Advertising Law 101: Influencers, marketing to children, promotions, loyalty programs and Ethics

Kristi Wolff | Partner, Kelley Drye & Warren LLP

Kristi focuses her practice on food, dietary supplements, personal care products, and is the chair of the firm’s cannabis law practice group. She has extensive experience advising clients whose products are within the overlapping jurisdictions of the Food and Drug Administration (FDA) and the Federal Trade Commission (FTC). Kristi handles matters that span the complete product lifecycle, including concept analysis, claim substantiation, label review, quality and recall scenarios, and contested matters involving the FTC, FDA, National Advertising Division (NAD), state attorneys general and class action litigation.

In addition, she regularly counsels clients on issues pertaining to direct-selling compliance, and works with several lifestyle brands in the apparel, jewelry and fur industries. Notably, Kristi also advises on all areas of country of origin marketing and advertising claims, such as “Made in U.S.A.”

Gonzalo Mon | Partner, Kelley Drye & Warren LLP

Gonzalo E. Mon is a partner in Kelley Drye & Warren’s Advertising Law practice group. Gonzalo helps clients determine what claims they can make, as well as what level of substantiation is required to support those claims. He defends clients when they are challenged by regulators, consumers, and competitors, and he helps clients challenge their competitors in court and before the NAD. Much of Gonzalo’s practice involves helping clients navigate through complex legal issues on social media that implicate a combination of advertising, intellectual property, and privacy laws.

Gonzalo also helps clients draft and negotiate the agreements that underlie many of their marketing campaigns. For example, he frequently works on agency agreements, sponsorship agreements, and endorsement agreements with celebrities, athletes, and musicians.

Tsan Abrahamson | Cobalt LLP

Tsan’s practice focuses on strategic counseling in the areas of social media, sweepstakes, intellectual property, advertising, trademark clearance, trademark and copyright prosecution, licensing, and other business transactions. She also manages the adverse proceedings practice at the U.S. Patent and Trademark Office Trademark Trial and Appeal Board.

Tsan has an extensive practice in the area of marketing promotions, including social media promotions, such as on Facebook and Twitter, gift card and gift certificate marketing, print and online sweepstakes, contests, give-aways, warranties, rebates, and coupon promotions. She also advises on corresponding privacy issues related thereto.

Tsan’s advertising practice includes working with regulatory agencies to comply with federal guidelines, including new FTC guidelines regarding affiliate marketing, CAN-SPAM and the Deceptive Mail Prevention and Enforcement Act. She also advises on ad campaigns, including script review, storyboard clearance, and network media placement. Tsan also has special expertise in children’s marketing issues, including promotions and claim substantiation, COPPA compliance, and advertising to children in print and television media. She has been a SuperLawyer and is in Who’s Who Legal for her expertise in Internet and E-commerce matters. She was inducted into the American Law Institute in 2007.

In addition to her advertising and promotions work, Tsan has successfully prosecuted and defended thousands of trademarks with the U.S. Patent and Trademark Office and internationally, including difficult sound and sensory marks and design marks. She has registered hundreds of copyrights at the U.S. Copyright Office and overseas. Tsan’s professional affiliations include the International Trademark Association, the Brand Activation Association, and the American Bar Association. She is an adjunct professor of law at USF School of Law.

Prior to Cobalt LLP, Tsan was worldwide intellectual property and licensing counsel for LeapFrog Enterprises, Inc., She also practiced for 7 years with the San Francisco firm of Cooley Godward Kronish (formerly Cooley Godward), where she represented video game makers, online auction houses, pharmaceutical companies, and numerous other large companies. Tsan also spent 8 years as a chef. Tsan’s professional affiliations include The American Law Institute, the International Trademark Association (INTA), The American Bar Association, the Promotions Marketing Association, the Mobile Marketing Association, The Fellows of the American Bar Foundation, the American Intellectual Property Law Association, the Dartmouth Lawyers’ Association, and the Children’s Advertising Review Unit. Locally, she is a member of the Bar Association of San Francisco, Alameda County Bar Association and the Berkeley-Albany Bar Association. She is on the board of trustees for the Developmental Studies Center.

