August 23, 2022
In this episode, Allison Fitzpatrick from Davis+Gilbert LLP joins host Jason Mudd to discuss the top 10 advertising topics to look out for. Tune in to learn more about NFTs, cannabis marketing, children’s advertising and privacy, sponsorships, endorsements, NIL, environmental marketing, automatic renewal, made-in-the-USA claims, and automatic renewal.
Watch the episode here
5 things you’ll learn during the full episode:
- What NFTs are and why they’re so popular in marketing
- The rules behind sponsorships and endorsements
- What to avoid in cannabis marketing
- The new changes coming to children’s advertising and privacy
- What to avoid with automatic renewal
Disclosure: One or more of the links we share here might be affiliate links that offer us a referral reward when you buy from them.
- Listen to more episodes of the On Top of PR podcast
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- Connect and learn more about Allison Fitzpatrick on LinkedIn
- Visit Davis+Gilbert LLP for more information on Allison.
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[01:27] 3 themes these 10 marketing topics fall under
- Products and claims are popular with this generation.
- State laws
- COVID-19 impacts
[04:04] Topic 1: NFTs
Allison: “NFTs are non-fungible tokens, and the reason it's on our list is because right now it is the hottest trend in marketing.”
- Marketers love NFTs because it gives them a coolness factor, buzz, and a way to connect with a younger audience.
- Communications firms love NFTs because their clients love them.
- NFTs are also popular with the entertainment and sports industry because it gives them buzz, publicity, and a coolness factor.
- Brands create NFTs, tie them to their products, and sell or auction them to break into the NFT space and build publicity.
Allison: “In truth, if you told me a year ago that we'd still be talking about NFTs, I really did think it was a fad that was going to go away. But no, it's No. 1 on our list for a reason because it is the hottest trend in marketing and promotions right now.”
[08:01] 2: Cannabis marketing
Allison: “Cannabis has become legal in, I think, a third of the states right now, and CBD is legal in all states. We're going to see marketers want to get more into the space. If their clients are in the space, marketing communications firms are definitely going to want to get into the space.”
- The FDA doesn’t approve of cannabis marketing, but it’s everywhere.
- When doing this sort of marketing, stay away from health and wellness: Don’t say it can treat or heal any type of illness.
- Be aware of state rules that restrict cannabis advertising in states.
- Don’t advertise these products to kids.
[11:15] 3: Influencers and endorsements
Allison: “It's not just been a trend for a year – it's been a trend for 10 years right now. But 10 years ago they were called bloggers. Now they're called influencers, and some are even called TikTokers.”
- The more well known you are, the more careful you have to be – influencers can be subject to regulatory actions, competitor actions, and class-action lawsuits.
- FTC Endorsement Guide for influencers (like including #ad, #sponsor in posts)
[14:48] 4: Children’s advertising and privacy
- The Children’s Advertising Review Unit updated its advertising guidelines Jan. 1, which replaced the TV-centric and CARU guidelines.
- The new updates will specifically refer to social media, digital media, influencer marketing, and in-game and in-mobile app advertising.
- Allison predicts these changes will include guidelines for child influencers.
- FTC is reviewing and making changes to COPPA currently.
[19:23] Is the brand on the hook for how a journalist describes the brand’s product or service?
- If a journalist writes using non-compliant wording and information in an article, the brand won’t be in trouble.
- However, this might spring an investigation into the brand to see if the brand is doing something wrong.
[21:45] 5: Name, Image, and Likeness (NIL)
- Creates a new category of influencers
Allison: “I think it really does make a big difference in the marketing landscape by having the availability of some of these college athletes who have very powerful names right now.”
- It’s a complicated area for marketers because of different state and school guidelines for NIL.
Allison: “You really need to look at those laws and make sure that when you are coming up with a deal for a college athlete it's based on the market value of that college athlete and you're not … paying him to play football.”
- Marketers want to be associated with marquee events and sponsorships.
- When COVID-19 started, these sponsored events started to take place virtually, which is a whole different way of marketing.
- NFTs, cryptocurrency, and other technology-based companies are taking over sponsorships for events like the Super Bowl because of this shift to the metaverse after the pandemic.
