January 2013

Guess what? When it comes to the claims you make in your advertising, substantiation matters – a lot. The FTC’s recent Final Order against POM Wonderful (POM) in which it found nearly 40 claims made by POM about its pomegranate juice products to be false and misleading based on the absence of proper substantiation, should leave no doubt that the FTC takes the issue of claim support very seriously. And the fact that most of POM’s challenged claims – claims regarding potential health benefits of the products, including that consumption could help treat, prevent, or reduce the risk of heart disease, prostate cancer, or erectile dysfunction – were not actually express claims, but rather implied claims (from both the wording and imagery of the ad), should be a reminder to us all that the entire advertisement and the overall “net impression” it conveys must be carefully considered.

A little background: In September 2010, the FTC issued an administrative complaint alleging that POM had disseminated advertising materials claiming health and disease prevention benefits from consumption of its pomegranate juice products without having a reasonable basis to make those claims. We all remember those ads, a beautifully shot bottle of POM with a broken noose around its neck and the headline “Cheat Death.” In its defense, POM argued that consumers did not take many of its ads literally, so that any perceived health claims in those ads were not material to consumers, and that when it made express health claims in ads, POM had substantiation for the claims, in the form of surveys and of studies done on animals. The FTC’s position was that all the health benefit claims made by POM – whether express or implied – were material to consumers and therefore required a “reasonable basis” of support, which POM lacked. In addition, where POM claimed to have clinical proof of the claim, the FTC argued that POM had no such proof. The FTC’s position was that for the types of health and disease prevention claims POM was making, a “reasonable basis” of support required a well-designed, well-conducted, double-blind, randomized controlled clinical trial (RCT). In fact it required two RCTs. And for the establishment claims, the FTC’s believed clinical proof also meant RCTs.Continue Reading POM Wonderful

The Federal Trade Commission (FTC) ended 2012 with a bang by adopting final amendments to the Children’s Online Privacy Protection Act (COPPA). For those of us who work in children’s advertising, these long awaited amendments came as no surprise. The final amendment, which goes into effect on July 1, 2013, came only weeks after the FTC issued a report that found that mobile applications have demonstrated “little progress” in addressing concerns about the privacy of children’s data.

COPPA was first enacted in 1998 and requires that operators of websites and online services that are either directed to children under thirteen or have actual knowledge that they are collecting personal information from children under thirteen notify parents and obtain their verifiable consent before collecting, using or disclosing personal information from children. The FTC initiated the review to ensure that keeps pace with evolving technology, such as mobile devices and social networking. In other words, the FTC wanted to ensure that COPPA protects the six year old child you see on the bus everyday playing with his parent’s iPhone.

Fast forward to the present. In a move intended to give parents greater control over data collected about their children online, the recent amendments to COPPA increase its scope, requiring additional types of companies to obtain parental consent before collecting personal information from children under thirteen. Specifically, child-directed sites or services that integrate outside services, such as plug‑ins and advertising networks, which collect personal information, are now covered by COPPA. Plug‑ins and ad networks whose operators have actual knowledge that they are collecting personal information through a child-directed website or online service are also now subject to COPPA. In addition to expanding the kinds of companies under COPPA’s purview, these amendments also expand the types of information sites and services are not permitted to collect, use or disclose without parental consent. Geolocation information, photos, videos, and audio files that contain a child’s image or voice, and persistent identifiers that can be used to recognize users over time and across different websites all require parental consent prior to collection. One important exception to the rule is any circumstance in which an operator collects a persistent identifier for internal operational purposes-for example, site analysis and network communications. In such instance, no parental consent is required.Continue Reading FTC Amends COPPA to Strengthen Children’s Privacy Protections

Spotting industry trends and making forecasts for a year ahead is a challenge, especially in an age of constant change and technological developments.  The way I see it, in terms of trends, it is critical to seek out the best when you need to spot trends and discern the real change elements at work.  After offering my year in review and looking back at the trends in 2012, it’s time to also look ahead.  We are at the dawn of a new year – a year filled with potential and uncertainty.  So, let’s get some clarity on what the future holds.

The Way the Industry Sees It


I had the pleasure of speaking with Marian Salzman, CEO of Havas (formerly Euro RSCG) Worldwide PR, North America, who is viewed as the trendspotter in the world today, about her thoughts for the year ahead and some secret tips to spotting trends for the advertising industry.

I’m always fascinated by your annual trends reports.  Without revealing any secrets, could you explain your process for identifying trends and making forecasts for the coming year?

