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NY Times:  Code That Tracks Users’ Browsing Prompts Lawsuits

Sandra Person Burns used to love browsing and shopping online. Until she realized she was being tracked by software on her computer that she thought she had erased.

Ms. Person Burns, 67, a retired health care executive who lives in Jackson, Miss., said she is wary of online shopping: “Instead of going to Amazon, I’m going to the local bookstore.”

Adweek:  Do TV Spots Work in Web Video?

The answer is yes, but online-specific creative also has its place

A common knock on the Web video industry is that it needs to move beyond repurposed TV spots, often shown as pre-rolls before content begins.

But new research from Dynamic Logic finds that such units perform just as well as video ads created specifically for the medium when it comes to several brand attributes.

FTC.gov:  FTC and International Privacy Enforcement Authorities Launch Global Privacy Cooperation Network and Website

New Network Will Enhance Enforcement, Help to Protect Consumers’ Privacy

The Federal Trade Commission and privacy enforcement authorities from 11 countries around the world recently launched the Global Privacy Enforcement Network (GPEN), a new network that promotes information sharing and international assistance in enforcement of privacy laws. Today the network unveiled GPEN’s public website, www.privacyenforcement.net. The new website is designed to promote public awareness of the network.

BNA:  FTC's Proposed Rule Would Bar Deceptive Mortgage Advertisements

A proposed rule to prohibit all material misrepresentations in consumer mortgage advertising would “further strengthen” the Federal Trade Commission's “longstanding enforcement program aimed at preventing deceptive mortgage advertising,” according to a Sept. 22 statement by the agency.

Medical Devices Today:  Device Center Increases Advertising/Promotion Enforcement Staff

FDA's device center will increase its focus on advertising and promotion enforcement efforts, as well as policy development, with recently expanded staff resources.

Last month, CDRH's Office of Compliance increased the size of its device advertising and promotion policy group from one person to three, FDA Regulatory Counsel Deborah Wolf reported Sept. 20 at the Food and Drug Law Institute's Advertising and Promotion Conference in Washington, D.C.

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In one of the first in-depth and formative talks delivered on the FTC's recently proposed revisions to its Green Guides, John Feldman of Reed Smith joined forces with Keith Scarborough, Senior Vice President of Government Relations at the Association of National Advertisers, to deliver a teleseminar yesterday (Tuesday, October 12th, 2010) that was widely attended by both attorneys and industry players alike. You can access the teleseminar materials here. The FTC has requested public feedback on its revisions through December 10th, 2010.

If you have questions regarding the Green Guides or wish to explore how the revisions may impact your business, please contact either John Feldman or Adam Snukal.

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If you sign up for only one teleseminar on the FTC's proposed revisions to its Green Guides, make it this one:

Green Marketing: Can the FTC's Green Guides Bring Consumer Perception of Environmental Claims into Focus?

On Wednesday, October 6, the Federal Trade Commission issued its long awaited proposed revisions to its Green Guides. This notice seeks to bring clarity to an array of existing and new environmental marketing terms, like "renewable energy" and proposes ways in which consumers reasonably understand terms, seals, and certifications. The Commission is going to be seeking input from the public and there will be many areas that are sure to impact any marketer who engages in "green" marketing. This is a must attend teleseminar for any executive involved in creating materials promoting green initiatives.

John Feldman is a partner in the D.C. office of Reed Smith in the Advertising Technology & Media Industry Group. John devotes a substantial portion of his practice to providing advice to advertisers on regulatory issues, including environmental claims, behavioral marketing, privacy, sweepstakes, rebates, coupons, and advertising substantiation. John also handles contested advertising matters before regulatory bodies and between competitors, with a particular emphasis on advertising cases before the National Advertising Division of the Council of Better Business Bureaus (NAD).

Keith Scarborough is the Senior Vice President of Government Relations at the Association of National Advertisers (ANA). 

Click here to register by Monday, October 11!

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Although somewhat outside our traditional scope, I came across an excellent PowerPoint that our colleague, Christopher Walina, presented to Council of Chief Privacy Officers in New York yesterday. We all deal with privacy issues in the workplace, and these materials will hopefully provide our readership with a contemporary and comprehensive state of the law summary.

Enjoy...

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In what was the next of the Federal Trade Commission’s (“FTC”) pillar documents to undergo an overhaul, the FTC yesterday disclosed its proposed revisions to its Guides for the Use of Environmental Marketing Claims (the “Green Guides”). The Green Guides (16 C.F.R. Part 260) set forth the FTC’s position on permissible environmental claims in advertising. The Green Guides were first issued in 1992 and then revised in 1996 and 1998. The proposed revisions have been released for public comments through December 10, 2010, at which time the FTC will decide on those changes that make the final cut. 

