Advertising Law Institute 2013

Please plan to arrive with enough time to register before the conference begins. A networking breakfast will be available upon your arrival.

Day One: 9:00 a.m. - 4:45 p.m.

Morning Session: 9:00 a.m. - 12:30 p.m.

9:00 Welcome and Opening Remarks

Liisa M. Thomas

9:15 Federal Trade Commission and Advertising: Current Trends

An FTC veteran in the advertising space will address current concerns and trends the Commission is facing this year. From Internet affiliates to environmental claims, hear what the FTC has been focusing on so far in 2013, and learn what may be on their plate in 2014.

C. Steven Baker

10:15 Bon Appétit! Sinking Your Teeth Into Food Marketing Issues

In this session, we’ll look at some of the recent issues that have arisen within a class action context. Is it really “all natural”? What does “healthy” mean these days? We will cover practical, hands-on advice for companies who are vetting new advertising, and discuss steps companies can take if they find themselves faced with government investigations, class action lawsuits, and more.

• Hot topics and recent case law in food marketing
• Claim substantiation issues: Health-related claims in the crosshairs
• Managing risk and complying with government regulations

Allison Fitzpatrick

11:15 Networking Break

11:30 Advertising in the Green Space: Eco-Advertising in the Digital World

It is becoming increasingly important for consumers to learn more about the environmental sources of the products they purchase, and to understand the long-term impact these products will have on our society. Advertisers have picked up on this interest, and now, almost every sector of industry wants to communicate information about sustainability activities and other environmental concerns. The pitfalls that come with communicating this information are many, and this session will provide guidance on avoiding common traps and review current advertising rules governing environmental claims:

• Claims about sustainability, climate change and carbon emissions
• Product origins: Natural, organic, bio-based, or “free of” claims
• Energy efficiency and use of alternative energy claims
• Claims about packaging: Recyclable, degradable, source reduced or compostable claims
• When is a product “eco-safe”?
• FTC’s recent VOC guidance

Sheila A. Millar

12:30 Lunch

Afternoon Session: 1:30 p.m. - 4:45 p.m.

1:30 Let’s Make a Deal: Effectively Structuring Rebates, Coupons and Other Pricing Offers

The popularity of daily deal sites, extreme couponing, flash sales and other tactics for saving money continues to lure more and more consumers. And while no one expects to pay full price, pricing and price deals can often be the source of misleading advertising by companies, leading to fraudulent claims by consumers. In this session, learn:

• How to structure legal pricing claims in coupons, rebates, free offers and the like to protect from fraud claims
• How to combat consumer fraud and abuse of price-oriented offers

Brendan Healey

2:30 Marketing to Children: Everything YouWanted to Know but Were Afraid to Ask

Young audiences have a limited ability to know when advertising is being directed at them, and this can create a
range of issues for advertisers. Hear from a CARU representative and learn how to avoid common missteps.

This topic will cover:

• Guidelines for advertising to children
• Recent cases and trends at CARU
• Tips to keep problematic issues from cropping up in your advertising campaigns – from safety, sweepstakes, online privacy concerns and more

Andra Dallas

3:30 Networking Break

3:45 That’s Entertainment! Maximizing the Benefits of Branding

This presentation will address how businesses can minimize the risks and maximize the benefits associated with branded entertainment.

• How to make sure your branded entertainment efforts comply with the existing regulatory framework
• Product placement and media integration in movies and television: Learn key provisions and terms to consider when negotiating deals

Jordan Mitchell Heinz

4:45 Adjourn

Day Two: 9:00 a.m. - 4:15 p.m.

Morning Session: 9:00 a.m. - 12:30 p.m.

9:00 This Must Be Your Lucky Day: Promotions and Sweepstakes in the Digital Age

The Internet and social and mobile media make it easier than ever for companies to promote their products and services. But governing each digital sweepstakes or skill contest is a web of federal, state, and local laws. Promotion sponsors ask consumers to text, vote, click, comment, and follow. This session will cover the hot-button legal issues for
sweepstakes and contests in new media, including:

• When “calls to action” become “consideration” for purposes of the sweepstakes law
• When skill contests morph into a chance-based promotion
• How marketers publish proper disclosures given the limitations of two-inch screens or 140 characters

Nerissa Coyle McGinn

10:00 Fight for Your Cause: Special Issues in Cause-Related Marketing

Marketers have picked up on the consumer appeal of a cause, but did you know that encouraging someone to make a purchase in exchange for your company giving to a charity can give rise to filing and bonding requirements in certain states? At this presentation, learn about the special considerations
that come into play when advertisers are being charitable.

• Practical requirements and helpful tips for running a compliant cause-marketing campaign
• Considerations for entering into an agreement with your preferred charity
• What happens if things go wrong for the charity you select?
• Recent enforcement actions

Brian D. Fergemann

11:00 Networking Break

11:15 What’s New in Mobile, Online Behavioral Advertising and Tracking?

Mobile and OBA have gotten a lot of attention lately, and everyone from consumer protection groups, class action attorneys, state attorneys general, the FTC, Congress, the press, to consumers is watching to see what will happen next. During this presentation, you will learn about:

• Fundamental differences between regular tracking and OBA
• FTC expectations around consumer choice
• Self-regulatory programs that exist to help companies manage opt-outs
• Managing risks to help avoid class action lawsuits

Liisa M. Thomas

12:30 Lunch

Afternoon Session: 1:45 p.m. - 4:15 p.m.

1:45 Social Media and Infringement

Does social media facilitate infringement? Many social platforms permit companies and individuals to link to, post, and share content they do not own. Respected pundits claim much of this activity infringes third-party copyrights and other intellectual property rights. Do we really live under a legal regime that labels the majority of social media users as lawbreakers? How is the law evolving to keep up with social media? How are brands and agencies supposed to make sense of any of this? In this presentation, we will explore the legal and business risks that arise when companies use social media.

• Social media architecture: How do APIs and inline links work? Do they implicate the reproduction, display, performance and other exclusive rights of copyright owners?
• Permissions: What sharing is authorized by content owners (and social media platforms) – and what are the limits?
• “Side loading” and safe harbors: Does the DMCA protect platforms like Pinterest?
• Right of publicity: Are brands precluded from doing what everyone else can do with tweets and posts?
• Fair use revisited: Has the fair use analysis changed in the age of social media? Should it?

Brian G. Murphy

3:00 Networking Break

3:15 Ethics in Advertising Counseling

What do you do if your clients don’t listen to your advice? What happens when you need to tell a client “no” to an advertising program that they really want to do? Learn some of the ins and outs of these and other complex ethical issues, and how to handle them.

Alexis E. Payne

4:15 Adjourn