Advertising, Marketing & Promotions

How many advertising, marketing and promotion channels do you use to reach customers and prospects? Traditional print and broadcast media? Telemarketing? Commercial e-mail? Fax advertising? Contests and sweepstakes?

At a minimum any company that creates advertising materials should know how the Federal Trade Commission and the National Advertising Division of the Council of Better Business Bureaus regulate its industry. Companies should be aware that, for the FTC, "advertising" means more than traditional broadcast and print communications. It includes infomercials, product packaging, statements in product manuals, and in-store and online promotions.  Companies should also be familiar with the Lanham Act's prohibitions on false advertising.

Companies should also know that special federal and state laws apply to e-commerce and telemarketing campaigns. New legislative and regulatory initiatives arise every day, addressing the privacy, security, and identity risks that can accompany electronic campaigns.

Compliance is a challenge for any company with a marketing- and advertising-intensive business model. The costs of failure are high, including class action lawsuits, state and federal investigations, and negative media coverage.

When developing marketing and advertising plans, companies should consider the following:

• Does the advertisement include statements the FTC or the National Advertising Division of the Council of Better Business Bureaus may consider "false or deceptive" to consumers? What types of claim substantiation do we need? Does the ad raise special concerns because it includes customer or professional endorsements? Or uses the word "free"? Do we need to include a disclaimer?
• With respect to e-mail campaigns, will the messages run afoul of the CAN-SPAM Act? Will they bring the recipient to Web sites that are using online tracking technologies like “Web beacons," "cookies," and related technologies that may raise legal privacy concerns? And are we using the optimal technologies to measure site performance, track user behavior, and improve marketing and sales to end-users?
• Will the campaign use faxes, autodialers, recorded messages, and telephones? If so, will we be complying with the federal Telephone Consumer Protection Act and the FTC's Telemarketing Sales Rule? Will we be restricted from directly calling or contacting customers or potential customers, such as when they are on a federal or state Do Not Call list?
• Do the rules specific to regulated industries (such as the Federal Communications Commission's rules on use of Customer Proprietary Network Information by telecom companies) apply?
• Are we considering promotional contests and sweepstakes, which present special risks? Gambling, lottery and consumer protection laws heavily regulate them. Some of those laws provide both criminal and civil penalties.
• In all of these areas, are we aware of state laws, which may be more restrictive than federal laws? Are we following best practices?

Perkins Coie offers products and services to help clients navigate these turbulent and changing legal seas.