[29:03] Environmental marketing
- Very popular with millennials
- The FTC is bringing more and more green guides, and we will see more clarity with them.
- Marketers need to look at both federal and state laws because this is going to be a hot area of enforcement at the regulatory level.
[30:42] Automatic renewal
- Subscriptions are very popular with millennials.
- FTC and states are enacting more regulations in this area.
- Make sure it’s easy for consumers to cancel their subscriptions.
[32:56] Made in the U.S.
- Made in America claims are very powerful.
- These claims increase during times of war.
Allison: “There was always a policy, made in the USA policy, … if you made the claim, all or virtually all of the input had to be made in the United States. Well, now it's a rule. And if you violate that rule, you could be subject to a $43,000 fine for each violation.”
[34:28] Supply chain issues
Allison: “If you do not have enough supply to satisfy the reasonably anticipated demand, you really shouldn't advertise it, because it could be considered bait-and-switch advertising.”
- Don’t get into expensive advertising campaigns or sponsorships.
- Don’t enter a major media blitz.
About Allison Fitzpatrick
Allison Fitzpatrick is a partner at Davis+Gilbert, a law firm that specializes in working in the advertising, marketing, and public relations space. She serves as an adviser in all aspects of marketing and advertising and brings her clients through understanding the power of social media, influencer marketing, native advertising, and other forms of emerging media.
She frequently counsels clients on new media issues, including social media, user-generated content, blogging, mobile marketing and other emerging media. She develops clients’ blogging and social media policies and procedures and reviews clients’ social media campaigns to ensure compliance with the Federal Trade Commission’s endorsement guides and .com disclosure guides. She also advises clients on all aspects of children’s advertising and privacy, including compliance with the Children’s Advertising Review Unit’s Self-Regulatory Guidelines and the Children’s Online Privacy Protection Act. She routinely reviews websites, apps, privacy policies, and promotions to ensure compliance with COPPA and other privacy laws. Lastly, she has represented clients in proceedings before the Children’s Advertising Review Unit and the National Advertising Division and in-state regulatory investigations, including comprehensive multi-state actions, most notably in connection with negative option marketing and free trial offers.
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- Hello, and welcome to "On Top of PR," I'm your host, Jason Mudd, with Axia Public Relations, and today we've got a very interesting topic. We're talking about the top 10 advertising and marketing issues to watch. And I'm joined today by Allison Fitzpatrick. Allison, welcome to the show. We're glad you're here.
- Thank you, Jason, for having me.
- Allison is a partner with Davis+Gilbert, a law firm that specializes in working in the advertising marketing and public relations space. She serves as an adviser in all aspects of marketing and advertising and brings her clients through understanding the power of social media, influencer marketing, native advertising, and other forms of emerging media. Allison, appreciate you and our friends over at Davis+Gilbert and having you on the show today.
- Thanks for having us.
- So we're going to talk about 10 things, top 10 issues or topics that people should be aware of. And before we pressed record, we talked for a quick minute about three themes and topics that you can put these 10 items into. And I'll go ahead and just share those, and then you can emphasize them. And I hope our audience is taking some notes because it's going to be a very powerful and content-rich conversation. So, the three topics or themes that you might figure out as you participate in this episode, audience, would be that we're talking about millennials, state laws, and COVID impacts on marketing and advertising. Allison, … that's kind of what you came up with, is that right?
- That's what I came up with. And I think the first one wasn't necessarily just about millennials – it's really about the products and claims that are popular with consumers. But for whatever reason, if you really look at the products and claims we talk about in this, they're very popular with millennials. So I think you're right, it is really about what millennials want because, if you're looking at our list, the product and claims that we're talking about that are popular trends right now are NFTs, influencers, TikTokers, environmental claims, subscription marketing. You know, that is very popular with millennials, more so than older demographics.
