Posted on December 19, 2008 by Douglas J. Wood

2009 ANA Advertising Law & Business Affairs Conference

Please mark your calendars for the ANA's 2009 Advertising Law and Business Affairs Conference on March 10-11, 2009 at The Grand Hyatt New York @ Grand Central Station.

The theme of this year’s conference, as with this year’s Presidential election, is "change." We're putting together the most dynamic and exciting agenda for this conference to date. We have already confirmed the participation of former FTC Chairman Deborah Platt Majoras, who will be speaking on the future of FTC regulation, as well as other important past FTC and FCC officials, including: former FCC chief counsel Bob Corn-Revere, former director of the FTC’s Bureau of Consumer Protection Bill MacLeod and former deputy director of the Bureau of Consumer Protection Lee Peeler. In addition, many top legal experts from key advertisers and outside law firms will be covering cutting edge issues facing the ad community.

You can view the confirmed sessions, as well as register for the conference, at ana.net.

We're sure this will once again be the premiere conference for advertising law and business affairs professionals and encourage you to sign up now.

If you have any questions, please contact Doug Wood at 212-549-0377 or dwood@reedsmith.com or the ANA's Executive Vice President, Dan Jaffe at 202-296-2359 or djaffe@ana.net.

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Posted on December 11, 2008 by John P. Feldman

CARU Provides Toy Industry Guidance

The self-regulatory group that monitors advertising aimed at children has issued new guidelines designed to ensure that advertisers do not mislead children into believing stationary toys can move on their own.

"Toys that do not move on their own, or cannot perform certain movements on their own, should not be portrayed in advertising in a manner that will lead children to take away the net impression that the toys move on their own," stated a new guidance released by the Children's Advertising Review Unit (CARU).

CARU's new guidance on "Advertising Depicting Movement of Stationary Toys" further states that "[w]hen a doll or toy that cannot move on its own is depicted as moving, there should be a clear and conspicuous appearance of a hand [or hands] (or a person) manipulating the doll or toy...

"Methods that contribute to a misleading impression about a toy's abilities include the use of stop-action, quick cuts interspersed with animation, disguised or inconspicuous hand manipulation and other techniques," the guidance noted.

An example of an ad that would not comply with the guidance, according to CARU, would be a commercial for a stationary doll depicting several dolls dancing to music, which includes brief shots of fingers moving the dolls, but the fingers blend with the flesh colors of the dolls and are not noticeable during ordinary viewing. The commercial would not be brought into compliance by including a disclaimer at the end of the commercial stating that the dolls do not move on their own, CARU said.

Read CARU's press release on the guidance and view CARU's guidance at caru.org.  

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Posted on December 11, 2008 by John P. Feldman

Build-A-Bear Workshop Asked To Change Commercial

The Children's Advertising Review Unit (CARU) has recommended that the popular Build-A-Bear Workshop modify or discontinue price advertising claims, which the self-regulatory group says may confuse children.

CARU objected to a commercial, which the organization said it spotted through its own monitoring of advertising directed to children, that showed a child at a Build-A-Bear store choosing a stuffed monkey, clothing and accessories. The announcer stated, "You can make a new furry friend starting at $10 and continue the adventure at Buildabear.com." Though the bear initially appeared unclothed, and a large video disclosure stated that animals start at $10, the bear later was shown to be wearing a shirt, shorts, sunglasses and sneakers.

"CARU concluded that a child could reasonably believe that any fully clothed and accessorized animal would cost $10, although the monkey depicted cost $18 and outfitting the animal similar to the one depicted would cost approximately $40," the organization stated.

The advertiser noted that the commercial in question had run its course, but said it would consider CARU's concerns in future advertising.

Read about CARU's decision at caru.org. 

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Posted on December 11, 2008 by John P. Feldman

Online Socializing Beneficial for Teens

Good news for parents worried about all that time their teens spend online: It turns out that that time isn't a waste-and can be beneficial, according to a new study. The MacArthur Foundation-long known for its generous funding of public television-reports that young people pick up key skills by participating in digital media.