The FTC has communicated that its goal in releasing the Green Guides’ revisions is to provide marketers with guidance in helping them avoid making misleading environmental claims, and also to update the guides and make them easier for companies to understand and use. According to FTC Chairman, Jon Leibowitz: "In recent years, businesses have increasingly used 'green' marketing to capture consumers' attention and move Americans toward a more environmentally friendly future. But what companies think green claims mean and what consumers really understand are sometimes two different things. The proposed updates to the Green Guides will help businesses better align their product claims with consumer expectations." Let’s see…

Adhering to many of the same trends and areas of focus upon which the FTC undertook its revision of the endorsement and testimonial guidelines last year, the FTC has sought to curb unqualified general environmental benefits that are nearly impossible to substantiate, to limit claims as much as possible to those benefits actually realized by consumers, and to ensure advertisers make their disclosures clearly and prominently.

Areas of environmental advertising and marketing taken up within the Green Guides by the FTC include:

• Certifications and Seals: Third-party certification does not eliminate an advertiser’s need to have substantiation for all claims, and the FTC considers both certifications and seals to be endorsements, and therefore, subject to the FTC’s Endorsement Guidelines;
• Compostable: An advertiser may not describe a product as “compostable” unless it can substantiate that all of the materials comprising such product will break down into, or otherwise become a part of, usable compost in approximately the same time as the other material with which it is composted;
• Recyclable: Advertisers may only assert an unqualified “recyclable” claim if a “substantial majority” of consumers have access to recycling facilities. Otherwise, advertisers shall be required to qualify a “recyclable” claim depending on whether a “significant percentage” have or lack access to recycling facilities;
• Degradable: An advertiser should only qualify a product as being “degradable” if it can substantiate that the entire product or product packaging will completely break down and return to nature within one year of customary disposal practices. Accordingly, advertisers should not make unqualified “degradable” claims for items likely destined for landfills, incinerators or recycling facilities.

Among a number of hot-button issues which the FTC took up, a great deal of discussion centers on the issue of an advertiser’s use of the word “free” in its advertising and marketing materials. The FTC has proposed that advertisers may not employ the expression “free” to describe the absence of a substance if: (i) the item has substances that pose the same or similar environmental risks as the mentioned substance, or (ii) the substance has never been associated with the product category. Interestingly, the FTC recognized that use of the term “free” may convey (intentionally or not) additional environmental claims such as superiority over other products, and these claims will also require substantiation.

Some of the new areas taken up by the FTC in its proposed revisions include claims that products are manufactured using (i) renewable materials, (ii) renewable energy and (iii) carbon offsets. Of interest however, is the fact the FTC chose not to address use of the terms “sustainable,” “natural” or “organic.”

We intend to issue a more detailed client alert on the proposed revisions to the Green Guides in the coming days, so stay tuned. As always, if you have any questions or concerns regarding the FTC’s announcement and the proposed revisions, please feel free to contact Doug Wood, John Feldman or Adam Snukal.

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Ice Cream maker BEN & JERRY'S confirmed that after receiving a request from the Center for Science in the Public Interest (CSWPI) all BEN & JERRY'S Ice Cream labels will no longer include the phrase "all natural" . The change, according to company spokerpersons, will occur gradually, over time.

The Food & Drug Administration (FDA) itself provides no definition for "natural", a complaint of the CSWPI. The FDA allows use of the term as long as a food product does not contain either artificial flavors or colors, or synthetics. The CPSWPI asked BEN & JERRY'S to remove the term because CSWPI believes the term creates consumer confursion if a product contains alkalized cocoa, corn syrup, hydrogenated oil or other non-natural ingredients.

BEN & JERRY'S spokespersons asserted there would be no change of its ice cream products' ingredients but wants to avoid disputes and possible misperceptions over the term "all natural" which is ambiguous enough to mean different things to various of its customers.

CSWPI called upon the FDA to prepare and issue a formal definition of "natural" for businesses to follow.

BEN & JERRY'S is currently a unit of the consumer product giant Unilever.

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A group of the nation's largest media and marketing trade associations, with support from the Council of Better Business Bureaus, today announced the details of a self-regulatory program that will give consumers enhanced control over the collection and use of data regarding their Web viewing for online behavioral advertising purposes.

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This post was written by Dan Jaffe.

We have been informed by several sources that the Federal Trade Commission will release its revised Environmental Marketing Guides on Wednesday, October 6, 2010 at 11 AM. These revisions are in response to the FTC’s review of its current guidelines on the use of green marketing terms, which began in 2008. It is expected that the revised guidelines will be more extensive and wide-ranging than those currently in place. The release will be in the form of a proposal, and comments will be requested. We will closely monitor new information about the release as we receive it. Our office will keep you informed about any actions we may take in response to this release.

If you have any questions about this matter, please contact Dan Jaffe in ANA’s Washington office at 202-296-2359 or at djaffe@ana.net.

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Dear Corporate Partners,

As the Internet and the advertising practices that increasingly support online content continue to evolve, a group of the nation's largest media and marketing trade associations in conjunction with the Council of Better Business Bureaus (CBBB) have been working to develop enhanced industry self-regulation in ways that will foster transparency, knowledge and choice for consumers.

