As we finish up 2020, here are some tips from members of the Frankfurt Kurnit advertising group about some of the important issues that marketers should focus on in 2021. We wish you all of our best for a very happy new year!
Shely Berryuse (and not sharing) of precise geolocation data (i.e., locating a consumer within an area of a circle with a radius of 1,850 feet), including the use of such first party data for advertising purposes. While the CPRA won’t take effect until January 2023, we will start to see action from a new California agency, the California Privacy Protection Agency, that will be constituted almost immediately and will start to promulgate regulations in 2021. Covered businesses will need to be prepared to start complying with respect to personal information of California residents they collect beginning on January 1, 2022, so 2021 is a year for some serious strategic planning. Outside of California, we anticipate several comprehensive privacy bills to be proposed at both the state and federal level. The possibility of another comprehensive privacy bill becoming law is just one of the many exciting things to look out for in 2021!
-- Although the California Consumer Privacy Act ("CCPA") became effective on January 1, 2020, and the California Attorney General started taking enforcement action in July 2020, Californians voted in favor of a ballot initiative to amend the CCPA in November 2020. The California Privacy Rights Act ("CPRA") will replace the CCPA on January 1, 2023, and will cover all personal information of California residents collected beginning on January 1, 2022. Under the CPRA, a consumer has the right to limit the sharing of personal information with third parties for cross-context behavioral advertising via a “Do Not Sell or Share My Personal Information” link. In addition, consumers will have the right under the CPRA to limit the
-- In addition to drafting force majeure and other “break” clauses with more detail, I expect to see more performance-based marketing agreements going forward, given the need to keep a watchful eye on budgets. Whether that’s sponsorship, licensing, or endorsement agreements, marketers will likely want to commit to lower guarantees –- but provide a bigger upside with bonuses or increased option payments. This will ensure that both parties remain incentivized through the length of the deal.
-- As has been the case in recent years, “green” claims remain an active area. We continue to see new regulations and litigation in this space, and advertisers should continue to ensure their environmental claims are properly substantiated and that their substantiation is line with the FTC’s Green Guides and applicable state laws. This year, we’ve also seen consumers taking a closer look at claims like “sustainable” and “sustainability,” which, while not directly addressed by the Green Guides, may communicate broad-reaching environmental and other related messages to consumers.
-- 2021 will bring significant changes to the ad tech ecosystem. Starting in January, Apple will require companies to obtain opt-in consent for tracking through iOS apps. As a response to increased regulation by platforms and regulators, you should expect more industry solutions designed to replace third-party cookies. Remember that privacy and consent obligations are technology agnostic, meaning that cookie-less solutions do not create exemptions for legal compliance. Next year is a good time to evaluate your vendors so that you really understand the technologies they use on your behalf.
-- During 2021, advertisers should keep an eye out for new guidance from the FTC on several key topics -- as well as tougher enforcement. Perhaps most significantly, we should see revisions to the FTC's Endorsement Guides, which provide important guidance to advertisers about the use of influencers and endorsers in social media. Next year, we should also see the adoption of a new FTC rule on "Made in USA" claims. These changes, as well as an increased focus by the FTC on ensuring the effectiveness of its advertising enforcement program, should lead to cases with bigger damages and tougher remedies.
Brian Murphyhere and here.) Other courts considered the related question of whether, in some instances, embedding of photos in this manner qualifies as a fair use. (See here.) Given the number of pending lawsuits that have been brought by photographers challenging this practice, we can expect that 2021 will bring us more rulings addressing these issues. Whether those rulings will provide greater clarity on these important issues remains to be seen.
-- In 2020, several courts grappled with an interesting question: when you post a photo on Instagram, are you granting permission, via Instagram’s Terms of Use, to authorize others (for example, the news media) to embed your photo on their websites? (See
-- Advertisers have become no less familiar with COVID safety precautions and scares than the producers of other types of content. That is for good reason: most advertising productions include talent and crew who jump from short-term production to short-term production and short-term project to short-term project, so there may be an even higher risk of COVID appearing on set before the vaccine can intervene. Producers of advertising content should therefore not only stick to the COVID safety protocols they’ve developed, but should consider reviewing, refining, and reinforcing them so that they continue to be effective. This means continuing to consult federal, state, and local guidelines on COVID safety, to build a culture of safety and compliance, to implement thorough screening and testing measures, to react swiftly to infections, and to keep records of what individuals participate in or visit your production. Finally, advertisers should gear up for the eventual, broad dissemination of vaccines in 2021 by thinking about what vaccine requirements they will implement, if any, and how they will do so.
-- The high number of legal actions this year involving product reviews underscores the power of the review in the modern economy. Because consumers really rely on reviews in making their purchasing decisions, regulators, self-regulators, and competitors alike have been laser-focused on abuse of the review ecosystem by marketers. Ideally, reviews should reflect what customers actually think about a company and its products. So marketers -- and their agencies -- need to take care in how they source, vet, and manage them, whether on their own platforms, or on third party platforms, like Amazon. In practice, that means not preventing or punishing the posting of negative reviews and not manipulating legitimate reviews to make a product appear to be more highly rated than it is. It also means disclosing any bias in the creation of the review: reviews by a marketer’s employees, paid influencers, and users who’ve received free products, must clearly disclose that relationship. Now’s a good time for marketers to take another look at their own, and their vendors’, product review policies and practices.
-- Over the last few years, there has been a spike in deceptive pricing claims against retailers, with allegations of fictitious price comparisons, perpetual sales, and drip pricing tactics. Given the overwhelming class action attention in this area, particularly in California, and a new trend of cases out of Washington State, retailers should continue in 2021 to balance the need to remain competitive with the requirements of the numerous federal, state, and local laws governing their pricing and sale advertising.
Craig WhitneyYep, dozens of cases were filed in 2020 alleging that several different kinds of vanilla-flavored foods and beverages were not derived from pure vanilla or vanilla beans. Whether or not you’re not in the vanilla consumable industry, advertisers need to stay alert that even seemingly innocuous claims could become fodder for the next big wave of consumer class actions.
-- 2020 saw another “flavor of the year” class action topic – where plaintiffs’ lawyers base class action lawsuits on narrow, yet pervasive, claims. This year’s flavor was vanilla.
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