"It might surprise parents to learn that it is not a waste of time for their teens to hang out online," said Mizuko Ito, a University of California Irvin researcher who is the lead author of the MacArthur-backed report. "There are myths about kids spending time online-that it is dangerous or making them lazy. But we found that spending time online is essential for young people to pick up the social and technical skills they need to be competent in the digital age."

The MacArthur Foundation claims its report is the most extensive U.S. study on teens and their use of digital media to date. Ito's team spent three years interviewing more than 800 young people and their parents, and spent more than 5,000 hours observing teens interacting on social networking sites, video sharing and other sites. The study was supported by the foundation's $50-million digital media and learning initiative.

Read about the report at macfound.org. 

Read news coverage of the report at nytimes.com.  

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Posted on December 11, 2008 by John P. Feldman

Advertising Ban Would Reduce Obesity, Study Says

A ban on fast-food advertising in the United States could reduce the number of overweight children by as much as 18 percent, according to a study conducted for the National Bureau of Economic Research.

The study, funded by the National Institutes of Health, is being published in the University of Chicago's Journal of Law and Economics. Led by a professor from Lehigh University, researchers measured the number of hours of fast-food television advertising messages viewed by children on a weekly basis.

Lehigh University Professor Shin-Yi-Chou and her colleagues found that a ban on fast food advertisements during children's programming would reduce the number of overweight children aged 3-11 by 18 percent, and lower the number of overweight adolescents aged 12-18 by 14 percent.

Though the researchers concluded an advertising ban would be an effective method of reducing the number of overweight children, they also questioned whether such onerous government involvement and the costs of implementing such policies made an advertising ban a practical option in the United States.

Access information regarding the study at journals.uchicago.edu and lehigh.edu.

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Posted on December 11, 2008 by John P. Feldman

Child Obesity a Sign of Heart Disease

Children who are obese or who have high cholesterol also show early signs of heart disease, according to a new study. Results of the study were unveiled at a recent American Heart Association conference. The study, conducted by researchers from the University of Missouri Kansas City School of Medicine, has not yet been published.

The study was small, involving 70 children ages 6 to 19, and experts said the results would need to be replicated to be considered conclusive. But the researchers' method of measuring artery wall thickness, using ultrasound technology, is considered to be a reliable indicator of heart disease risk.

"I think this is a red flag," said the study's lead author, Dr. Geetha Raghuveer, a cardiologist and associate professor of pediatrics at the University of Missouri Kansas City School of Medicine. "These kids are more similar to middle-aged adults."

The study is considered by many to be part of a growing body of research that childhood obesity in the United States likely will result in increased incidents of heart disease as children age.
 
Read more about the study and surrounding issues at nytimes.com.

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Posted on December 11, 2008 by John P. Feldman

Age Verification Technology Enables Targeted Advertising

As regulators push website operators to adopt age verification technology to protect children from inappropriate content and social contact with adults, a new opportunity has arisen for advertisers.

Nancy Willard, who calls herself an expert on Internet safety, says age verification companies are using information gained from seeking to verify children's ages to target them with advertising. She points to California-based eGuardian, which solicits personal information concerning children from parents-including kids' birthdates, as well as their addresses, schools and genders. The company then offers schools the entire $29 sign-up fee collected from parents for every parent the school steers to the site.

The company's business plan is to solicit websites that are willing to pay a commission for each eGuardian member, which would allow them use the data collected to tailor their advertising. eGuardian Chief Executive Ron Zayas notes that parents are provided with the choice to opt out of having data shared with advertisers, and says the privacy concerns are a "tradeoff."

"When children go to Web sites today, they are already exposed to ads," Zayas said. "We make sure the ads are appropriate for children. We do not increase the volume of ads shown, nor do we ‘sell them out' in any way to advertisers."

Read more about the controversy at nytimes.com. 

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Posted on December 11, 2008 by Douglas J. Wood

Where in the World are Reed Smith Attorneys?

