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Category Archives: Marketing

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Advertising Claim Substantiation: 5 out of 5 Readers Will Love this Article

Posted in Advertising, Marketing

20,679 physicians say Lucky Strike [cigarettes] are less irritating. It’s hard to imagine that a claim from a 1930s Lucky Strike ad survived today’s regulatory and class-action environment. Someone would take a shot at the ad: a competitor brand, the Federal Trade Commission (FTC), or consumers.

But maybe we haven’t evolved all that much. Here is another number: advertising claim substantiation fails nearly three out of four times. This one is true. Looking at 68 consumer perception surveys deployed by brands and their challengers from 2006 to 2011, 71% were deemed unreliable by the National Advertising Division (NAD) of the Council of Better Business Bureaus, which offers alternative dispute resolution for advertisers.

The FTC advertising standard, which dates back to … Continue Reading

Lessons Learned & Practical Advice: Many Challenges and Big Changes for the NAD

Posted in Advertising, Marketing, Regulatory

As mentioned in my last post, over the next few weeks, I will be sharing with you a few articles I co-authored that were included in our Lessons Learned/Practical Advice publication. (To read the full publication, click here.)   Each article suggests steps that marketers and agencies may take to decrease risks and help ensure compliance with applicable laws and regulations.

This week I will share my article on the National Advertising Division of the Council of Better Business Bureaus (the NAD) that I co-authored with Davis & Gilbert Advertising, Marketing & Promotions Partner, Aaron Taylor.

NAD

2015 was another eventful year for the National Advertising Division of the Council of Better Business Bureaus (the NAD). Fifty-six competitor challenges were … Continue Reading

Lessons Learned & Practical Tips: Green Marketing Still Needs Support

Posted in Advertising, Environmental, Marketing

The marketing communications industry experienced a number of important changes in 2015. In the third edition of our Lessons Learned/Practical Advice publication, lawyers from Davis & Gilbert explore the key regulatory developments, statutory changes, and court decisions in numerous areas such as children’s advertising, entertainment, social media, trademark, and data security. To read the full publication, click here.  In addition, each article suggests steps that marketers and agencies may take to decrease risks and help ensure compliance with applicable laws and regulations.

Over the next few weeks, I will be sharing with you a few articles I co-authored. I am kicking off this series with my article on green marketing that I co-authored with Davis & Gilbert Advertising, Marketing … Continue Reading

Digital Media and Trust

Posted in Advertising, Digital, Marketing, Privacy

When it comes to trust and digital media, it’s an understatement to suggest that it cuts both ways. It’s more accurate to state that it slices and dices as many ways as a kitchen appliance from an infomercial.

On one hand, it appears to be easier than ever to assess trustworthiness across the digital landscape. We can vet product recommendations from Amazon, pull factoids from Wikipedia, and even gage credibility based on search engine rankings.

But on the other hand, what we see on digital media already reflects some prior manipulation or steering of products, or information. Or we may be seeing products and services that can’t even be sold. For example last year, Google banned 14,000 advertisers for hawking … Continue Reading

How Compelling Content Helps Shape Online Reputation

Posted in Digital, Marketing, Public Relations, Social Media, Technology, Trust

You’re only as good as your first page of Google search results. That’s the reality of today’s business environment. Keeping a company’s online reputation as pristine as possible is a baseline for any sophisticated marketing strategy.

Need proof? The Edelman Trust Barometer for 2015 found that Internet search engines are now the most trusted source of news and general information. When surveyed, 72% of online users said they trusted search engine results, a statistic that’s up 8% from 2014. Put another way, nearly three quarters of potential customers searching a company’s name will likely trust what Google returns on that first page. Glowing results will drive sales. Negative results will not.

One of the best ways to control what shows … Continue Reading

The Whirlpool Effect: Emotional Ads Boost Sales

Posted in Advertising, Digital, Marketing, Social Media

Buying is an emotional act. Science bears this out. Functional MRI scans, in fact, show that people often rely on emotions rather than information when evaluating brands. Other studies have found that the emotions triggered by an ad influence a potential customer’s intent to buy far more than the actual content – by a factor of 3-to-1 for television commercials.

A perfect case study for this is Whirlpool’s “Every day, care” campaign. In addition to being a solid example of the power of visual storytelling, the campaign’s television ads focus on the small, everyday acts of kindness that often go unnoticed, but have remarkable impact. The spots evoke strong emotions, and maybe even a few sniffly tears. Whirlpool has also … Continue Reading

If You’re Just Hearing About Multiplatform Publishing, It May Already Be Too Late

Posted in Digital, Marketing, Media

Have you heard of Digital Darwinism?