My thing is pattern recognition, incorporating an eye for the oddball statistic.  There would have been no metrosexual mania, at least not instigated by me, if there hadn’t been a few stunning numbers popping.  Back in 2003, guys began to feel they were no longer guaranteed to be CEO of the bedroom or the boardroom.  They suddenly had a serious interest in the kitchen.   Straight men were increasingly comfortable socializing with gay men.  2003 seems like the dark ages, but it illustrates the kinds of observations that set me off on an investigation.  Ever since Al Gore invented the Internet (kidding) in the early 1990s, I have been a huge information surfer.  Today, this process can be automated for me with services such as Factiva clipping in real time.  Finally, my trendspotting would be much less robust if not for an informal network of trendspotters around the globe who log in all kinds of sightings.  (In fact, I did not invent the word metrosexual—it was invented by journalist Mark Simpson in the early 1990s.  But it was forwarded to me by a colleague and I matched the word to my sighting, Men Get Softer – the rest was history.)  This past year, I launched TrendsU, an e-learning program about how to trendspot, for all Havas staff around the world.  About 550 people from around the world studied the four modules and shared their sightings with me, and even pictures are now compiled (the thousand-words adage never rang more true) on our TrendsU Pinterest board.[/a]

In 2012, you focused on the trend toward achieving a grainy, “Polaroid” effect for digital photography with the popularity of apps like Instagram and Hipstamatic. How do you think the world of apps and wireless will evolve in 2013?

Wireless will be so ubiquitous that discussing it will be almost like talking about the Internet or even the dial tone.  I agree with a recent post of yours that it will be very interesting to see how the advertising, marketing and communications industries will adapt to a wireless world.  I remember helping on a pitch for IBM back in the dark ages for which we interviewed people about the future, and Kevin Kelly, the co-founding editor of Wired, talked to us about the future like it would happen a week from Thursday.  Well, it’s finally a week from Thursday, and always-on, constant connectivity is the new normal.  People take mobile devices to bed, to the toilet and onto airplanes and assume, voilà, they’ll be connected because connectivity is a given.  Back in 1993, Kelly told us connectivity would be like air or water.  Apps for 2013 are like software was a decade ago, except that the innovations are coming every 22 seconds.  Before you know you need an app, there it is.  Simplification has been a trend for 15 years, and apps are the epitome of simplification.  Branded apps are a given.  Tablets are making apps even more essential.  I want to do more on the fly, more quickly, and an app ensures I get it done, seamlessly.  The app I expect next year is for voting – the most prehistoric thing we still do without much connectivity.  Seriously, in 2013, you want me to walk to a school and fill out some paperwork and pull levers?  How very last century.  Once Americans can vote online using apps and smartphones or tablets, expect a much more engaged population to be that much more connected on issues and topics that matter to them.

Continue Reading What’s Next in 2013: A Lesson in Trendspotting with Marian Salzman

Ah, December 31st.  Each year, the ball drops in Times Square, and people count down excitedly from ten as they plan their resolutions for the New Year, and clink champagne flutes to toast to the year ahead.  New Year’s Eve is all about glitz and glamour, from the sparkle of the Times Square crystal ball to the abundance of black tie affairs.  New Year’s Eve is the top and the most festive of holiday celebrations.  The holiday has become synonymous with a certain alcoholic beverage in particular: champagne.  Bubbly is the drink of choice for party-goers.  And leading up to this night, champagne brands are busy marketing to have their corks popped most on New Year’s Eve.

The Way I See It

  • I see champagne advertisers reflect the mood of the audience to ensure that its presentation is true to both the holiday and how consumers feel based on the economy and current events.
  • I see brands continue to focus on fun and romance. The holiday is synonymous with romance – kissing at the stroke of Midnight, planning a proposal for the big night, or even a New Year’s Eve wedding.
  • I see champagne marketers continue the shift towards advertising in digital and social in new and unique ways.
  • I see champagne brands continue to increase sales and market penetration beyond simply the traditional buyers and holidays.

The Way the Industry Sees It


I sat down with Jon Potter, Executive Vice President of Brands at Moët Hennessy USA, to discuss marketing around New Year’s and effective campaigns for the champagne market.

There’s no question that champagne is the drink of New Year’s Eve. But how did it become that way?  What role does marketing and advertising play in terms of ensuring champagne “owns” the holiday? How do you continue to make champagne relevant for each new generation?

For as long as people have been socializing together, having fun and enjoying each other’s company, champagne has been present.  And what other night of the year embodies that better than New Year’s Eve, when friends and family join together to toast the past and look ahead to the future.  Champagne is the quintessential drink to mark occasions big or small.  As Napoleon is quoted as saying, “Champagne – in victory you deserve it; in defeat you need it.”  Today, consumers have more choice than ever when it comes to champagne, wine and spirits so marketing plays an important role in keeping champagne top of mind and relevant for consumers whether that is through limited edition packaging, special events or unique partnerships.

With champagne typically viewed as a luxury good, how do champagne brands remain competitive in a tough economic environment? Did the economic downturn have an impact on champagne sales in recent years?

The recent economic downturn was challenging for many sectors of the luxury market.  However, we are fortunate that the Moët Hennessy portfolio of champagnes is second to none.  Our champagne houses have incredible heritage and an uncompromising focus on quality that consumers know and trust.  This is important in times of uncertainty when consumers are more cautious and less likely to try an unknown brand.

Continue Reading Toasting to the New Year