 

Where in the World Map

Reed Smith attorneys are frequently asked to speak at a wide range of conferences and events, often times taking them around the world.  To see where they have been and to download selected presentations, please click on the regions below:

 

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Posted on December 11, 2008 by Douglas J. Wood

Working with SAG, AFTRA, and AFofM - Union Updates

2009 Commercials Contract – Multi-Service Contract Requirements

Update on SAG/AFTRA Issues

Trust Agreements for SAG - Producers P&H Plans

The following documents constitute the Trust Agreements for the Screen Actors Guild-Producers Pension and Health Plans.

2009 SAG and AFTRA Negotiations

Understanding the GRP Model Webinar

Here is a copy of the presentation:  Understanding the GRP Model


Presentation at 2008 ANA Advertising Law & Business Affairs Conference

Booz Allen Hamilton Talent Compensation Reports

Seminars and Webinars on New Compensation Models for Actors in Television Commercials

  • Click here for the Media 101 handout.
  • Click here for the Talent 101 handout.
  • Click here to view the .PDF version of the presentation from the July 15 seminar.
  • Frequently Asked Questions from the seminar/webinar.

Courts and Arbitrations

Working With Celebrities

Canada (ACA, ICA, ACTRA)

Collective Bargaining Agreements

 

Continuation of 2006 Extension

Letter of August 6, 2008

Letter of August 22, 2008

 

SAG and AFTRA Television and Radio Commercials Contracts

Preparing for the Worst

2008 Negotiations


Writers Guild of America

2008 Agreement Summary


2006 Extensions SAG

SAG Executed TV Agreement

2006 Extension AFTRA

AFTRA Executed TV Agreement

AFTRA Executed Radio Agreement

2003 Contracts

Summaries

Waivers, etc.

 

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Posted on December 11, 2008 by John P. Feldman

School Nutrition Policies Push Sweets Out the Door

Between 500 and 600 U.S. school districts have instituted nutritional policies limiting foods deemed to be high in fat, salt and sugar. That's according to a research scientist at the Institute for Health Research and Policy at the University of Illinois at Chicago.

The widespread curbing of snacks in school has some kids pining for the old days.

"I know obesity is a big problem, and it's good the school cares," high school senior Sam Cardoza told The New York Times recently. "At the same time, you shouldn't stop a kid from buying a cookie."

California's nutrition standards limit snacks sold in schools during the day to those that contain no more than 35 percent sugar, and that derive no more than 35 percent of their calories from fat. Sodas will be banned from schools beginning next year. Regulations such as those being implemented in California have brought traditions such as school bake sales and birthday celebrations to a screeching halt.

"I don't think all celebrations need to be around food," said Ann Cooper, the director of nutrition services for the Berkley School District. "We need to get past the mentality of food used for punishment or praise."

The reduction in calories at school does not mean, as some feared, that kids would rush home and raid the fridge. According to the Rudd Center for Food Policy and Obesity at Yale, children do not compensate for the loss of sugar and fat-laden foods at school by increasing their intake of such goodies at home.

"People really do eat what's in front of them," explained center Deputy Director Marlene B. Schwartz.

Read more about the issue at nytimes.com.

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Posted on December 10, 2008 by Douglas J. Wood

Index - "Where in the World are Reed Smith Attorneys?" Presentations

United States

Boston, Massachusetts 

Honolulu, Hawaii 

New York, New York

Redwood City, California 

San Diego, California

Santa Monica, California

Washington, D.C.

South America

Buenos Aires, Argentina

Bogota, Columbia 

Asia/Pacific

Beijing, China 

Jeju, South Korea

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Posted on December 2, 2008 by Douglas J. Wood

Actress Charlize Theron Settles With Watchmaker

Actress Charlize Theron has settled a lawsuit brought against her by watchmaker Raymond Weil (RW) for breaching a contract to exclusively promote its watches. The terms of the settlement were undisclosed, but it came just more than a month after a federal judge in New York concluded that Theron had breached her agreement, and that Raymond Weil was entitled to prove to a jury that it sustained damages.

In 2005, Theron, who was named by Esquire Magazine as “The Sexiest Woman Alive,” signed an agreement to promote Raymond Weil’s “Shine” collection through advertising and by wearing the watches exclusively. However, during the contract term, she was photographed at a screening of a film produced by her production company wearing a Dior watch.