You can probably wager a guess at what it means. As it relates to multiplatform publishing, it holds that the brands that can’t adapt will not survive this content revolution. More specifically, brands that don’t seek to reach customers everywhere, and in real time, will be left in their competitors’ digital dust.

TV, print, radio, social, mobile, outdoor – the list goes on. Multi-channel marketing is not new. But the strategy of building and embracing an ecosystem of channels targeting a number of devices is becoming more of a “must” than a “should.” Sure, part of it depends on your industry. Media companies such as ESPN and Vice Media are leaps and bounds above … Continue Reading

New York Cracks Down on Advertising’s Bad Apples

Posted in Advertising, Direct Marketing, Legislation, Marketing

“Advertising and marketing cannot be used as a tool to confuse and endanger New York consumers.” – New York Attorney General Eric Schneiderman, April 2015

When you think about police work in the city of New York, you’re likely to think about officers patrolling the streets – not the billboards above it.  The fact is, however, that just as the city works to prevent violent crime, it also devotes law enforcement resources to ensuring that advertising and marketing in the city is not deceptive or otherwise in violation of the law.

The quote above, direct from the New York Attorney General, is proof of just how high that commitment reaches.  It comes from an announcement this spring of lawsuits the … Continue Reading

Women’s Active Wear Market Grows Inside Out

Posted in Advertising, Digital, Marketing, Media

Two decades ago, Jerry Seinfeld famously said to best friend and self-proclaimed schlep George Costanza: “You know the message you’re sending out to the world with these sweatpants? You’re telling the world, ‘I give up. I can’t compete in normal society. I’m miserable, so I might as well be comfortable.’”

But fashion designers didn’t give up. Fast forward to 2015, and active wear —whether for activity or leisure— has been reinvented. Active wear is no longer an afterthought. It’s much more than a stitch niche; in fact, it’s become one of the fastest growing fashion segments. According to market research company NDP Group, active wear drove an eight percent increase in women’s apparel from 2013 to 2014.

One of the … Continue Reading

It’s in the Bag: The Shopper Marketing Evolution

Posted in Advertising, Direct Marketing, Marketing

Once upon a time, newspaper circulars and static-filled messages broadcast over store speaker systems represented the cutting edge of shopper marketing. You had to think and decide for yourself what to buy and where to buy it. Those days are long gone.

Today shopper marketing happens in real time, across multiple marketing channels, and it’s always lurking around the corner. Shoppers are in the crosshairs whether they’re being hit by a retargeting banner ad after leaving an e-commerce site or pinged by a geo-located push notification on their mobile phone as they walk by a favorite shop with a clearance sale happening.

The heartbeat of today’s shopper marketing is what is called “programmatic advertising.” At a high-level, this tactic involves … Continue Reading

The Martin Agency Reveals the Model for Consistent Creative Work

Posted in Advertising, Marketing

In the advertising world, perhaps not even “Mad Men” is as consistently entertaining as The Martin Agency. Known for steady and creative execution of Fortune 500 accounts, Martin helped bring GEICO out of the stone age (or into it, rather) with its caveman campaigns, and re-energized Walmart’s image with a clean and modern approach.

Named as the 2009 Agency of the Year by Adweek, The Martin Agency may be headquartered south of the Mason-Dixon Line in Richmond, Virginia, but it’s not considered a Madison Avenue outlier or scrappy underdog in terms of its work or talent. (The agency has offices in New York and London, too.) It’s a top-flight outfit that’s fueled its success with strong leadership and even a … Continue Reading

Disruption in Marketing & Advertising: Engaging & Influencing Customers Online

Posted in Advertising, Marketing, Mobile

As mentioned, at BAA I gave a presentation on how disruption is permeating advertising, media, and marketing today. I now will share with you the final installment of the series…

How do brands engage consumers in ways directly relevant to the target audience?  The answer may be Shopper Marketing – more appropriately dubbed as “Omnichannel Marketing.”  These marketing tactics are about engaging and influencing customers on their path to purchase.  They are about driving consumer engagement using content, technology, data and insights, together with promotions, branded campaigns and social interaction.  It’s about delivering the right products, in the right environment, in ways that are relevant and effective today.