- Yeah, I think it's fair to say that this is what the future of marketing and the future of consumer opinion and consumer insights is going to reveal, not just with millennials, but the next generation and beyond, perhaps. So, yeah, I'm excited that we're going to dive down in, dive through this. So we've got 10 topics we're going to talk about today: NFTs; cannabis marketing; influencer endorsements; children's advertising and privacy; name, image, and likeness, or NIL; sponsorships; environmental marketing; automatic renewal; made in the USA; and dealing with supply chain issues. So I think we'll just go through one of these at a time, get through all 10 in this episode. Take a deep breath and remember that, you know, we've been through worse and we'll make it through this as marketers. And then, Allison, maybe you could kind of point us to the experts in your firm that if somebody listening to this audience wants to have a deeper conversation with, who they could go to for these various topics. Is that something you could outline?
- And I'd like to take credit for this entire article, but I had three co-authors, and while we're all generalists in advertising, marketing, and promotions, we do specialize in specific areas. So while I'm a specialist in certain areas, they're specialists in some of the other areas we're going to discuss today.
- Absolutely, yes. And we'll put a link to the article as well so people can reference that in the episode notes. But, Allison, let's just start off with No. 1 on the list, which is NFTs. So let's just quickly in a sound bite explain to our audience what an NFT is. I know we've talked about it on other episodes, but just in case, let's set the groundwork. What is an NFT? And why does it matter to marketers?
- Well, NFTs are non-fungible tokens, and the reason it's really on our list is because right now it is the hottest trend in marketing. And the reason it's the hottest trend is because marketers love them. And the reason marketers love them is because it gives them, you know, a coolness factor, it gives them buzz, and it gives them publicity and allows them to connect with a younger audience. And marketing communication firms love NFTs as well because their clients love them and the clients want to be in their space. And it's a way to get new clients. And again, marketing communication firms, you want to be in NFT space because it gives them buzz and coolness factor and publicity. And it's also really popular with the entertainment and sports industries because they really want to license their properties and make money from licensing of properties, but they also want to promote their properties through NFTs. And of course, once again, the theme, it gives them buzz, it gives them publicity, and it gives them a coolness factor.
- So, Allison, give us either a real-life or a fictional example of how a brand might create an NFT. And maybe just to make it a little bit more complicated, a brand that's not in the entertainment or sports, celebrity, or music industry.
- I think a lot of what we work on is, and probably a lot of issues have come up in the sports and entertainment, but we've seen a lot of brands, they're creating NFTs, maybe NFTs that are tied to their products. And they're not really using them to make money. I think they're really selling them or auctioning them or tying them to a promotion. They're really using them to, again, get into the NFT space and to build publicity. And to the extent they are selling them, they may actually be, you know, giving the money they make to charities. Because, again, it's really not about making money for the brands that are in the space, it's gaining the publicity and the association with being in the space.
- So what kind of NFT have you seen maybe a consumer packaged-good or a consumer services-type company offer?
- I mean, just so you, I probably do more from the promotions perspective. So I deal with a lot of NFTs when it comes up in sweepstakes and contests. And those are the prizes that we tend to give away. And I probably, one really
interesting story is that about a year ago, my first intro into NFTs was in a contest in connection with Beeple – the artist, the famous artist. And as I'm doing this, you know, we're contemplating some really serious issues – how do you value an NFT? What disclosures do we need? Because there were issues of first impression, but at the time the client also had explained to me, what is an NFT. So we're handling that at the same time. But now, since NFTs have gotten so popular, really how they come up in the advertising, sorry, in the promotions area is really more turnkey. So like we really, you know, we have a … set of rules and we run the promotion and we have a set of disclosures. And that's how it really works in the promotions area. And, in truth, when you told me a year ago that we'd still be talking about NFTs, I really did think it was a fad that was going to go away. But no, it's No. 1 on our list for a reason because it is the hottest trend in marketing and promotions right now.
- Perfect. That's a great response, thank you. Let's move on to No. 2, which is cannabis marketing. Talk, let's talk about that.