A photograph of Theron wearing the Dior watch made its way to Tourneau LLC, a major watch retailer and manufacturer, which published the photo in Tourneau Times, a publication the company distributes to high-spending customers. The caption under the photo read, “Charlize Theron wears Dior.”

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Posted on December 2, 2008 by Douglas J. Wood

Food Companies Try To Adopt Common Labeling Solution

In response to consumers’ desires to easily identify healthier food and beverage options, a number of major food and beverage producers have announced they are provisionally onboard with developing an industry-wide labeling program.

The Smart Choices Program is being launched under the auspices of The Keystone Center, a nonprofit Colorado-based organization that brings together public and private stakeholders to address social issues. Since the devil is in the details, the details surrounding the program’s implementation have not been settled, The Keystone Center warned in announcing the program’s rollout.

Nonetheless, companies that so far have stepped forward as “likely implementers” of the new labeling program include many of the industry’s heavy hitters: Coca-Cola (US), ConAgra Foods, General Mills, Kellogg Company (US), Kraft Foods, PepsiCo (US), Unilever (US) and Wal-Mart. In addition, Nestlé is in the process of reviewing the program to determine whether it will participate.

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Posted on December 2, 2008 by Douglas J. Wood

Direct Marketing Group Goes Green

The Direct Marketing Association is stepping up efforts to help its members move toward greener marketing practices. The DMA has introduced a “Green Marketing” program, which allows its professionals to earn a certificate in eco-responsible marketing. In addition, the DMA has developed an environmental resource center on its website.

The DMA’s Environmentally Responsible Marketing (ERM) program comprises an 11 course curriculum, which starts with a Dec. 1 online briefing. Courses will be held approximately every month. Topics include:

  • Building a long-term sustainable environmental policy or program
  • Understanding product and process life cycles
  • Green list & data management strategies
  • Sustainable design & production
  • Paper sourcing, certification, & labeling
  • Understanding & calculating the carbon footprint of a marketing campaign
  • International trends in green marketing

The DMA notes in its announcement concerning the program that a key goal to the program is to better meet customer expectations, in an attempt to stave off calls for do-not-mail legislation modeled after the federal do-not-call registry.

“Today, marketing strategies need to incorporate responsible environmental stewardship,” said Meta Brophy, who chairs DMA’s Committee on Environment and Social Responsibility, and serves as the director of publishing operations at Consumers Union. She said the DMA’s ERM program is believed to be “the first of its kind in the world of advertising and marketing.”

The faculty for the courses will be drawn from marketing and other professionals from a diverse group of companies and organizations, the DMA said.

In addition to its educational program, the DMA has established an Environmental Resource Center. The center includes a “Green 15 Toolkit,” which contains information and resources to help members understand and comply with the DMA’s Environmental Resolution, passed in May 2007. The latter calls upon members worldwide to implement and benchmark a set of 15 eco-friendly practices.

Why This Matters:  Consumers increasingly are seeking greener solutions to the volume of hardcopy marketing material they receive. The direct marketing industry is under pressure to better target potential customers or face the threat of legislation that limits the amount of direct mail they are allowed to send.

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Posted on December 2, 2008 by Douglas J. Wood

FTC Brings Action Against Online Payday Lenders

The U.S. Federal Trade Commission has brought a joint action with the state of Nevada charging 10 related Internet payday lenders and their participants with failing to disclose key loan terms, and using abusive and deceptive collection tactics.

The lenders, based primarily in the United Kingdom, used a series of websites such as www.cash2today4u.com, to promise consumers loans of as much as $500 within 24 hours, the FTC said. The loans were offered without requiring a credit check, proof of income or documentation, the agency said. However, consumers were required to provide their bank account information and social security numbers.

Applicants were told their loan had to be repaid by their next payday, along with fees that ranged from $35 to $80. If the loan was not repaid, it automatically would be extended and an extra fee would be debited from the consumer’s bank account. Consumers were required to provide access to their bank accounts for payment of the fees.

