By: Brian J. Meli
The 2014 ANA Advertising Law and Public Policy Conference is now officially in the books. The two-day conference held in Washington D.C. featured a formidable line-up of industry experts weighing in on a wide variety of hot-button topics in advertising law. The conference was both broad in scope and ambitious by nature, bringing practitioners up to speed on the current state of legal and regulatory affairs, and endeavoring to sketch a workable outline for what the future may hold in an industry reshaping itself daily through technology.
As you might expect from a group of speakers as varied as attorneys general, CIOs and members of academia, there were diverse viewpoints on a wide range of topics. But as the event got going, the topics began pooling into three discernable themes:
1.) Big data is out of the bottle.
Whether you call it big data, behavioral analytics, quantitative metrics or something else, the world has become an empirical place, and nowhere is that more apparent than in the advertising space, where the march from art to science continues unabated. It’s not a trend likely to reverse itself anytime soon, either. As one high-level executive at an ad holding company was quoted as saying when describing the state of the industry: “analytics is everything.”
But with the influx of all this data comes a rash of new legal and regulatory concerns. The biggest two—privacy and security—are implicated in just about every buzzword proliferating the marketing community. Terms like the Internet of things, predictive scoring, in-store tracking, and mobile payment apps all raise questions about how advertisers should collect, protect and use customer data. And those questions are being asked with greater frequency and urgency. What are the security risks inherent to receiving customer data? What is the legal liability in how and when that data is used? When is informed consent appropriate?
But there’s really one question underlying all the rest, and it’s one advertisers should be asking themselves regularly: just because technology can, does that mean we should? It’s a question implicating ethical considerations as well as legal ones, but with technology advancing faster than we reasonably have time to consider it, no discussion is in earnest without elements of both.
Settle in for a long debate on these issues folks, because consensus is that it’s only just beginning.
2.) The once and future state of advertising regulation
The interplay between and among industry self-regulatory bodies such as the National Advertising Division (NAD) and the Children’s Advertising Review Unit (CARU) of the Better Business Bureau; and government regulators such as the FTC, the FDA and the Consumer Financial Protection Bureau (CFPB), as well as states’ attorneys general offices has always been a delicate balance of jurisdictional authority, overlapping mandates and constituent priorities. But none of these things are static. As the priorities of these regulatory bodies change, as new rules are adopted, and as the standards by which unfairness and deception are judged evolve, so too must legal compliance strategies.
As advertising lawyers we must constantly be asking ourselves how we can make understanding and complying with shifting regulations easier for our clients. And to do that, we need to be actively debating the questions that affect them most. Where does the FTC’s authority stop and the CFPB’s begin, for example? Does the FDA have the final word on alleged deception in food and beverage labeling? What do new standards like the FTC’s requirement of two randomized controlled tests for specific health claims really mean for advertisers?
While compliance requirements may change, and the level of scrutiny applied to claims vary from agency to agency, two constants are likely to always remain: the continuous give and take between under and over regulation, and the debate between which is the greater evil.
3.) What is advertising, anyway?
While the question may sound downright Confucian (if no one sees an ad, does it make an impression), the truth is that social media and native advertising have combined in recent years to render commercial messaging essentially indistinguishable from other forms of mass communication, like news and entertainment. The very notion of what constitutes an ad has changed, and with it how we perceive and interact with the messages aimed at influencing our purchasing behavior. Where should the line be drawn? And when does crossing it constitute deceptiveness? Is requiring disclosures for sponsored advertising even a worthwhile policy goal in today’s limitless information society?
Forums like the ANA Law and Policy Conference tend to raise more questions than they answer, but their purpose is to get lawyers, policymakers and business leaders with diverse backgrounds talking about them, and in my opinion the ANA accomplished that exceptionally well this year.
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