3 Key Takeaways from the ANA Marketing Law Conference

The ANA Marketing Law Conference – while primarily aimed at educating lawyers in the finer points of talking to their marketing teams – made for an insightful overview of what lawmakers are looking at as social media continues to become a more prevalent part of people’s lives. The majority of topics covered surrounded digital and social media and the issues that are beginning to arise as more people go online to shop, communicate and consume entertainment.

People Want Privacy

With California’s Consumer Privacy Act (CCPA) coming down the pipeline and a host of other privacy acts in the works in different states, marketers are understandably anxious about what this could mean for the world of targeted ad delivery. A key component of most of these laws is a push for control over personal information. People want assurance that they have full clarity on what data companies are compiling, keeping or selling – and they want to be able to opt-out as they see fit. While CCPA only applies to companies who meet certain standards in the state of California, the precedent it sets will have implications across the rest of the United States. The ANA, however, has a six-step guide to help navigate the complicated world of consumer privacy and prepare for the CCPA.

  1. Understand the scope – Currently, only companies that have a gross annual revenue in excess of $25 million, receive or disclose the personal information of 50,000+ California residents, or derive 50% or more of their annual revenues from selling California residents’ personal information are currently required to be in compliance with CCPA by January 1, 2020.
  2. Comply with consumer rights – Consumers have the right to know what personal information is collected about them, whether (and to whom) their personal information is sold or shared and be able to opt out if desired, to access their personal information that has been collected, to have a business delete their data, and to not be discriminated against for exercising their rights under the act.
  3. Meet necessary requirements – A primary requirement of the act is notifying consumers of data collection and making it easy for them to opt out of its sale. Generating a “do not sell my information” link and displaying it on company websites and creating a consumer portal that allows them to decline is important to establish as soon as possible.
  4. Enable a cookie banner – Cookie banners should be used to notify consumers about what information you’re gleaning from them, what you need it for, and what you’re planning to do with it. Letting them know that cookies are being used to track their online activity is a key component of the CCPA.
  5. Track verifiable consent – Use unique identifiers to track opt-outs and make sure they are integrated into existing systems to ensure nothing falls through the cracks.
  6. Map the personal data flow – Generate detailed data use reports and visualize data flows so it’s clear when and where consumer information is tracked (whether or not it’s sold) and enable fulfillment of consumer rights requests at key points in the process.

While preparing for a privacy overhaul is daunting, understanding and planning accordingly is an important step in safeguarding against issues with government regulations.

Keep it Real

Newer developments in false advertising, particularly fake reviews and fake followers, will likely be important issues for the FTC to monitor in 2020.

Hot tip: fake reviews can and will get you in trouble with the FTC; just ask Sunday Riley. Recently, the skincare company settled with the FTC after admitting that it had given its employees detailed instructions on how to get away with writing fake reviews. The CEO of the company even instructed employees to utilize VPNs before writing these reviews so that they couldn’t be traced back to company servers, as well as downvote consumer reviews that were critical of the brand because enough downvotes could remove the lackluster reviews. Under the Lanham Act, where claims can be made against companies who engage in false or misleading advertising practices, fake reviews or the manipulation of real reviews is a punishable offense. The FTC has plans to crackdown on claims akin to Sunday Riley’s, since false or misleading reviews are becoming a serious point of contention for consumers, especially on sites like Amazon.

Fake followers also run afoul of FTC regulations, since it can be argued that influencers with a high follower count have sway over consumers’ purchase decisions. By paying for that sphere of influence, the influencers in question are inflating their perceived social capital which, in turn, has an impact on consumers’ perception of brands and products promoted. The use of fake followers is also punishable under the Lanham act as it is a manipulation of consumer perception and has monetary impact on the marketplace; it can be argued that the number of followers an influencer has is correlated with the trust consumers place in them.  Bot activity and the sale of fake followers is likely to be closely monitored by the FTC as well as the different social media platforms in 2020.

Avoid False Advertising

To keep from inadvertently slipping untrue statements into your advertising, transparency should be top of mind when talking to your target audience.

A central tenet to staying on the up-and-up is making sure that any claims you make can be substantiated with evidence. There’s a fine line between puffery and actionable language, so even qualifiers like “best” can get you in trouble with the FTC if it’s argued that it indicates measurement. Additionally, know the difference between express and implied claims; competitors can file false advertising claims if you make unsubstantiated statements in comparative advertisements.  

Advertising via influencer isn’t an easy way around false advertising claims, either. A brand is directly responsible for any claims – substantiated or not – they make on the brand’s behalf. Proper review and vetting of influencer content should be built into branded content campaigns. Additionally, one of the biggest lessons learned about influencer marketing is that material disclosures have to be clear, concise, and close to the branded content they’re creating in order to align with FTC standards. If consumers can’t tell that an influencer is #sponsored and posting an #ad, they’re likely to end up on the FTC’s watch list. In fact, the FTC just recently released instructions for how influencers should let people know about their relationships with brands.

Thanks to social media, the consumer landscape is evolving at a rapid pace and government regulators are working double time to keep up. Following FTC rules and staying abreast of any privacy regulations that could affect your campaigns are measures to take to make sure your advertising is in line as we move into the new year.

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