In a complaint filed in the U.S. District Court for the District of Nevada, the FTC alleged that the defendants did not disclose key terms in writing, including the annual percentage rate, the payment schedule, the amount financed, the total number of payments, and late payment fees. Consumers who asked to see the loan terms in writing either were told the transaction was oral, or were told the terms would be sent to them but they never received the requested information.

The FTC said many consumers paid hundreds of dollars above their loan amounts before cutting off access to their bank accounts. The defendants threatened consumers with arrest, lawsuits, property seizure and wage garnishment, the agency said. They called consumers, as well as their coworkers and employers at their workplace; used abusive language; and disclosed the consumers’ purported debts.

The loans extended did not comply with the payday lending laws in many consumer states, and the defendants were not licensed to make consumer loans in those states, the FTC said. The defendants are charged with violating the Truth in Lending Act, using unfair and deceptive tactics under the FTC Act, and other charges.

Why This Matters:  Amid the current economic crisis, regulators are likely to scrutinize lending practices and the marketing practices used by lenders.

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Posted on December 2, 2008 by Marilyn Colaninno

Today's Hot Topic - Supers

Often clients will ask what the networks' requirements are for supers. 

The networks' production guidelines for supers are as follows:

Visual disclaimers:

1.  Must be clearly legible against a contrasting background and appropriately drop-shaded.
2.  Must be at least 22 scan lines, with letters, words, and lines spaced so as to be easily read.
3.  Must be three seconds for the first line plus one second for each additional line.

The use of supers or visual disclaimers in commercials is very common.  Often they provide the viewing audience with important information.  Supers can vary from "Use as directed" in commercials for over-the-counter medications to "Professional driver on a closed course.  Do not attempt" in car commercials.  Certain categories, such as commercials for contests and sweepstakes, also have specific requirements regarding supers. 

Supers are often used to qualify claims that are being made in the commercial.  In some cases, the inclusion of a super can make the difference between a commercial that is not approved and one that is approved.  

This is why it is so important that supers be readable.  Clients should make every effort to be sure the supers that appear in commercials are easy to read.  Production techniques, such as the use of white lettering on a light background, should be avoided. 

There are times when clients send me commercials with supers that are difficult to read, and ask me if I think the editors at the networks will be able to read them.  In these instances I usually encourage clients to use their own judgment by asking the question, "Can you read the supers?"  If the client is unable to read the supers, chances are the editors will be unable to read them; and if the editors are unable to read them, they will not approve the commercial.  So, if you are concerned that the editors will have a difficult time reading the supers, chances are they will.

It's important to remind clients, when clearing commercials with the networks, to make sure that all supers comply with the networks' production guidelines. 

Marilyn Colaninno is Director of Rights and Clearances for Reed Smith and is responsible for clearing commercials for the firm's many clients in the advertising industry. If you have specific questions relating to network clearance, feel free to contact Marilyn directly at +1 212 549 0347 or by e-mail at mcolaninno@reedsmith.com.

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Posted on December 2, 2008 by John L. Hines, Jr.

Move Over Dot Coms - Get Ready to Dot Your Brand!

The Internet as we know it is changing dramatically. Instead of using domain names ending in “.com”—the most popular of the “top level domains” or “TLDs”—organizations located anywhere in the world may soon be able to purchase a TLD that corresponds to just about any word or phrase, including an organization’s name or brand.

What Will All of This Mean to Your Business?

Consider these examples:

  • A financial services trade association might try to buy the domain “ ?? .bank” with the idea of servicing a financial community and selling second-level domains (the name to the left of the “dot”) to eligible financial institutions. A financial services company may then decide to purchase and do business from “firstnational.bank”.
  • On the other hand, First National might simply buy the TLD domain corresponding to its brand:  “.firstnational”. John Smith, a trust officer, might then be located at jsmith@trusts.firstnational; Susan Jones, mortgage banker, might be located at sjones@mortgage.firstnational, and so on.
  • A consumer goods company might consider a TLD corresponding to its brand as an opportunity to create customer confidence in the shopping experience—a kind of web authentication that distinguishes the company’s site from the many other sites and general “noise” and “static” on the web. Thus, a powerful retail clothing brand might buy the corresponding domain—and organize second-level domains according to categories such as “menswear,” “shoes,” “coats,” etc.
  • On the other hand, a company might use its valuable brand in the form of a TLD to reward its valued suppliers with the opportunity to use the TLD brand extension with the second-level domain. A global fast food chain (call it “goodchicken”) might allow its approved contractors to use “supplier.goodchicken”.