- OK. See, as cannabis becomes legal in, I think, a third of the states right now, and CBD is legal in all states, we're going to see marketers want to get more into the space. And if their clients are in the space, marketing communications firms are definitely going to want to get into the space. But what you really need to be aware of is that the legal rules that apply are really confusing and contradictory. And when I say contradictory, let's look at marijuana, for example. As I said, it's legal in about a third of the states. However, it's illegal at the federal level. So what does this mean for marketing communications firms? Are they in violation of the law for aiding and abetting their clients by helping them with their marijuana promotions or, you know, even though it may be legal in their state? So, you know, that's kind of a tough area that they have to deal with. And, again, you know, that's where legal counsel can come into play. You know, another contradictory issue (we’re) dealing with is CBD is legal in, you know, in most states or almost every state. However, CBD is not supposed to be, not allowed by the FDA to be in any food or beverage products. However, if you go to your, you know, local restaurant or your local grocery store, you'll see that CBD is in all food and beverage products. So even though it's not permitted by the FDA, it's all over the place. So really what is a marketer to do in that situation? And I think there's a couple rules of thumb that we tell our clients, namely, whatever you do, don't make any health or wellness claims, because that's something that's really on the FTC's radar. If you are including any type of CBD in your products, stay away from health and wellness claims because you can't say that you're going to treat or heal any type of illness. And the other thing just to be aware of: There's, at the state level, there's certain advertising restrictions, and they're going to vary by state. And, again, one of our second themes is how the state laws really impact what marketers can do. But the one good rule of thumb is don't ever advertise these products to children. I think that's what all the states can agree on. And probably all the regulators and self-regulators would agree on as well.
- Yeah, absolutely. Absolutely. Very good. Allison, a little housekeeping. Who would be the partner in, or the person at your organization you would refer someone to for NFT further questions on this topic?
- That would be Louis DiLorenzo.
- We call him our vice attorney because he is the expert in all vice areas, from cryptocurrency to tobacco to alcohol to marijuana.
- That sounds like an interesting position, for sure.
- Yes, yes.
- And then for cannabis marketing, who would be the best contact?
- Who do you think? Our vice attorney, Louis DiLorenzo.
- OK, perfect, all right. And then let's move on and talk what's going on with influencers and endorsements currently.
- Well, influencers, it's on our list because it's not just been a trend for a year, it's been a trend for 10 years right now. But 10 years ago they were called bloggers. Now they're called influencers, and some are even called TikTokers. And what we've seen in the industry is really, particularly over these last 10 years, how much they've grown and become a real powerful force. And to the extent they become more powerful and more well known and they make more money off their endorsements, they are going to be subject to their own liability. I like to say, you know, with great power comes great responsibility. Well, as they become more well known in the industry and have deeper pockets, they're going to have to be more careful about the laws that are out there because they could be subject to regulatory actions the same way as brands are. And they could also be subject to competitor actions or class-action lawsuits. And I think one interesting case that came up at the end of last year was Molly Sims. You know, she is an influencer, and she was promoting a sponsored product for an eyebrow pencil and, for Rodan + Fields, and whatever the name of the product was, she put it in her social media post, and she was sued for trademark infringement by Rodan + Fields' competitor who said, "That's our trademark." They also went after Rodan + Fields. And I think it's an interesting lesson here because if she was a small mommy blogger that nobody knew, she would not be on their radar. But because she's a well-known, famous influencer with deep pockets, she was subject to a trademark infringement action. And I think we're also going to think about that, as influencers become more well known, they're also subject to regulatory actions. And the FTC historically has really tried to only bring these endorsement-type influencer actions against the brand itself. But it's definitely looking more at influencers, particularly because they become powerful in their own right. And I think we're going to see an uptick in this (in) the next couple months with respect to the FTC bringing more actions involving influencers, in part because at some point this year we're going to see the updated FTC Endorsement Guides come out. And we, at the end of last year, we also saw the FTC send a notice of penalty offensives to 700 companies, putting them on notice that they could be subject to $43,000 fines per violation if they violate the FTC Endorsement Guides. So there's 700 companies right now who are on notice that if they violate the FTC Endorsement Guides, such as by having their influencers not include the appropriate hashtag ad or sponsored in their post, it could result in a very expensive FTC enforcement action.
- Well, and what else is on my mind here is that sometimes these influencers are more well known than the brand itself is. And so therefore it makes sense to put the influencer on notice or to perhaps even go after them. So who's the practice head there, Allison, for influencers?
- I would like to say that's my specialty. So if anybody has any influencer questions, feel free to reach out to me.
- OK. And the next topic is also one of your specialties, which is children's advertising and privacy.
