On the latest edition of Ad Age's Marketer's Brief podcast,
Goldstein dishes out advice for brands to avoid legal exposure in
this increasingly litigious environment. And she describes when
brands should sue competitors if they think they have been wronged.
Her biggest rule: Don't file a lawsuit unless your own house is in
order. "When you go into federal court, there is always a risk of
counterclaims against your own advertising," she says. "And so it's
very important before any company goes into court to take a look at
their own advertising and see if they would be putting any of their
own advertising claims at risk."
Ad lawyers are keeping a close eye on several recently filed
false advertising lawsuits involving big-spending marketers:
- In late March, MillerCoors
sued Anheuser-Busch InBev over its Bud Light ads that mock
Miller Lite and Coors Light for using corn syrup. MillerCoors
alleges that the ads are meant to deceive beer drinkers into
thinking its beers contain high-fructose corn syrup, which has long
had negative connotations with consumers.
- Meanwhile, The Clorox Co. recently sued Reckitt Benckiser over
a series of comparative ads pitting RB's Lysol brand cleaning
products against Clorox products. One of the spots claims that a
Clorox spray leaves behind "harsh chemical residue." But Clorox
says the campaign is misleading because it compares Clorox and
Lysol products that are not in the same category; like a
higher-strength Clorox spray against one from Lysol that is meant
for lighter use.
- A legal battle is also brewing in the wireless industry where
Sprint sued AT&T, alleging that the carrier's "5Ge"
marketing falsely portrays the availability of fifth-generation
mobile technology, commonly known as 5G.
In each case, the marketers opted to go to court instead of
using the self-regulation system put in place by the Council of
Better Business Bureaus' National Advertising Division in which
brands can submit claims against each other.
The NAD bills its system as less costly and
burdensome than going to court. But Goldstein notes that NAD
cases will not result in monetary rewards for the challenger if ads
are found to be misleading. So "some brands feel they need to go
for the bigger guns and the bigger impact of a Lanham Act
challenge," she says, referring to the name of the statute
governing false advertising lawsuits.
On the podcast, Goldstein also discusses the potential legal
pitfalls for subscription-based brands. Marketers like Netflix have
popularized the model of paying for services on a month-to-month
basis.
Even the car business is adopting it.
But brands can get into trouble if they don't share all the
purchasing obligations up front. "You have to very clearly tell the
consumer that you are in this until you cancel," Goldstein says.
And brands must "get consent in a way that indicates the consumer
understands what they are signing up for and then you have to give
them a really easy way to cancel."
We also chat a bit about how the spectacular failure of the Fyre
Festival could have a lasting effect on influencer marketing. Hint:
it could lead to more regulations.
