Promo - January 2009 - (Page 27)

Regulatory You already know 2009 is going to be tough. With consumer confidence and disposable income in a race to the bottom, and with market conditions squeezing marketing budgets, this is probably not going to be your favorite year—unless you sell résumé services or relaxation tapes. A new administration in the White House adds another unknown: Will the Obama government take a more activist approach to some of the issues that affect brands and promotions? And if so, will it have the bandwidth to tackle those issues while trying to pursue two wars overseas and repair the banks, the auto companies and the broad economy on the home front? Answers to those questions won’t be clear until sometime after Jan. 20. But you need to be aware of important legal and regulatory developments already in the pipeline and headed for possible implementation this year. Here’s a quick pre-Inaugural tour of some of the agency rules and legislative measures that may very well change the way your company markets, advertises and promotes in 2009 and for years after. rity who appears in an infomercial endorsing a new oven bag that claims to cook a whole chicken in 30 minutes. If that celeb sees that five studio efforts to cook a chicken in that time fail, and then takes part in an ad that substitutes an hour-cooked chicken, he or she can be held liable for the fraud. “This is consistent with the FTC’s recent enforcement activity in the past several years,” says Joseph Lewczak, a partner with Davis & Gilbert LLP. “They’re trying to pin liability not only on advertisers themselves, but on other people connected with the ad. They’re looking for bottlenecks where they can capture the right person who will have enough control to stop an obviously false or misleading ad from happening.” a new skin cream, for example, would have to keep watch to make sure none of its bloggers were claiming that the product could cure psoriasis. From the other direction, the new FTC guidelines want to debate whether anyone receiving material compensation to give an opinion about a product or service in any marketing medium should be compelled to disclose that they’re being paid by the brand. These channels would include blogs and online discussion boards—for example, a video game blogger who’s been given a free review copy of a new game, or a company employee posting in a chat room about products related to his employer’s business, would have to disclose those facts or be held liable. THE ECONOMY ISN’T MARKETERS’ ONLY CHALLENGE THIS YEAR. THE FTC HAS A FEW SURPRISES IN STORE, TOO. In the past, that has meant extending responsibility to the media. But of course there are a host of new media types out now that didn’t exist in 1980. Blogs have become a particularly prevalent channel for getting out marketing claims, and the FTC is asking for comment on the notion of extending endorsement liability to bloggers who have received some form of material compensation from the marketer brand. That could include something as basic as sending an influential blogger a new product—a digital camera or a snowshoe—to test and then discuss or review in a post. If sending product constitutes a commercial relationship between the brand and the blogger, then the marketer could be responsible for the accuracy of anything that blogger might say on the product’s behalf. That might mean that brands using social media to get out the word about But the disclosure requirement could also affect a marketer using “street teams” of volunteers who earn points toward prizes, such as concert tickets or gadgets, for talking to their friends about a marketer’s products. “These incentives would materially affect the weight or credibility of the team member’s endorsements,” the proposed guidelines say. “They should be clearly and conspicuously disclosed, and the advertiser should take steps to ensure that these disclosures are being provided.” As to the form of this disclosure, Lewczak says he’s an advocate of unique or distinctive approaches. “You don’t have to go out there and say, ‘Hey I’m being paid by CocaCola,’ ” he says. “If everyone on the street team wears a Coke T-shirt or some other form of obvious branding paid for by the advertiser, theoretically Continued on page 28 PAYING FOR PRAISE In late November, the Federal Trade Commission put a new set of guidelines about endorsements and testimonials out for public comment through the end of January 2009. The document is the first update to the FTC’s thinking about best endorsement practices since 1980, so there’s plenty to update. The changes contained in the new proposed guidelines come from an earlier round of public comment in January 2007. One testimonial change being sought by the FTC is to expand liability for the truth of marketing claims to include the endorsers, so that celebrities and experts who appear in marketing materials can also be held responsible for fraudulent claims. For example, the proposed guidelines postulate a celeb- january 2009 / WWW.PROMOMAGAZINE.COM / Promo 27 http://www.promomagazine.com

Table of Contents Feed for the Digital Edition of Promo - January 2009

Promo - January 2009 Contents Editor's Note Casual Games Dr. P and the Roses Outside the Cup Geek�Chic Expresa Tu Hispanidad Jump Start Commentary The Show Must Go On Fed Up Q&A: Smart Food Agency Center Resource Center Gray Goes Green Index of Advertisers

Promo - January 2009

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