Today, I am pleased to announce the details of a comprehensive Self-Regulatory Program for Online Behavioral Advertising that will give consumers enhanced notice and control over the collection and use of data regarding their Web viewing for online behavioral advertising (OBA) purposes. 

I am writing to introduce a few key components of the Program and to encourage your participation in a set of educational sessions where you can learn much more.

This new Program provides specific implementation practices in support of the Self-Regulatory Principles for Online Behavioral Advertising, which the industry released in July 2009. Together, the Principles and Program respond to the Federal Trade Commission’s call for more robust and effective self-regulation of online behavioral advertising practices.  The Program includes several important components:

• Advertising Option Icon: The Program promotes the use of an icon and accompanying language, to be displayed in or near online advertisements or on Web pages where data is collected and used for behavioral advertising.  The Advertising Option Icon indicates that the advertising is covered by the self-regulatory program, and by clicking on it consumers will be able to link to a clear disclosure statement regarding the data collection and use practices associated with the ad, as well as an easy-to-use opt-out mechanism. 

• AboutAds.info: Starting today, companies collecting or using information for behavioral advertising are encouraged to visit www.AboutAds.info to acquire and begin displaying the Advertising Option Icon, signaling their utilization of behavioral advertising and adherence to the Principles.  Interested companies engaged in behavioral advertising can also register to participate in the easy-to-use consumer opt-out mechanism on the www.AboutAds.info site.

• Consumer Choice Mechanism: As business registration and use of the Advertising Option Icon expand, consumers will have an opportunity later this fall to visit www.AboutAds.info for information about online behavioral advertising and to conveniently opt-out of some or all participating companies’ online behavioral ads, if they choose.

• Accountability and Enforcement: Starting in 2011, the CBBB and the Direct Marketing Association (DMA) will be responsible for monitoring and enforcing compliance, as well as managing consumer complaint resolution.  DMA and CBBB will employ monitoring technology to report on companies’ adherence to the transparency and control provisions of the Program. 

• Educational Campaign: To build awareness of the program among the business community and consumers, the trade associations will conduct a broad-based educational campaign.  To facilitate this initiative, we have planned a series of webinars for businesses on how to implement the Principles.  (Details on how to register for those sessions are included below.)

Over the coming weeks and months, the Council of Better Business Bureaus is committed to doing everything we can to help the industry understand and comply with the requirements of this new self-regulatory program.  As a next step, we hope that you will join us for one of the implementation webinars scheduled throughout the month of October:

• Thursday, October 7 from 12:00-1:30 p.m. Eastern Time
  Register
• Friday, October 15 at 12:00-1:30 p.m. Eastern Time
  Register
• Wednesday, October 20 at 9:00-10:30 a.m. Eastern Time
  Register
• Tuesday, October 26 at 12:00-1:30 p.m. Eastern Time
  Register
• Thursday, October 28 at 9:00-10:30 a.m. Eastern Time
  Register

Sincerely,

Stephen A. Cox
President and CEO
Council of Better Business Bureaus

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Environmental Leader:  83% of U.S. Consumers Want More Products, Services Related to Cause Marketing

Eighty-three percent of U.S. consumers want more of the products, services and retailers they use to benefit causes, according to the new 2010 Cone Cause Evolution Study. The report also finds that 41 percent of consumers have purchased a product in the past year because it was associated with a social or environmental cause (41 percent), a two-fold increase since Cone first began benchmarking cause marketing in 1993.

Law.com:  POM Sues FTC Over Advertising Rules

Juice maker POM Wonderful has filed suit against the Federal Trade Commission in the U.S. District Court for the District of Columbia, claiming the agency has created a new standard for the evaluation of deceptive advertising that tramples the company's free speech rights.

The Boston Globe:  City may curb sales of sugary beverages

Health idea involves municipal buildings

First, it was smoking in restaurants and bars. Then, artery-clogging trans fat in fast food joints and bakeries. Now, Boston health regulators have their crosshairs fixed on soft drinks and other sugar-sweetened beverages sold in city buildings.

Adweek:  Commercial Confusion

People in ad agencies are sensitive to the possibility that consumers will be annoyed by their handiwork. They may pay less heed to the peril that ads will leave the audience perplexed. As we see in an AdweekMedia/Harris Poll, significant numbers of viewers find TV commercials confusing at least some of the time.

Broadcasting & Cable:  PTC Shifts '$#*! My Dad Says' Campaign to Local Stations

Focuses on "grassroots activists"

The Parents Television Council is taking its campaign against CBS's new show, $#*! My Dad Says, to the local level. It had been targeting national advertisers--a spokesperson said it has contacted over 300 advertisers--but said Tuesday that it would shift the campaign to "grassroots activists" who will " take their concerns directly to their hometown CBS affiliates and each affiliate's local advertisers."

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