- Yes, it is. And I think we can expect to see a lot of activity in the children's advertising and privacy arenas in the upcoming next, sorry, upcoming months. (On) Jan. 1, at the beginning of the year, the Children's Advertising Review Unit's updated advertising guidelines went into effect. And these really replaced the TV-centric, CARU guidelines that were created in the 1980s. But they've been updated to really reflect the new media forms children are on these days, meaning social media, digital media, influencer marketing, and in-game and in-mobile app advertising. And CARU has vowed to really start to investigate non-compliance with its updated guidelines. So I think it's very likely that in the next couple months we are going to see more CARU actions. And I think my prediction is, is at least one of them isn't going to involve child influencers. And child influencers are, really, that could be a hot topic in itself because they are so popular. But the updated CARU guidelines now addresses specifically child influencers and child influencer disclosures. So if there are any of these children influencers out there that are making $20 million a year, they really should be looking at the CARU guidelines and making sure they're complying and making the appropriate disclosure guidelines because it will be on CARU's radar. And secondly, I think we're going to see a lot of activity in the children's space because of COPPA, the Children's Online Privacy Protection Act. And I like to say 2019 was a banner year for COPPA violations because the FTC had brought an action against TikTok and YouTube. And it really changed the face and the landscape of YouTube. But then the past two years was pretty quiet on the COPPA front. And I think that was in part, there was a new administration, and I think they were also building COPPA cases. I think in the next couple months we're going to see some big COPPA cases that may have been under investigation over the last couple, last year or so. And also, just keep in mind, the FTC is reviewing COPPA right now, and we expect to see some changes, major changes, in the law, maybe by the end of the year, I can't predict when it's going to come. But when they do announce a new COPPA rule, you can imagine that there's going to be some more enforcement when that announcement is made.
- Right, right. Well, Allison, we're going to take a quick break and come back on the other side with these six other topics and trends that people need to be aware of for marketing issues. So stay with us, we'll be back after this message.
- [Announcer] You're listening to "On Top of PR" with your host, Jason Mudd. Jason is a trusted adviser to some of America's most admired and fastest growing brands. He is the managing partner at Axia Public Relations, a PR agency that guides news, social, and web strategies for national companies. And now, back to the show.
- Welcome back to "On Top of PR." I'm your host, Jason Mudd. We're joined today by Allison Fitzpatrick. Allison, you've been great walking us through all these things. I'm going to throw a curveball at you here for a second and ask you a question. We work with clients who are in highly regulated industries or offering regulated products and services ourself. And occasionally those clients become, you know, they may have been put on notice or they're trying to do their best to be compliant with the regulatory entities and the compliance. They get concerned, though, when something is out of their hands, like a news article that's written by a journalist, that the article ideally is going to be mentioning their product or their company in a favorable way, but they feel like it could come back to them in some way if a journalist wrote something and in that writing contains some non-compliant language in it that our client either didn't say in the interview or didn't say in the materials they provided, but the journalist, not knowing better, might include such language. Is the client or brand really on the hook for how a journalist might choose to describe the product?
- The client or the brand is not on the hook the way, as a result of the way the journalist describes the product. However, if the regulators do not like the way the journalist describes the product, it's very likely the regulators might start investigating the client's product. Now, the client should not be in trouble if the journalist made a mistake or did not fairly represent the product. But if there is some truth to it, or there was some previous truth to it, the client may need to take a look at their practices because that's where some regulatory actions really start. They start with the media picking up a story. And, unfortunately, in this instance, it sounds like maybe the media picked up a not truthful story, but if other journalists pick up the same sound bites or same story, that's where regulators are going to look. And if the client did nothing wrong, then there shouldn't be an issue. But if they did do something wrong or they did so in the past, (if) they are now, they could be on the regulator's radar. So I think what they may want to do is just make sure they get the correct information out there, you know, through their own channels, through their own social media, through their own publicity. You know, describe the product in a way that is truthful and doesn't violate the law or doesn't raise any red flag issues with regulators.
- Yeah, and as I mentioned earlier when we were talking, that it's often just the client just being overly concerned about that hypothetical possibility happening, as opposed to the reality. But it's like you said, if a company doesn't make claims that a product works a certain way, but perhaps a journalist tried the product on their own and felt like it helped with certain things on their own, I've had clients be concerned that, "Well, what if that comes back to us?" But I appreciate the way you answered that. Maybe that's a topic we can dive into another time.