Shopper marketing is heavily dependent on information and data.  How do marketers … Continue Reading

Disruption in Marketing & Advertising: Trust in Digital Media

Posted in Advertising, Digital, Direct Marketing, Marketing, Media

As mentioned, at BAA I gave a presentation on how disruption is permeating advertising, media, and marketing today. Today I will share with you the second installment of this three-part series…

One of the biggest issues facing advertisers, marketers and agencies today is the concept of “Trust.”  Not “Trust” in the context that advertising lawyers usually consider – the truth and falsity of advertising claims.  Rather, the issue is “Trust” as it relates to digital media.  And this issue relates to brands as well as media buying agencies.  Digital media is an integral part of all marketing and promotion today, and marketers and their agencies are part of that process and have responsibility for it – and may even have … Continue Reading

Disruption in Marketing & Advertising: Staying on Top of the Evolving Legal Landscape

Posted in Advertising, Digital, Marketing

This week, leading lawyers, regulators and marketers attended the 37th Annual Brand Activation Association (BAA) Marketing Law Conference in Chicago. At BAA I gave a presentation on how disruption is permeating advertising, media, and marketing today. Over the next few days, I will share with you three video clips from my presentation. Let’s dive into the first one…

The lines between advertising agencies, digital agencies and even product development shops are blurring.  We are seeing the rise of “brand activation agencies” that use shopper technologies, experiential marketing and targeted promotions to create products and foster consumer engagements.  Just like the four innovators in the video, marketers and agencies are becoming agents of disruption.  These companies are changing the way we … Continue Reading

How Dan’s Papers Have Helped Shape “The Hamptons” Brand

Posted in Advertising, Marketing, Media

It may be hard to believe now, but there was a time in the 1970s when residents of the Hamptons felt that the area could use some publicity.  Enter Dan Rattiner, founder of Dan’s Papers, a weekly lifestyle publication covering the Hamptons with a whimsical voice that isn’t afraid to have a little fun.  Miffed that the Hamptons, the setting of the novel Jaws, had been replaced in the movie by Martha’s Vineyard, Dan put an attention-grabbing hoax on the front page of one of his weekly papers, the East Hampton Summer Sun.  He ran an open letter from the Chief of Police, urging donations to a “raw meat drive” that would help satisfy a shark that was currently eating … Continue Reading

New York Attorney General Is Latest Regulator to Challenge the Auto Industry

Posted in Marketing, Regulatory

Recently, I co-authored the below advertising alert with Advertising, Marketing & Promotions Partner, Matt Smith.

On the heels of recent high-profile enforcement actions by both the Federal Trade Commission (FTC) and the Consumer Financial Protection Bureau (CFPB) against the automobile industry, the New York Attorney General (NYAG) has now zeroed in on the industry as well.

Over this past summer, NY AG Eric Schneiderman settled numerous allegations of deceptive practices with more than 25 automobile dealerships throughout the state, requiring the dealerships to collectively pay over $14 million in restitution and penalties. And Schneiderman has indicated that his office intends to continue monitoring New York auto dealers and will bring more enforcement actions as necessary.

Background

In March 2015, as … Continue Reading

Part 3: FTC Updates Answers to Frequently Asked Questions About Endorsement Guides

Posted in Advertising, Marketing, Promotions

As you know, over the past few weeks, Advertising, Marketing & Promotions Partner Allison Fitzpatrick and I have been discussing the FTC’s updated answers to its FAQs. The following topics will conclude this series: online reviews, employee endorsements, and monitoring.

Online Reviews: According to the FTC, a retail website that includes customer reviews of the products and encourages honest reviews of its products, regardless of whether the reviews are positive or negative, should disclose which reviews were made in connection to free products. Knowing that reviewers received the product they reviewed for free would likely affect the weight the audience gave to the reviews, even if the retailer did not intend for that to happen. In addition, reviewers could fear … Continue Reading

Part 2: FTC Updates its Answers to Frequently Asked Questions About Endorsement Guides

Posted in Advertising, Digital, Marketing, Social Media

As I mentioned last week, I will be continuing to discuss the FTC’s updated answers to its FAQs. This week, Advertising, Marketing & Promotions Partner Allison Fitzpatrick and I will focus on influencers and ambassadors, celebrity endorsements, and social media and promotions. Stay tuned for our last post in the series on online reviews, employee endorsements, monitoring.

