Book of Tens 2011

Top 10 Legal Issues for Marketers in the Coming Year

Keep These Hot-Button Issues on Your Radar for the New Year

By Published on .

Self-Regulation at the Crossroads
Great strides were made in kids' advertising, food marketing and online behavioral tracking. The Children's Advertising Review Unit is self-regulation at its best. Marketers in the Food Initiative made practice changes legislatures couldn't pass without violating the First Amendment. About Ads is state-of -the-art in tracking data on the internet. But Congress and the FTC are impatient, and tensions could boil over in the coming year.

Celebrity Embarrassments
A surge in unseemly social-media behavior by celebrity endorsers indicates an affliction of bad judgment. It will get worse before it gets better, and brands will be embarrassed to the point of terminating contracts. Smart marketers will ensure that agreements allow them an escape from edgier celebs.

Clouds Ahead
The financial incentives make it inevitable that marketers will move their data and applications to the cloud. But with that transition comes the headache of security and privacy breaches. Once moved to a service in the cloud, control of data is reduced and risk increased. Will all the cost savings be lost to class-action lawyers?

Social Media Recalculated
The gold rush has been startling. Marketers have flocked to online services, including Facebook and LinkedIn, with no measurable ROI, at least not by any industry standards. But a study on digital measurement by the ANA, 4A's and IAB might finally lead to a currency everyone can agree on. Or it might not.

Watch for a classic Washington standoff as the Federal Trade Commission parries with the new Consumer Financial Protection Bureau over regulating financial-services marketing. Dodd-Frank created the CFPB to watch out for consumers and the financial biz. But Congress left the FTC with jurisdiction, too. They're supposed to work out an agreement on who regulates what. And no doubt they will do that . But then come appropriations. The honeymoon will end there.

Commercial Interruptions
Negotiations for a new collective bargaining agreement with SAG and AFTRA begin in October 2012. The current contract ends in March 2013. The collision between production dollars moving to new digital platforms not covered by union agreements, and the growing pressures on union pension and health funds, creates a potential for disputes that could lead to an impasse. Advice: Produce all you can before March 2013.

Washington Wizardry
Four federal agencies have jointly called for a voluntary end to children's-food advertising that doesn't promote a healthy diet. The industry replied that such a statement by powerful regulators was tantamount to legislation. The FTC backed off and said it would make revisions, but don't count on enough to comfort marketers.

Data Nirvana
Just as we were getting used to the web's infirmities and frustrations, seeds of change were planted in 2011. In the face of literally running out of numbers needed to most efficiently operate the internet, the IPv4 protocol was updated to IPv6, allowing 340 undecillion different numbers so every device can be uniquely tracked. The potential! The paranoia! The battle begins.

Time to Toll the Trolls
A troubling development: patent trolls suing advertisers for infringing obscure or never-used patents. Based primarily in Texas, they're extracting millions in settlements. Advertisers increasingly looked to agencies for indemnities this year. But without insurance, a serious disagreement developed over where responsibility lies. That's catnip for the trolls, as conflict breeds settlements.

Battle for Burdened Brands
It's too soon to tell if ICANN will succeed in releasing hundreds of new, top-level domains, aka TLDs (the word to the right of the "dot" in an internet address), or if ANA's international coalition will stop ICANN. Billions are at stake. If ICANN succeeds, marketers face protecting brands at $185,000 each and enhanced policing of cybersquatters. May the Force be with the ANA.

Douglas J. Wood is partner of Reed Smith and general counsel of the Association of National Advertisers.
Most Popular