ANA Law Conference: ANA Hears Of Potential For More Regulation — MediaPost

The advertising and marketing business is facing a Christopher Columbus moment this year, with serious threats on a broad range of issues, and no horizon in sight.

While the new Administration is likely to favor government regulation of how marketers tout their products and to whom, this economic downturn is the worst time to put shackles on advertising, says Dan Jaffe, EVP, government relations at the Association of National Advertisers (ANA.)

Speaking at the ANA's Advertising Law and Business Affairs conference in New York on Monday, Jaffe said, "This could be a year of living very dangerously. Clearly, it's a year of anti-business sentiment." And he flashed a cartoon of rats jumping a ship called Wall Street, carrying trunks labeled "Bonus" and "CEO."

"Self-regulation is now dead: we now face a skeptical outlook of policymakers toward self-regulation in general. Even Republicans have shown willingness to intervene in the regulatory system. Advertising is the engine of our economy. But the whole movement is toward greater and greater regulation in all areas and all at once."

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Jaffe says the Supreme Court is also likely to pose new challenges since many key decisions impinging on advertising have been made on a 5-4 vote. "The majority of the court is quite old, so President Obama may replace up to three in his first term. Even a one-person change could swing the court in key issues."

And advertisers may see an end to tax-free advertising. He pointed out that with the projected deficit this year of $1.2 trillion, three times greater than the last record deficit, lawmakers on both the federal and state levels would look at taxes on advertising as a way to garner revenue.

"There are ways taxes could be imposed: from across-the-board ad taxes [which would] garner as much as $160 billion in the next five years, to specific taxes on unpopular categories, such as tobacco, direct-to-consumer pharma, and certain food categories," he said.

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And, while she conceded the FTC's Leibowitz had expressed some skepticism, "he also said that almost all of us want to see self-regulation succeed.

"I do think that, for many years, the FTC has managed ad issues in a way that is balanced and responsible. That's not to say that there aren't decisions we couldn't disagree with."