- Oh, happy to.
- Yeah, so moving on to our remaining six topics or issues, this one's been in the news a lot, name, image, and likeness, or NIL as people are calling it. And, you know, the context of which I think we're most familiar is now with college sports athletes, but I'm sure it goes beyond that as well. So, Allison, brief us on this please.
- Well, the reason we added it to our list is because of its importance with marketers with respect to college athletes. And in part because, you know, now that there's these name, image, likeness laws out there, marketers have a whole new category of influencers out there. You know, we talked before how popular influencer marketing is. Well, just think about it. Now with college athletes available for social media and influencer marketing, we have a whole category of new influencers out there. And I like to think this, I may date myself, but think about … when it was Tim Tebow and Reggie Bush. They were really popular, but they could not legally accept money for their endorsements, you know? That would've been a game changer for some local car dealers and local advertisers if they could have had Reggie Bush and Tim Tebow promoting their products. So I think it really does make a big difference in the marketing landscape by having the availability of some of these college athletes who have very powerful names right now. But what you really need to know is that, once again, this goes back to one of our themes: the state issues that there really is no federal law right now. You know, some states, many states have these rules and some don't. So what is a marketer to do? Well, if the state doesn't have any rules – name, image, likeness statutes – then they have to deal with either the conference or the school or the university itself. So it really does become a complicated area for marketers. But I think despite its complicatedness, I think marketers are going to want to reach out and hire some of these college athletes for influencer activities. And they just have to be aware that there are these state rules that they should look into and what they cover. And some of the things they cover are, you know, you need to give notice and approval to the school. And also I think there's restricted product categories. You know, these athletes can't promote tobacco, alcohol, casinos, gambling, and certain topics like that. And the other thing that I think is pretty interesting, which really goes to the heart of some of these laws is that they really can't promote play or pay schemes. You know, if a marketer hires a college athlete under NIL to promote their products, they really need to be hiring the college athlete to promote their products and use the market value of that influencer and not just pay the college athlete to play football or play college basketball. Because I think there is a concern, particularly at the NCAA level, that there could be boosters out there who are using these laws to do an end grand run around, you know, paying college athletes to play football or play basketball. So you really need to look at those laws and make sure when you are coming up with a deal for a college athlete, it's based on the market value of that college athlete and you're not … paying him to play football.
- Right. Yeah, that's a good observation. We've dabbled in this a little bit with some of our clients and found that some universities just can't manage and staff a compliance department at this level. So they kind of put it on their students to make sure they're doing it right. But we all know that if they start doing it wrong, it's going to fall on the student, the university, as well as perhaps even the brand itself. So it's a little Wild West right now, I would agree. But we're quickly running out of time, so we'll move on to sponsorship.
- OK, sponsorship.
- [Jason] Oh, I'm sorry, and, Allison, who would be the best contact at your law firm for NIL?
- That's James Johnston. He's our sports and entertainment attorney.
- [Jason] OK, perfect. Would he also be the best guy to talk about sponsorships?
- He would be the person to talk about sponsorship, yes.
- [Jason] OK, let's do that.
- OK. So, you know, sponsorships are a very powerful tool for marketers. And, you know, marketers really want to be associated with marquee events. I mean, just look at the Super Bowl that just happened and look at the Olympics, and we're going to look at March Madness. And it's very important to marketers to be associated with these important marquee events. It's good for their brand. However, what our article does talk about is that COVID really disrupted the sponsorship landscape the past two years. Even though we're two years out of COVID, you know, end of last year, we saw a lot of live events, particularly music events, and some college games all were canceled because of COVID. And so what happened? It ended up having more events, more of these live events, these live sponsorships, happening in the virtual space, in the metaverse. And I think that could be a trend we're going to see going forward. And we may also see a trend of these live events taking place in-stadium, but also virtually. And I think we're going to see different sponsorships. You know, you might have one sponsor, maybe in the same category, you know, being the sponsor of the live event, and then the same event running virtually, and another sponsor for that. So, you know, who knows? Maybe the fact of COVID having so many more virtual events does have some additional sponsorship opportunities. But I think it did create changes in the industry. And I think one of the most interesting changes is, you know, who are the sponsors of these events? And I was talking to, as I said, Jim Johnston, he's really our entertainment sponsorship attorney, and he brought up a very good point that pre-COVID, there was a lot of sponsors in the hospitality category, in airlines, hotels, cruises, rental cars, restaurants. But they all started pulling out, or many of them started pulling out once COVID hit. And who replaced them? Well, just look at the Super Bowl. Who replaced them? It's the sports betting, it's the cryptocurrency, it's the NFTs. I know it, have you been able to watch a football game and go through a commercial break without seeing a sports betting commercial? Or think about how many cryptocurrency-related commercials you saw during the Super Bowl? So I think it's an interesting trend that we're seeing, is that, you know, who now is taking over these sponsorships and being major players in the sponsorship industry. And many of these is the result of COVID.