Given the hierarchical structure of the domain name system generally, there are a variety of ways in which the new TLDs might facilitate unique business/organizational objectives, while potentially enhancing the customer experience and increasing brand loyalty and awareness.

Currently, the domain name system is limited to 21 “generic” TLDs (.com, .org, .net, .info, .biz, etc.) and about 240 “country code” domains (e.g., .us, .uk, .fr, etc.). According to Paul Twomey, President and CEO of the International Corporation for Assigned Names and Numbers (“ICANN”)—the international not-for-profit organization responsible for coordinating the Internet addressing system—the expansion of the generic top-level domain space is “driven by the demand for more innovation, choice and change to the Internet’s addressing system…[and] has the potential to be one of the biggest influences on the future of the Internet.” Others disagree about the potential impact—at least as the initiative applies to existing businesses—and see little reason to spend the money for another top level domain other than, perhaps, very reluctantly as a defensive measure to keep others out of their space. Some in this camp resent the introduction of the new TLDs as creating complexities and costs that far outweigh any benefits.

Click here to read the full alert.

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Posted on December 2, 2008 by John P. Feldman

Testimonials and Endorsements: Complying with the FTC Guides in Light of Proposed Changes

This post was written by John P. Feldman and Anthony E. DiResta.

One of the most frequent strategies employed by advertisers is to let the consumer hear about the advertised product or service from a third party, someone other than the advertiser itself. At its root, an endorsement or testimonial when used in advertising is the advertiser’s way of saying, “Don’t just take my word for how wonderful my product or service is, listen to this unbiased person whose opinion you should rely upon to make a purchasing decision.” The Federal Trade Commission (FTC or Commission) originally published Guides Concerning the Use of Endorsement and Testimonials in Advertising (The Guides) in 1972. The Guides have not been updated since 1980. In January, 2007, the FTC sought comments on proposed modifications and updates to the Guides. In particular, the Commission sought comments on whether so-called “disclaimers of typicality,” statements like “Results not typical” or “Your results may vary,” should continue to be a valid way to communicate that a testimonial does not represent experiences consumers will generally achieve with the advertised product or service.

Click here to view the alert.

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Posted on December 2, 2008 by Gregor Pryor

ASA Report on Green Advertising

The UK Advertising and Standards Agency (ASA) has recently published a report in response to an increase in consumer complaints regarding misleading environmental claims in advertisements. Companies and advertising agencies have been accused of "green washing" advertisements - making environmental claims that are less about saving the planet and more about exploiting consumer concerns. Particularly open to challenge are claims about CO2 emission and phrases such as carbon "neutral," "zero" and "negative," and claims about energy sources. A number of companies have recently fallen afoul of the ASA adjudication process by making misleading claims, including Shell Oil, British Gas, Lexus and Ryanair.

One of the biggest problems faced by advertisers is that the definition of "green" is always changing and scientific research can be open to interpretation. Advertisers are further hindered by unclear ASA and Committees of Advertising Practice (CAP) guidance on the subject. The report suggests that both advertisers and the ASA often lack the technical expertise to effectively vet environmental claims.

The ASA Director General has said that the ASA needs to:

1) Ensure that ASA/CAP staff expertise is up-to-date and comprehensive in order to evaluate environmental claims effectively.
2) Ensure the advertising code review process responds to the views of consumers and companies.
3) Investigate whether the CAP guidelines could be more explicit, even if this means that guidelines would need to be fluid because of the fast-evolving nature of science and technology in this sector.
4) Work with advertising agencies and companies alike to bolster technical understanding of issues and existing rules on environmental claims.

To avoid falling afoul of the ASA, and to avoid the costs and negative publicity associated with a negative adjudication, companies and advertisers must be certain when producing and clearing advertisements that environmental claims are accurate and can be clearly justified.

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