The Legal Survival Guide for Marketing in 2017

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With 2016 in the past, it's time to look forward and make resolutions for the coming year. What should advertisers strive for in 2017? Here are the usual goals -- staying fit and healthy, learning something new and managing stress better -- but seen through a legal lens.

Stay fit and healthy

2016 demonstrated that the focus on health-related claims has not abated, with new false advertising suits challenging everything from deli meat to oatmeal to juice. Health claims remain a regulatory target -- particularly the words "organic" and "natural" -- so advertisers should recognize the risks when trying to reach health-conscious consumers. And as wearables increase in popularity, so have the number of lawsuits challenging claims about the accuracy of heart rate measurement and sleep tracking, to cite just two examples. Consumers aren't the only ones flexing their muscles in the health-related claims area. The Federal Trade Commission has instituted numerous actions regarding dietary supplements claims and false promises of weight loss (ending the fad of green coffee products), and it challenged "natural" claims in the context of personal care products for the first time.

Spend less, save more

Retailers hoping to make some money with discounts and sales should brace themselves for litigation in 2017 over claims of "deceptive pricing." No longer are such suits leveled only against outlet stores. They now include retailers large and small, local and national, online and brick-and-mortar locations. They have been accused of creating "phantom markdowns" and setting false original prices in order to tout "sale" prices to lure consumers with big deals. The Los Angeles City Attorney filed suit against four major national retailers in December, ending a year in which dozens of consumer class actions have been filed over purported discount prices against entities ranging from Columbia Sportswear Company to Harbor Freight Tools. A carefully considered sale price could end up saving an advertiser more money in the long run.

Learn something new

A new year is a great time to learn something new. For advertisers, a deep dive into the FTC's Testimonial and Endorsement Guides would be time well spent. The agency, state attorneys general and the National Advertising Division have vowed to monitor compliance to ensure that the required disclosures have been made when an endorsement appears. With multiple complaints filed by consumer groups requesting that the FTC take action against social media influencers from the Kardashians to "micro-influencers" with smaller followings, there has never been a better time for advertisers to familiarize themselves with these guides. Also on the recommended reading list: the FTC's "Native Advertising: A Guide for Businesses." As native advertising continues to increase, marketers must know the appropriate standards that distinguish sponsored content from independently created and produced content. Last year saw the agency's first native advertising action in a case against Lord & Taylor, when the national retailer launched a social media campaign that the FTC said ran afoul of its guidance because it failed to disclose that native articles and posts were paid commercial content, and that fashion influencers used in the campaign failed to mention they were paid and received free product. The FTC's consent order should be added to the New Year's reading pile for more details on how to set up a compliance program.

Unplug and disconnect

For many, the holidays offer a chance to spend time with family and disconnect from devices and social media. For advertisers, a valuable resolution would be to focus on privacy and data security in the coming year. Last year was filled with headlines about privacy violations, from a settlement in the FTC's case over the massive data breach at a major dating site to concerns about the insanely popular Pokémon Go app's information sharing. Looking ahead, businesses must keep privacy top of mind in 2017. The FTC's authority in the area of data security has been confirmed by the Third Circuit Court of Appeals. Moreover, advertisers may face an additional privacy regulator next year as the Federal Communications Commission passed new privacy rules that require internet service providers to obtain opt-in consent before sensitive data (including browsing and app usage history) can be collected and used for ad-targeting purposes.

Manage stress better

Who doesn't want less stress in their life? To decrease the chances of potential problems, advertisers should be proactive over the next 12 months by working on training and compliance. Consider reading "Protecting Personal Information: A Guide for Business" or "Data Breach Response: A Guide for Business," in which the FTC offers three simple steps (secure your operations, fix vulnerabilities, and notify affected parties) that should be taken before moving forward in the wake of a security incident. A refresher course could also prove beneficial. Consider re-reading the agency's Green Guides to avoid issues with environmental marketing, and the Dot Com Disclosures to ensure that advertising claims made on smartphones and social media contain the necessary "clear and conspicuous" disclosures to avoid consumer confusion and deception in the marketplace. Also, if applicable, reread the new Enforcement Policy Statement on marketing claims for over-the-counter homeopathic drugs, in which the agency explains it intends to hold the products to the same standard as other OTC products making similar claims. Advertisers recognizing the value of best practices will face a less stressful 2017.

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