- Well, No. 7 now on our list is environmental marketing. Thank you for sharing all that, Allison. Let's talk about that for a second.
- OK. Well, green marketing is very popular right now, and it's particularly very popular with millennials. And, again, it goes back to our theme, like how do we come up with these topics? Well, environmental marketing, green marketing, is very popular with consumers, but primarily with millennials. And with that, you know, has resulted in a lot of regulatory action in this area. We've seen it at the FTC. The FTC's bringing more and more green claims. And it also seems like the FTC is going to update its green guides and provide further guidance in some of the important buzzwords that we use in the industry today – you know, sustainability, clean, energy-efficient, organic, natural. So we're going to see some more clarity from the FTC when it updates its green guides. But when it updates its green guides, we're also going to see more enforcement. So if you are a marketer making environmental claims, really, you need to look at both the federal and the state law, because this is going to be a hot area of enforcement at the regulatory level. And just one other thing, it's not just the regulators, you know, the self-regulators, the National Advertising Division, that's been very active in the space and actually brought two actions last year on its own. So, if you're making environmental claims, talk to your lawyers.
- Well, we've got three more items on our list as we're running through these quickly. Let's talk next about automatic renewal.
- OK. Again, going back to our theme, why is automatic renewal so popular right now? It's because millennials love subscriptions. You know, I talked to Alexa, she's the one who is our, you know, wrote this section. She's a millennial.
- [Jason] Oh, I thought you meant Alexa as in the device from Amazon.
- Oh no, sorry, Alexa Singh, she wrote this section.
- [Jason] Because Alexa's always promoting, promoting.
- She said to me, she said: “You know what? I don't pay a cable bill. I have a Hulu and Netflix subscription. You know, I don't go to the makeup store. I have a beauty box delivered.” You know, subscriptions are very popular with millennials. So it's not surprising that we're seeing both the FTC and the states enacting more regulations in this area. And I think you have to just be aware that if you are a marketer that you have to deal with the FTC, they have something called the Restore Online Shoppers' Confidence Act and the FCC Negative Option Rule. And they've also had some enforcement policy that came out a couple months ago. So if you are in the space, you need to be aware of the FTC regulations. But then, again, one of our themes: states. The states have their own laws, and they keep multiplying every couple months. You know, California's really the leader, and a lot of states are mimicking California's law. But some states have their own laws. And Jan. 1, you know, Colorado, Delaware, Illinois, they all came up with new laws. So if you are in the space, it's really important to focus on federal and state law. And, really, I think some guidelines is just make sure it's easy for consumers to cancel their subscriptions. I think that's a real hot topic right now for both the state and the federal regulators.
- I was recently involved in something where I had to call a company like five times to get unsubscribed from something. And, you know, I was kind of mindfully telling them, you know, this is not a good business practice. So, yeah, for sure. I feel that is-
- And it's probably not legal right now.
- Yeah, yeah. I feel that as a customer. All right, so last two. No. 9 is Made in the USA.