Tsan has been an adjunct professor at USF Law School where she teaches upper division seminars. She also speaks publicly in the areas of children’s marketing, advertising, trademarks, and internet matters. Tsan completed her undergraduate work at Dartmouth College, and received both her JD and MBA from the UCLA School of Law and The Anderson Graduate School of Management, respectively. She is recognized by Strathmore’s Who’s Who for leadership and achievement in the law, and has been selected as a California Super Lawyer. Tsan has also been a featured lecturer with ALI-ABA, AIPLA, the Promotions Marketing Association, and the American Bar Association. When she’s not in the office, she’s carving telemark turns and searching for good wine, not always in that order.

Nerissa Coyle McGinn | Loeb & Loeb LLP

Nerissa Coyle McGinn’s practice focuses on matters involving the convergence of advertising and promotions, emerging media, technology, privacy, and intellectual property law. She has experience advising on matters involving the Children’s Online Privacy Protection Act (COPPA) and the Children’s Advertising Review Unit (CARU).

Nerissa works with many of the best-known brands in the country, including H&R Block and the Wm. Wrigley Jr. Co. and its confection brands. Embracing a business-minded approach, she helps clients develop new brand assets and assists them in promoting and advertising their brands and products.

Clients — including Turner Broadcasting and its programming properties, for which she handles trademark clearances for new shows, web properties, interstitials, and sweepstakes — regularly turn to Nerissa for trademark counselling services.
In the advertising and promotions facet of her practice, she works with clients on sweepstakes review, copy review, and promotion design and fulfilment, with an emphasis on internet and interactive advertising and promotions.

Her diverse roster of clients includes advertising agencies, large corporations, and professional sports teams including the New York Giants, the Chicago Bulls and the Detroit Red Wings. Nerissa serves as the firm’s first chief diversity partner and co-chair of the Diversity Committee.

John Ferry | Baker Hostetler

John Ferry is an associate at Baker Hostetler and part of its Advertising, Marketing, and Digital Media team, sitting in the Washington, D.C. office. He counsels clients on loyalty programs and other advertising issues on a daily basis and represents them before the National Advertising Division, the Federal Trade Commission, and state Attorneys General offices, as well as in federal court.

Linda A. Goldstein | Partner, Baker Hostetler

Co-leader of BakerHostetler’s Advertising, Marketing and Digital Media team, Linda Goldstein is widely recognized as one of the leading advertising lawyers in the country. She regularly provides advertising counsel and regulatory advice to leading Fortune 500 and Fortune 100 companies in many different product and service categories, including telecommunications, wireless, retailing, publishing, entertainment, digital media, gaming, food and beverage, and financial services. She represents clients in investigative and enforcement proceedings brought by the Federal Trade Commission, state attorneys general, district attorneys, and other federal and state agencies with jurisdiction over advertising and marketing practices, and she has handled some of the highest-profile matters, setting industry precedents. Immersed in all aspects of the digital media ecosystem, Linda spends much of her time advising clients on how to minimize the legal risks associated with mobile marketing, e-retail, online communities, social influencers, native advertising, email and telemarketing, sweepstakes and contests, fantasy sports leagues, and casual gaming.

Linda also handles all transactional matters relating to the dissemination of advertising campaigns, including sponsorship agreements, agency-client agreements, talent and music agreements, and production agreements. As a result of her breadth of knowledge and extensive experience, as well as her grasp of the legal climate, Linda is regularly called upon by national, business and trade publications to share her knowledge of the advertising and marketing industry.

Linda’s commentary has appeared in The New York Times, The Wall Street Journal, CNBC, NBC’s TODAY Show, Advertising Age, Electronic Retailer Magazine, and the National Law Journal. Linda is a regular participant at prominent business and legal conferences throughout the country, including the Brand Activation Association, International Trademark Association, Performance Driven Marketing Institute, Personal Care Products Council and American Conference Institute.

Randal Shaheen | Baker Hostetler

Randy Shaheen has more than 30 years of experience as an advertising attorney. A member of Baker Hostetler’s Advertising, Marketing and Digital Media team, he represents clients before a variety of regulatory agencies, including the Federal Trade Commission (FTC), Consumer Financial Protection Bureau (CFPB), National Advertising Division (NAD) and state attorneys general, and he is sought after for his handling of multijurisdictional matters.

