Legal Marketing Resolutions for 2022 — Better Coffee for All

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I made my last New Year’s resolution 10 years ago in 2012. Technically, it wasn’t a resolution; maybe it was more of a lifestyle choice. I vowed that I would no longer drink the coffee that was sold in the Federal Trade Commission’s (FTC) now-defunct Top of the Trade cafeteria. It was a great place for some items (such as spanakopita), but let’s just say the coffee and my stomach did not get along. Instead, I prefer suggesting resolutions to others, which makes me less than popular with some friends this time of year. So here goes for 2022 — my resolutions for you, my loyal readers.

Compliance Checkups for All — So maybe you aren’t one of the 1,800 or so companies that received a Notice of Penalty Offense letter from the FTC in 2021. Well, that doesn’t mean smooth sailing for you. Whether the FTC will be able to use the letters in a civil penalty action remains to be seen, but the consumer protection principles set forth in the letter are well-established. You should make sure you are complying even if you weren’t one of the lucky 1,800. For example, it is a great time to take a closer look at influencers and endorsers who may be promoting your product. Are they clearly disclosing material connections to your company? Are they making claims for your product that they shouldn’t be making? Regardless of whether you received an FTC letter, it’s a good time for a compliance checkup.

Review Your Reviews — It’s 2022 and online reviews continue to play an increasingly important role in consumers’ purchasing decisions. It is because of this importance that law enforcers are more interested than ever. And it’s not just about fake reviews or inadequately disclosed incentivized reviews. How are you presenting reviews on your website or app? Are you treating the five-star reviews and the one-star reviews the same, or are you quietly providing extra exposure to the reviews that tout your fabulousness? Take a close look at your policies and procedures on posting reviews.

Training for All — No one likes training. Very few people receive schedulers for training sessions and think, “Awesome, I’m going to get trained by some lawyers.” And no matter how much time and effort you spend making your training short, effective and even entertaining, you will be lucky if one person thanks you for that awesome training session. So why do it? Well, when law enforcers come knocking and ask about your marketing practices, you can be pretty sure that they will also want to know what sort of training you do to make sure that your advertising and marketing are legally compliant. And in this context, set it and forget it just doesn’t suffice. Having annual reminders of the legal guardrails that exist with respect to marketing and advertising practices helps you in two ways. First, it’s important to demonstrate your commitment to compliance. And second and more important, a trained workforce is far more likely to spot potential issues before they become problems that keep you awake at night.

Using Data for Marketing Purposes — We all know that advertising and marketing are becoming more data-driven every year. But make sure you know what data you are relying on, how it was collected and what consumers were told about that data collection. If consumers agreed to provide their information for one purpose and that data is subsequently used for advertising or marketing purposes, that’s a big red flag. And if its kids’ data, that’s an even bigger red flag.

Be Careful Slicing and Dicing the Data — Having clinical data to support your advertising claims — particularly health claims — is important. But data is something that can be sliced and diced and, yes, manipulated in many different ways. An FTC case from 2021, BASF, serves as a reminder that post hoc analyses of clinical study data might initially give you the results you want, but may land you in hot water. The FTC did not look kindly on efforts to “subject[] the data to ‘post hoc’ analyses of different subgroups of test subjects, in an attempt to find a positive selling message.”

Continue to Be Awesome and Not Boring — I know these blogs can sometimes be a bit of a downer, despite our best efforts. What do you need to do to avoid tangles with law enforcement or being confronted by competitor challenges? That is all important — but equally important is the joy that is clever and creative advertising, whether it’s a Twitter account that develops a reputation for outstanding clapbacks and roasts or seeing what develops when a certain large green owl gets its moment in the spotlight. Please continue to keep us entertained while being compliant. And enjoy better coffee in 2022.

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