Don't Know What Day It Is
COVID, the FTC, and Advertising Law
One of the byproducts of our work at home/stay at home world is that it’s much harder to distinguish between a weekday and a weekend. I work all seven days if there’s work to be done, I do laundry all seven if there’s laundry to be done (and there seems to be exponentially more of that for some reason). The routine is even more routine than a “normal” year.
This slow down of regular life has also forced us to see where the cracks in the system are - whatever your “system” is. Maybe you’ve made changes to your time management because now, you also have to teach algebra to your middle schooler. Maybe you’ve seen an employee rise to the current challenges and become more valuable in your organization, where others have not. In any system, there is always room for improvement.
From an advertising law standpoint, we too have had to address some cracks in the system. We now filter traditional, established advertising law principles, through the lens of a pandemic. The virus has fundamentally changed how the Federal Trade Commission views a “reasonable” consumer”, which is the representation of the audience an ad is trying to reach. Sensitivities that didn’t exist months ago exist now. What a reasonable consumer sees in an ad today, may not be what they saw before. Funny yesterday could be tone deaf today.
Truth in advertising no longer applies just to what an advertiser says specifically about its product or service. We now have to ask ourselves if the charitable donation or other “cause” a brand is advertising is in fact truthful. If Nike says they’re donating a billion dollars, we as consumers expect that statement to be true.
Influencers, once out and about seeking that perfect exposed brick cityscape, are posting to an even more captive audience and all signs point to increased usage of those small screens. Many experts in the field see this as a huge improvement – influencers are even more aware of their audience because there is a shared reality that didn’t exist pre-corona. Exposure is higher as well so it’s extremely important for influencers to continue to provide the required disclosures and disclaimers.
Ed Tech, otherwise referred to at my house as a basic survival tool, is another area of focus as schools continue to transition to online learning. In response, the FTC has provided additional guidance on COPPA – the Children’s Online Privacy Protection Act. COPPA applies to websites and other online platforms geared toward children under the age of 13 and regulates the collection of data from children by requiring certain security measures and parental consent, among others. The FTC, under very narrow circumstances, allows schools acting on behalf of the children’s parents/guardians, to provide consent for the collection of their students’ personal information by ed tech providers only for educational purposes.
The production of new content – photography, film etc… - has slowed so advertisers and marketers are using old content which may or may not be licensed for that purpose. There is a risk that what you post or use may not be licensed for a specific use. “Free” images are rarely free. Brand marketing is not free speech- it’s commercial speech and using an image may require proper licensing. We encourage our clients to review their content licenses prior to using existing content that had previously licensed, and in general, to carefully read and vet any usage terms for images.
Why this Matters: So many aspects of the advertising and marketing world have adapted to and continue to adapt to the new reality and the new rules. Even when we are no longer hyper concerned about the virus however, we will have had an experience that permanently alters many parts of business as usual.