeating the Michigan Wolverines 30 to 27 in double overtime in what was reported to be the most exciting college football game of the season!

Happy New Year! Thanks again for being a reader of our blog, Promo Talk, and I hope you’ll continue with us in 2017.

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.

Digimon-DVD-2I was asked a question yesterday that I get quite often so I thought I would write about it here again. The question does vary a little on how it’s stated. One of our clients asked the following “We are doing a quick giveaway via social media and want to check…are we covered from a legal aspect?” My question back was, do you have official rules? Their answer was no, they did not think they needed them for these small giveaways.

My answer is always yes, you do need Official Rules. Giveaways are just another word for sweepstakes which are a game of chance where the winners are normally randomly chosen. Contests on the other hand are a game of skill and participants usually are invited to submit some content (photo, video, essay, etc.). A panel of judges then chooses the winners based on criteria that are defined in the official rules. So whether you are planning to run a sweepstakes or a contest, or whether the size of the prize, small or large, there are rules and regulations that you must follow in order to be compliant.

VespaPhotoContestCrop1-300x300Therefore, you need to have a set of Official Rules that outlines the promotion. A promotion that contains all of these three elements: Prize, Chance (random selection) and Consideration (Purchase, Payment or Time) is an “Illegal Lottery”. The Time element is the grayest area. If you are planing to run a promotion that does include Consideration, then you must allow an alternate means of entry (AMOE).

Most social media entry requirements do not usually require consideration. However, writing about a product or a destination or taking a photo or video of the product/destination to enter may be consideration. For example, if the participant can take a photo of themselves with a product in a store, then a purchase would not be required. Or if you’re asking them to take a photo of themselves with a pair of shoes “out and about the town” that would most likely require purchasing the shoes and therefore, Consideration. There is a fine line between the two.

Another example is asking participants to take a photo while taking a bite of a doughnut or sipping a drink. They can’t return the doughnut or the drink then, so wouldn’t that require purchase? You need to ask if the participant can effectively compete without actually making a purchase.

FacebookpromoguidelinesAlso a very popular trend on social media is inviting participants to earn extra entries by performing different tasks and challenges on various platforms. Not only do you need to follow the guidelines of each social media platform, you also need to keep in mind the degree of effort that you are asking participants to perform to gain an entry. So how much time is too much and what can you really require? The Supreme Court did rule that watching a 30 minute TV show wasn’t too much time, so that’s a guideline to follow. But keep in mind that while awarding bonus entries for sharing/referring may not likely fall under consideration, it may be against Federal CAN/SPAM regulations.

Social-Sweeps-200x200Another thing to keep in mind is the FTC’s Endorsement and Testimonial Guidelines. They recently published a list of Q&A’s that state that when it comes to sweepstakes and contests, any incentive, no matter how minimal, such as an entry for making a post on social media sites, may be an endorsement. Thus it requires a disclosure. The use of the promotion title alone is not adequate, and they are encouraging including #Contest or #Sweepstakes or #Entry or a similar designation in a hashtag. The recent updated Q&A’s now states that using #sweeps as the hashtag is not enough and instead it should be #sweepstakes.

Cran headerA rising trend today on social media is running a sweepstakes or contest utilizing only a hashtag with no entry form. Entrants may be invited to post a tweet on Twitter or upload a photo on Twitter or Instagram utilizing a promotional hashtag. Many marketers like these types of promotions since it creates buzz and makes it easy for entrants. However, hashtag entries do not collect data on the entrants since there is no entry form to fill out. Data collection is the number one reason why marketers run sweepstakes and contests. Without collecting data this also can make it more difficult to contact winners. There are however, applications that you can utilize that include both such as what was discussed in this post.

So it all comes back to what your main objectives are for running a promotion. You need to consider what the risks may be and also be realistic in what you are asking participants to do. Most of all, be sure to cover yourself and your company by running a successful and legally compliant promotion that includes a set of Official Rules.

BAA-2015The 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 BAA-Edever,” 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.

BAA-Linda-2015There 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.”

BAA-Rag-ExchangeWednesday 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.

ChicagoRon 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?