When we think about advertising law and regulation, we typically focus on Washington, D.C. and the federal regulatory agencies – for example, the FTC’s guidance, including in many industry-specific areas, the FDA’s regulation of food products and cigarettes, and the Consumer Financial Protection Bureau’s efforts of late in the financial services sector, among others.  But state Attorneys General are also very active in the enforcement of consumer protection and advertising laws and regulations, both independently within their jurisdictions and jointly through multi-state investigations and actions.  The increased presence of many advertisers in digital and social media does not have geographical borders, and state regulators can take issue with the advertising claims and methods used in these new media platforms along with more traditional ones.

State Attorneys General offices use consumer protection laws and regulations to help shape public policy and improve communications to consumers, but they are also subject to, and driven by, the partisan politics of elections and the complex webs of relationships that operate day-to-day in state governments.  This can mean national advertisers may face state regulation from a number of different angles.

The Way I See It

  • I see state Attorneys General becoming increasingly active in enforcing consumer protection laws, with increased initiatives to regulate online, mobile, and social media.
  • I see state regulators initiating investigations and taking action in response to national advertising campaigns, which have an impact on consumers within their states and which may not comply with the letter of each particular state’s unique laws and regulations.  There is a greater need than ever to carefully consider these nuances when vetting national advertising materials.
  • I see a complicated political structure in each state when it comes to interpreting regulators’ motives and actions, and a symbiosis between the actions and interests of federal regulators and their state counterparts.

The Way The Industry Sees It

I sat down with Al Shelden, Ex-Senior Assistant Attorney General of California who was in charge the state’s Consumer Law Section, to get a state regulator’s perspective on some key consumer protection issues.

 

As a former state regulator, how important do you think state Attorneys General are for shaping regulation of national advertisers and big brands?  How did you view national advertising campaigns during your tenure in California?

The state Attorneys General have a long history of shaping the regulation of national advertisers and big brands.  Starting in the ’80s and ’90s, the states were the first to challenge “health” advertising by cereal, fast food, and vitamin companies.  We also were the first to challenge the use of deceptive environmental claims in advertising.  The FTC and Congress followed.  Today the states are leading the way in actions against pharmaceutical companies for off label promotion of drugs.  The states’ actions and adoption of legislation against the deceptive use of sweepstakes and other product promotions also preceded federal action in these areas.  Likewise, actions brought by the Attorneys General involving improper telephonic solicitations and advertisers’ improper use of information they obtained from customers lead to the adoption of telephonic seller registration, do not call and privacy protection laws, first on a state level and then on the national level.  Since national advertising in California affects tens of million California residents, we always viewed it, and still do, as “local” advertising, meaning that any advertising which is used to obtain business from California residents must comply with California law.

What has been the historical relationship between the Federal Trade Commission and state Attorneys General?  What is the current relationship like?

Historically, the relationship has been one of benign neglect, conflict, and cooperation.  In the 1960’s, when those states that did not yet have consumer protection laws started to adopt them, a large portion looked to the FTC and the FTC Act.  During the ’60s and ’70s, the FTC and the Attorneys General “got along” but seldom regularly worked together on issues.  Starting in the early ’80s, things between the Attorneys General and the FTC became somewhat “testy” when, under Chairman James Miller III, the FTC adopted its “deception” and “unfairness” policies.  Many states thought these policies incorrectly defined FTC case law requirements for advertisers and argued they should only be viewed as the FTC’s own enforcement guidelines. Because some states’ laws tie the meaning and interpretation of their laws to FTC regulations and decisions, there was great concern.  One state, Missouri, changed its consumer law so that it was no longer tied to FTC law.  Things remained cold until Janet Steiger became FTC Chair in 1989.  She worked tirelessly to reach out to the Attorneys General and convince them that going forward the Attorneys General and the FTC needed to be trusting partners who should be working together toward the same goals.  Her term marked the true beginning of the Attorneys General and the FTC working cases jointly, sharing information and deferring to one another in the proper circumstances.  Improving relations continued under Robert Pitofsky’s tenure and while there have been periods of ebb and flow since then, things again were very harmonious during Jon Leibowitz’s term as Chair and David Vladek’s term as Head of the Bureau of Consumer Protection. There appears to be no reason to think that such cooperation will not continue during the term of Edith Ramirez as Chair.

What do you foresee as the role of state regulators in regulating advertising and advertisers moving forward?  Do you think they will be more or less involved?

State Attorneys General are going to continue to be very involved in regulating advertising and advertisers for years to come.  In a society driven by consumer demand, consumers are consistently bombarded with advertisements for the latest model, the coolest model, and the most important product or service to have.  And the bombardment comes in constantly-changing media.  Changing media does not mean that advertisers can engage in deceptive or misleading advertising by failing to make full disclosure.  Unfortunately, not all advertisers, regardless of the media used, are as truthful as they should be when promoting their products and services.  I think it is safe to say that all Attorneys General, regardless of political affiliation or belief, believe that fraud is fraud, and when their citizens are victims of fraud, they will take action to protect them.  State AG offices are more “on the ground” than the various federal regulators are and so we often hear about scams and deception in advertising before they do. This is even true when the advertisement/promotion is national in scope.

What do you think the role of state regulators should be in regulating the new frontiers:  digital, mobile, and social media?

As my mentor once said to me, “There’s too much work for us to do and we can’t get to everything, so we must pick out the important things to work on.”  That there is “too much for us to do” holds true even when one combines the resources of federal and state regulators.  The “new frontiers” are among the arenas wherein consumers can be most taken advantage of.  Thus, both the feds and the Attorneys General must work, and, when possible, work together to regulate these new media.  “New frontiers” not only attract legitimate businesses and advertisers, but they also, unfortunately, attract a higher percentage of the unscrupulous than do “old frontiers” where the laws are already clearly defined.  The laws of deception hold true in these new frontiers as they do in the “old.”  It is important that the Attorneys General, with their “on the ground” information from consumers be involved in ensuring that simply because new media is used does not mean that those who use it to sell products and services are exempt from complying with the law.  For example, actions by the Attorneys General involving privacy rights have played a large part in developing a national legal framework to insure that businesses protect citizens’ privacy rights.

What is the coolest object in your office?

Take your choice: A mint condition signed San Diego Padres 1998 World Series baseball; a die cast model of a 1964 Corvette Sting Ray that a couple of my paralegals gave me as a 40th birthday present (which was not in 1964); and a wooden moose, given to me by an esteemed colleague, that when one lifts its head, dispenses M&M’s from the other end.

Ronald R. Urbach is the Chairman of leading advertising law firm Davis & Gilbert LLP