On September 24th and 25th, the National Advertising Division (NAD) held its annual conference, titled “What’s New in Comparative Advertising, Claim Support, and Self-Regulation,” in New York City. Federal Trade Commission (FTC) and NAD officials, including Jon Leibowitz (Commissioner, FTC), Lesley Fair (Senior Attorney, Division of Advertising Practices, FTC), Mary Engle (Associate Director, FTC), Andrea Levine (Director, NAD), and Bruce Hopewell (Director, National Advertising Review Board), provided insight into current advertising topics.

Lesley Fair focused on issues that will likely be on the FTC’s radar in the upcoming years, identifying areas such as: (1) deceptive health claims, especially weight loss products; (2) marketing directed to children, particularly in the context of childhood obesity; (3) review of the FTC Endorsement Guides; (4) continued interest in mortgage and debt-related practices; (5) consumer privacy and data security; and (6) “green” claims (i.e., use of terms like “biodegradable,” “recyclable/recycled,” “refillable,” “ozone safe,” “ozone friendly,” “environmentally safe,” and “environmentally friendly”). With the holiday season approaching, Ms. Fair also emphasized the importance for retailers to print clear disclosures about any limitations on the use of gift cards on the cards themselves.

The conference also examined unique issues raised by advertising on the Internet, including guidance for advertising via blogs and the protection of children’s privacy online. For example, consumers receiving compensation from a company or advertising agency to promote the company’s products or services through blog postings need to disclose that relationship. If companies want to create blogs about their products and services directly, they should provide guidelines to their employees detailing how to comply with applicable laws and corporate policies. Such companies should also monitor blog postings on a periodic basis. With respect to children’s privacy, conference speakers called attention to the obligation of companies to comply with the Children’s Online Privacy Protection Act in connection with online marketing targeted to children under the age of 13. Further emphasis was placed on the responsibility of advertisers to ensure that disclosures made in children’s advertising are prominent and understandable to the child audience.

Another topic discussed at the conference was the increase in number of class action lawsuits based on false advertising claims. Traditionally, such claims have been brought by the FTC, through the NAD self-regulatory process, or under the Lanham Act. Companies are now finding themselves the target of class action lawsuits as well. These suits are often triggered by agency enforcement proceedings, news stories, and adverse consumer reports ratings.

In general, the conference served as a reminder to advertisers that thought must be given to established advertising principles even when developing marketing campaigns in new and non-traditional media.

For more information, please contact:

Amy M. Swift
swift.amy@arentfox.com
202.857.6338

Halle Markus
markus.halle@arentfox.com
202.857.6113