Book of Tens: Legal Predictions for 2010

By Published on .

OH, BEHAVE!
The competing sides on the behavioral-marketing wars will continue to skirmish with no peace in 2010. But by fourth quarter, the FTC and state attorneys general will join the fray, upping the stakes. Advertisers, technology companies and ISPs will need to join in a united strategy if they hope to avoid burdensome regulatory rules.

RESULTS WILL VARY
The FTC will test its rigor in actions against marketers under the new testimonial guidelines as they try to rein in claims of "typical results" and uncontrolled blogging by CEOs, celebrities and astroturfing employees.

HOLDING A TIGER BY THE TAIL
After years of tolerating public high jinks by their celebrity endorsers, advertisers will tighten contractual standards, demanding better behavior after the realization that tabloid coverage of their endorsers isn't a smart return to shareholders.

POP TO PLACEMENT POP-UPS
The FCC will finally issue a ruling on product-placement disclosures in TV programming. While the new rule will require more disclosures, it won't go as far as pop-ups. Even the FCC knows consumers would rebel against pop-ups interfering with their entertainment.

FDA LIGHTS IT UP
The suit against the FDA has set the tobacco industry in a full defense mode. But this time, the marketing community will unite behind the First Amendment, finally realizing that whatever the feds can do to tobacco they can do to others. Will cholesterol, caffeine, fat and sugar be the next illegal drugs?

SOCIAL-MEDIA MIGRAINES
In 2010, marketers will migrate millions in media dollars from traditional platforms to social-media platforms, including their own Facebook pages, YouTube channels, and Twitter tweeters. But how many friends can you have and how risky are you willing to be with your copyrights and trademarks?

BATTLE FOR THE BANKS
If the administration is successful in establishing the Consumer Financial Protection Agency, the new consumer watchdog for banks, look for Washington turf wars and regulatory chaos between the FTC and the CFPA flexing its new muscles to impress consumers and Congress -- dual battle fronts the already stressed banks really need.

EMERGER.COM
Acquisitions in the ad biz will rise as the economy improves. While that's hardly earth shattering, the game will change as more of the deals follow the 2009 trend and turn to auctions and e-rooms overseen by investment bankers -- agencies to the highest bidder. Are sales on eBay next?

BEATING UP THE BEST
The advertising industry's self-regulatory programs have been lauded by congressmen and FTC chairs. But 2010 will show that they have short memories as they attack self-regulation with demands for legislation and rule making targeting food, behavioral targeting, green marketing and children's advertising.

MUCH ADO ABOUT NOTHING
Despite claims and consternations to the contrary, suits for comparative advertising, copyright infringement, trademark dilution, breach of privacy and publicity, and sequential liability will grow no more than they have for years, lining lawyers' pockets far more than they deserve lines in the press.

ABOUT THE AUTHOR
Douglas J. Wood is partner, Reed Smith LLP
In this article:
Most Popular