This past weekend, the Brand Activation Association (BAA), a division of the Association of National Advertisers (ANA), held its 38th Annual Marketing Law Conference in Chicago, Illinois. The author, along with two other members of Drinker Biddle’s branding team, attended the conference, which is widely regarded as one of the top conferences on marketing and advertising law, with deep practical legal content. The conference was co-chaired by legal counsel from Coca-Cola, Wells Fargo, and Twitter, and speakers included representatives from Airbnb, American Express, Buzzfeed, Expedia, Facebook, Intel, Lyft, MasterCard, McDonalds, Procter & Gamble, VISA, AT&T, WPP, Mondelez, Sears and at least 30 other companies.
Nearly all of the major players in the advertising and marketing space attend the annual BAA conference, not only to network (there are ample opportunities to do so), but also to take in the vast educational content. Over the course of the 3-day conference, a wide variety of topics were covered, ranging from basic sweepstakes and contest review to complex loyalty programs and gift card issues. Some of the more unique offerings included breakout sessions on mobile marketing, advertising disclosures, consumer fraud class actions, third-party IP licensing and clearance, ambush marketing, and even a preview of the future of “augmented reality” games, like Pokémon Go, which recently took the mobile app world by storm (although, in September 2016, it was dethroned as the highest-grossing app in Apple’s app store).
Especially hot topics this year were “native advertising” – i.e. advertising disguised in a format to resemble the editorial content of the platform on which it appears – and “real time marketing” – i.e. quick-turnaround marketing in response to specific events. As the world of social media goes, so too go these topics. With numerous platforms now to choose from, advertisers can be tempted to target consumers with advertising across more than one platform, and while the jury is still out on this practice, the overall sentiment is to advise your marketing team to proceed with caution and to check in with legal counsel regarding possible ramifications.
If there was one crystal clear takeaway from the conference, it was that the fundamental nature of advertising and marketing is rapidly evolving (insert Pokémon Go joke here), and if the legal profession cannot keep up, it will quickly find itself left in the dust. Traditional advertising and marketing rules surrounding clearance, disclosures, and endorsements, for example, require rethinking in the new media context.
The conference, fortunately, was not affected by the public protests taking place simultaneously, but needless to say, they created an interesting backdrop, and there was a visible pallor in many of the attendees on Wednesday morning, most of whom (like the author) stayed up late the night before to watch the conclusion of the presidential election.
Chicago, we will be back next year.
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