Randy’s background facilitates practical insight: He has a significant history with matters related to privacy and data security, marketing to children, “green” claims, dietary supplements, claims of weight loss and health and performance, comparative claims, the use of surveys and “Made in the USA” claims.

Session I – Fundamentals of Advertising Law | 10:00am – 10:45am
1. Claim substantiation – The various ways that claims can be substantiated, and specific considerations related to health benefit claims | 10:00am – 10:10am
2. Disclosures – When are they necessary and how must they be presented | 10:10am – 10:20am
3. Customer Reviews + Influencers – Key considerations to avoid misleading the consumer | 10:20am – 10:30am
4. Enforcement examples as to each topic | 10:30am – 10:45am

Session II – Let’s Get Them Talking: Legal Issues with Influencers and Reviews | 10:45am – 11:55am
1. The legal requirements regarding soliciting reviews and working with influencers | 10:45am – 11:00am

Break | 11:00am – 11:10am

2. How to manage campaigns | 11:10am – 11:25am
3. How companies can make claims based on reviews | 11:25am – 11:40am
4. Tips for staying out of trouble | 11:40am – 11:55am

Session III – Marketing to Children: It’s No Child’s Play | 11:55am – 12:50pm
1. Overview of Applicable Laws, Rules, and Industry Best Practices | 11:55am – 12:10pm

Break | 12:10pm – 12:20pm

2. Product Claims and Demonstrations | 12:20pm – 12:35pm
3. Privacy Concerns when Marketing to Children | 12:35pm – 12:50pm

Session IV – Promotions 101: Know the rules before you play the promotions game! | 12:50pm – 2:00pm
1. The sweepstakes regulatory framework | 12:50pm – 1:10pm

a. The elements of lotteries, sweepstakes, and games of chance – and why it matters
b. Alternative methods of entry – what they are and why you might need them
c. Federal laws and regulations
d. State laws – just about all states have laws governing sweepstakes and promotions
e. Tax considerations
f. International campaigns

2. Promotions and programs for specific groups and demographics (children, POC) | 1:10pm – 1:20pm

Break | 1:20pm – 1:30pm

3. Running promotions on social media and other digital platforms | 1:30pm – 1:40pm

a. Risk and benefits of running contests on social media
b. Platform rules and requirements
c. Text message programs – challenges and pitfalls

4. Using celebrities and influencers in promotions – endorsements and testimonials | 1:40pm – 1:50pm
5. Consumer privacy issues related to promotions | 1:50pm – 2:00pm

Session V – Loyalty programs | 2:00pm – 3:00pm
1. Overview | 2:00pm – 2:10pm
2. Drafting Terms | 2:10pm – 2:20pm
3. Enforcement | 2:20pm – 2:30pm

Break | 2:30pm – 2:40pm

4. Modifying an Ongoing Program | 2:40pm – 2:44pm
5. Promotion Considerations for Loyalty Programs | 2:44pm – 2:48pm
6. FTC Endorsement Guides | 2:48pm – 2:52pm
7. CAN-SPAM and TCPA | 2:52pm – 2:56pm
8. CCPA | 2:56 – 3:00pm

Session VI – Claim Substantiation and Comparative Advertising | 3:00pm – 4:00pm
1. The Basics of Claim Substantiation | 3:00pm – 3:10pm
2. Identifyin Product Claims | 3:10pm – 3:20pm
3. How to properly substantiate Claims | 3:20pm – 3:30pm
4. Comparative Advertising Claims | 3:30pm – 3:40pm

Break | 3:40pm – 3:50pm

5. Recent FTC/NAD Developments/trend | 3:50pm – 4:00pm

Session VII – Ethical considerations | 4:00pm – 5:10pm
1. Ethical Considerations When Advertising on Social Media | 4:00pm – 4:20pm
2. When Does the Use of Social Media Constitutes the Practice of Law | 4:20pm – 4:30pm
3. Use of Social Media by Judges | 4:30pm – 4:40pm
4. Rules Regarding Access to the Other Side’s Social Media | 4:40pm – 4:50pm

Break | 4:50pm – 5:00pm

5. The Use of Social Media for Jury Vetting | 5:00pm – 5:10pm