 

Influencers and Ambassadors

In response to whether the Guides applied to influencers and ambassadors who are hired to promote a product or business on social media outside of their work hours, the FTC cautioned that these influencers and ambassadors have a financial connection to the company that hired them, and that relationship exists whether or not they are being paid for a … Continue Reading

Part 1: FTC Updates Answers to FAQs About Endorsement Guides

Posted in Advertising, Marketing

The Federal Trade Commission (FTC) recently updated its answers to a series of frequently asked questions (New FAQs) about its Guides Concerning the Use of Endorsements and Testimonials in Advertising (Guides). The updated FAQs are further proof that endorsements and testimonials are once again on the FTC’s radar, and marketers and their agencies should expect an increase in enforcement over the upcoming months.

This summer, Allison Fitzpatrick, Advertising, Marketing & Promotions Partner, and I co-authored an alert on the FTC’s updated answers to FAQs about endorsement guides. Given the long-awaited guidance, I wanted to share with you its potential impact. In the next coming weeks, I will be addressing the following affected areas: Social Media, Likes, Pins, and Posts, … Continue Reading

A David in the Land of Agency Goliaths

Posted in Advertising, Digital, Marketing

Sometimes it seems like the advertising industry is nothing but a land of Goliath’s – Goliath’s that are bent on marrying or eating one another.

David Angelo launched the David&Goliath agency in 1999, he and his agency have had enormous success by “thinking like David,” being nimble, resourceful, creative and brave – and fiercely independent. I’d also add “slyly funny” to that list of descriptors. David&Goliath’s Super Bowl spot for the Kia Sorento poked fun at over-the-top Super Bowl ads by having former James Bond star Pierce Brosnan dodge owls and a moose on a snowy mountain road. AdWeek’s Tim Nudd listed it among his five favorite ads of Super Bowl XLIX. David&Goliath’s spot for last year’s Super Bowl – … Continue Reading

Broadway Embraces Star Power, Creative Marketing

Posted in Advertising, Marketing

Timing is everything on Broadway, and with and with the new season kicking off, it’s an opportune moment to check in on marketing practices on the Great White Way.  The talk of the theater world this spring has been Fish in the Dark, the Broadway debut of Seinfeld co-creator Larry David.  The play broke advance sales records to the tune of $13 million, providing further support for the notion that star power goes a long way in selling theater tickets.

Stars bring built-in audiences with them, making their presence alone an effective marketing tool for producers.  Indeed, a glance at Broadway’s current lineup confirms that many productions are adopting the tactic of staging productions that have already established their … Continue Reading

Environmental Marketing Needs To Get Real

Posted in Advertising, Environmental, Marketing

As you know, Davis & Gilbert produced our 2014/2015 Lessons Learned Practical Advice document, where our lawyers highlight major developments in the marketing communications industry, and offer tips and best practices for marketers and their agencies in 2015. To view the full 2014/2015 Lessons Learned Practical Advice document, click here. This week, I wanted to share with you the section I co-authored with Matt Smith on environmental marketing.

2014 was another active year for environmental marketing claims, as consumers showed an increasing willingness to change their purchasing behavior based on environmental impact, and regulators made good on their promise to ramp up enforcement. Although the Federal Trade Commission (FTC) sent a strong message to marketers that it takes environmental … Continue Reading

The ANDYs – Honoring the Heroes of Advertising

Posted in Advertising, Marketing

We all need heroes and people whose bravery, commitment and skill make us feel like there is good in the world. These people inspire us to do our own best work and be our own best personal and professional selves.

That’s a point not lost on The International ANDY Awards. Launched in 1964 by The Advertising Club of New York, the ANDYs honors creatives who’ve done especially bold and courageous work. That’s an increasingly tall order in these days of tighter ad budgets, more conservative clients, and campaigns that have to address a variety of new media channels while still excelling at old school print and television.

And the ANDYs had great fun with the idea of brave heroes in … Continue Reading

2014 – A Banner Year for NAD Challenges

Posted in Advertising, Direct Marketing, Marketing

As I mentioned a few weeks ago, Davis & Gilbert produced our 2014 Lessons Learned/2015 Practical Advice, where our lawyers highlight major developments in the marketing communications industry, and offer tips and best practices for marketers and their agencies in 2015. To view the full 2014 Lessons Learned/2015 Practical Advice document, click here. This week, I wanted to share with you the section I co-authored on the National Advertising Division of the Council of the Better Business Bureaus (NAD).

Despite recent news reports implying that marketers are taking disputes to federal court with greater frequency, 2014 proved to be another banner year for the NAD. Eighty-eight competitor challenges were filed with the NAD in 2014 – a considerable increase … Continue Reading