I arrived in Chicago yesterday to attend The 35th Annual Marketing Law Conference hosted by the BAA/PMA “Mastering the Next Wave of Marketing Law”. Today was the first full day of sessions at the Michigan Ave. Marriott which will continue through tomorrow. Founded in 1911, the BAA (Brand Activation Association), originally known as the PMA (Promotional Marketing Association) is made up of brand marketers and their counsel to advocate and provide thought leadership and best practices in this ever-changing industry. The BAA team stated that this year the number of attendees has reached an all-time high of over 500, which when combined with the sponsors and speakers, totals around 700.
This year’s event features sessions from top regulators along with executives from a variety of top law firms or from major brands. They are all here to updates us on the laws that directly impact the work we do for our clients in the areas of promotional marketing, sweepstakes/contests, social media, advertising, digital, mobile and privacy. With over 100 major brands represented, 110+ speakers, 40+ sessions and 15 major roundtables, we are all here to learn about the emerging trends that are crucial to our business.
Bonnie Carlson, the association’s long-time president and CEO, kicked off today’s event with a welcome message and an introduction to this year’s co-chairs. We then were treated to another intense review by Linda Goldstein, Partner, Chair from Manatt, Phelps & Phillips, who is also known as the Sweepstakes Diva! Linda’s session is the most anticipated of the conference which this year was titled “Master Class: Sweepstakes, Contests, Games and other Brand Activation Tools” in which she covered a great deal of crucial content in an hour’s time. To add a real-life example to these details, Linda created a video featuring a fictitious company called Lemonatt that started out as a simple lemonade stand run by two kids. They quickly learned the legal complexities of running and marketing a business as they looked to grow.
Linda again reviewed the differences between a skill based contest and a game of chance (sweepstakes) and was quick to point out that the only real exceptions to the no purchase necessary rule is postage and Internet access. Even though most of us have unlimited mobile data plans, data charges still are not officially defined as an exception. Many brands however have been taking the risk and not including an AMOE in their entry requirements. Hopefully soon data charges will be an official exception just by the fact that more and more companies are taking the risk. But unfortunately, until then, best practice is to include an AMOE which is not what we really wanted to hear!
Other highlights Linda covered that when running a user-generated content (UGC) contest there is a different set of criteria when consideration is an element. For example, you need to include a qualified panel of judges to review the content which in most cases means that public voting doesn’t comply. Also, some promotions may be a hybrid between a game of skill and a game of chance. Linda recommended looking at the game as a whole first and then determine which is the dominant element. Also she stated that if you eliminate prize and just allow participants to earn rewards for playing a game, then these laws don’t apply. However, these rewards can not have any value outside the game, if so than all laws do apply.
Another thing Linda said we must keep in mind is that whenever you include a refer-a-friend element into the mix this is subject to CAN-SPAM. Many marketers want to include incentives for sending emails to friends or inviting them to participate on their Facebook page. Just remember that you cannot give entries to people by liking, sharing, or commenting on their personal Facebook page. This is also against Facebook’s promotional guidelines.
Pinterest’s new promotional guidelines were also mentioned which are still not very clear. Pinterest states that you should not ask people to pin a specific image. Linda advised that instead you can offer them a choice from a selection of images to chose from. Linda also stated that Since Pinterest announced these new guidelines she was not aware of any brands that have been approached by Pinterest to change or take down their promotion. In a later session titled “Social Media Hot Buttons”, McDonald’s counsel, Edward Lance, stated that he recommends to his clients that they only allow the pinning of images from their own brand’s content, not from another website, regardless if the other sites have a Pin It button. This doesn’t always mean that the original source has all the rights to use the image. Amanda Vann Vaulkner, counsel for Coca-Cola, stated that even if it is your own image, you may not have the full rights either.
Kenneth Florin from law firm Loeb & Loeb followed Linda’s presentation with an interesting take on the Future of Advertising: How Technology and Innovative Platforms are Transforming the Delivery of information. Ken reviewed some of the key ad targeting platforms and shared a video in which he asked a few young children their thoughts about Privacy. Their answers of course were pretty precious. One young boy started talking about “Pirates”. Another young girl said she would like to receive messages about “boys”.
Ken also shared a Google glass demo video which could be a look at our future. He had a rough design sketch that’s in development of a temporary tattoo on a person’s neck that would read the person’s vocal cords and be able to communicate with the glasses. Also supposedly in development from Microsoft is an app that can gauge what your mood is by your smart phone messages and serve up music from Spotify to fit your mood!
We were treated to a delicious lunch in the Marriott ballroom and then a great keynote from Mario Alioto who joined the “lunch with lawyers” and spoke to us as “the marketing guy who’s been with the San Francisco Giants for 40 years since starting out as a bat boy”. I’ve been lucky enough to have attended a game at Candlestick Park, so I can relate to what a special “Ball Park’ it was. Thanks Mario for sharing some of your stories about the history of the club.
The afternoon consisted of a session on Mobile Marketing and an overview of the new TCPA rules which now require express written consent for certain text messages and other calls. That was pretty heavy detail to comprehend right after lunch. The rest of the afternoon we had a choice of a variety of break-out sessions to choose from. But now one of the best features of the conference, the famous Cocktail Party. This is one of the big draws of attending the conference. So I’m now looking forward to seeing some old friends and meeting some new ones. Follow the tweets at #BAALaw2013!