- Yeah. Well, Made in USA is a very powerful claim. I think if we look back, there's a company, WeatherTech – they've had Super Bowl commercials for many years, and they don't do any of the gimmicks, they don't do any of the celebrities. They just use a Made in America claim. And it doesn't do well in the ad meter or anything like that. But what they do say is that increases sales. So Made in America claims are very powerful. And, you know, I hope we don't go to war or there's nothing else. But when we do go to war and when there is, you know, tough times at home, that's when we see an increase in Made in America claims. But, you know, there are guidelines that you need to file. And now it's actually a rule. So there was always a policy, Made in the USA policy … if you made the claim, all, or virtually all, of the input had to be made in the United States. Well, now it's a rule. And if you violate that rule, you could be subject to a $43,000 fine for each violation. So marketers need to be more aware than ever to make sure that their Made in America claims are actually in compliance with the law.
- Right. I've also seen a lot of companies start using Designed in the USA, right? Which is, of course, a very interesting way to word it. So our 10th and final topic – everybody take a deep breath, this has been a lot, and I appreciate all you've shared, Allison – is dealing with supply chain issues. Let's talk about that challenge.
- OK, well, as I mentioned, our theme is COVID, and what sums up COVID more than supply chain issues? We've all experienced it, all markers have experienced it. But what marketers need to know (is) that there are some legal obligations that come with supply chain issues. For example, if you do not have enough supply to satisfy the reasonably anticipated demand, you really shouldn't advertise it because it could be considered bait-and-switch advertising. Also, if you can't deliver the product in the time frame you've told the consumers, well, then it's up to the mailer rule. And there's certain of that. But I also like to look at this practically speaking. You know, if you are having supply chain issues, is it really smart at this time to go invest in a very expensive advertising campaign and hire top celebrities to sell your products when you really can't deliver them to anyone? You know, it's not really the best time to enter into a major media blitz if you are having supply chain issues. It also may not be a good time to enter into expensive sponsorships. And one of the questions I was talking to with one of my colleagues was, is that the reason why we didn't see many beer commercials during the Super Bowl? Or, as I said before, did the sports betting and cryptocurrencies just beat them to it? So all things to think about when you're dealing with supply issues, legal and practical.
- Allison, this was very informative. I appreciate all the insights you shared and us getting through all 10 of these in a short amount of time today. If anybody that is tuning in wants to get ahold of you, what's the best way for them to reach you?
- Oh, email. AFitzpatrick@DGLaw.com. A-F-I-T-Z-P-A-T-R-I-C-K@DGLaw.com.
- Perfect. And you're also on LinkedIn and if you want to just get connected with you and follow you there.
- And I'm on Twitter too
- OK, perfect, excellent. What's your Twitter handle?
- I believe it's AFitzpat1.
- OK. And we'll put a link to that in our episode notes as well too, and we'll confirm that's the right address. Allison, I want to thank you for sharing today. This has been very thoughtful and insightful. I appreciate you breaking it down into three themes as we look at all 10 of these items. And my hope is that somebody in the audience has heard one or more things that directly impact their company, their industry, and their colleagues, and that from it they would take time to share that with those people and have conversations around what you shared today.
- I hope so too.
- Yeah. Allison, many thanks to you for being part of it. Let me close out now and say you've been watching an episode of "On Top of PR" from Axia Public Relations. I want to thank our guest, Allison, today and our friends at her firm, Davis+Gilbert, for their support with putting together this episode. If you have a topic you'd like to learn more about, please be sure to reach out to me or to Allison or "On Top of PR," let us know, and we would be happy to help you with that. Otherwise, Jason Mudd signing off and helping you stay "On Top of PR."
- [Announcer] This has been "On Top of PR" with Jason Mudd presented by ReviewMaxer. Be sure to subscribe so you don't miss an episode and check out past shows at OnTopOfPR.com.
- On Top of PR is produced by Axia Public Relations, named by Forbes as one of America’s Best PR Agencies. Axia is an expert PR firm for national brands.
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About your host Jason Mudd
On Top of PR host, Jason Mudd, is a trusted adviser and dynamic strategist for some of America’s most admired brands and fastest-growing companies. Since 1994, he’s worked with American Airlines, Budweiser, Dave & Buster’s, H&R Block, Hilton, HP, Miller Lite, New York Life, Pizza Hut, Southern Comfort, and Verizon. He founded Axia Public Relations in July 2002. Forbes named Axia as one of America’s Best PR Agencies.
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