BAA-2016As mentioned, at BAA I gave a presentation on the interplay of marketing and advertising law to activate brands. Today I will share with you the final installment of this series…

What is shopper marketing?  It’s about harnessing technology and data to reach and influence consumers on their path to purchase – online to in-store.  It’s about creating a brand experience for the consumer – not just a brand or retail channel transaction.  It uses content, technology, promotion, data, social interaction and insights as tools for meaningful consumer engagement.

Shopper marketing is dependent on information and data.  But how does a brand or retailer collect and use the data? When does consumer data collection become invasive, and when do privacy principles apply to shopper marketing?

Retailers can now track consumers in stores.  Brands can know how long a shopper lingered in an aisle, and which products she looked at. Real time data is then used to deliver targeted offers.  All of this happens on the path to purchase, the place and time when consumers should be the most receptive.

Brands can now reach consumers in store aisles.  Think about location tags, beacon technology, retail keywords, RFID chips, and smartphones all working together to create interactive shopping experiences where e-commerce is brought into the brick and mortar context and brands connect with consumers via apps.

Virtual reality has also become part of shopper marketing.  Brands combine consumer and brand data to create an immersive virtual reality shopping experience.  For example, Lowes launched a VR program that lets consumers remodel their homes with products available at Lowes.  Customers can virtually stand in their new home and tweak the design – all without having to knock down an actual wall.

But what are the pitfalls?  And how are consumers reacting?  In one recent study, 72% of consumers said they were disturbed by how much of their information was known by retailers. Yet, 60% of respondents said that they’d share their real-time location data in return for something of value – like discounts, rewards, or even faster checkout.  Brands need to be aware of and respond to this disconnect while maintaining transparency with their consumers and keeping in mind key privacy principles that are in line with best practices, such as the Mobile Location Analytics (MLA) Code of Conduct.  A brand or retailer needs to consider what steps to take to comply with its obligations. Gathering data and tracking consumers without appropriate notice, choice and/or consent runs the risk of legal challenge – not just from the FTC, but in the form of consumer class actions.  The FTC’s recent enforcement actions against Nomi Technologies and Wyndham show us that the FTC is focused on enforcing consumers’ rights to consent to, and opt out of, the collection of their data, and to have their data properly secured if it is collected by the brand.  Similarly, the BBB has challenged mobile app developers for failing to secure consumer consent to collect geo-location data and unique device identifiers, and the DAA has issued guidance explaining how privacy principles apply to multi-site and cross-app data used across devices.