2019 ANA Advertising Law & Public Policy Conference

ANA Legal Affairs Committee Meeting (ANA Client-Side Members Only)

All ANA client-side members are welcome to join us at the pre-conference ANA Legal Affairs Committee meeting at Reed Smith LLP's Washington, D.C. office. This is always our best-attended Legal Affairs Committee meeting of the year. A networking reception will follow. This year's agenda includes:

• Andrew Smith, Director of the FTC's Bureau of Consumer Protection
• Stacy Marcus, Chief Negotiator for the Joint Policy Committee on Broadcast Talent Union Relations and Partner, Reed Smith LLP
• David Lieber, Senior Privacy Policy Counsel, Google

To view more information about this meeting, and to register, please visit the meeting page.

PRIVACY & CONSUMER TRUST: WHERE WE STAND TODAY TO BOLSTER ENGAGEMENT FOR TOMORROW

The U.S. consumer today has heightened privacy expectations. Where brands are concerned, she also demands to be recognized and to be served relevant content. We can – and must – deliver both responsibly. Privacy laws and legislation generally are not focused on such dual positive outcomes. Yet innovation, responsibility, and “right” industry practices are well established in market. The YourAdChoices icon and framework, founded by ANA and a consortium of ad groups across the interest-based advertising ecosystem, have made transparency and consumer control ubiquitous, effective and accountable for consumers in the United States. Learn why brands and publishers must continue to be an indispensable part of this respected industry commitment to responsible data collection and use for engagement and growth, particularly in a pro-regulatory environment.

Lou Mastria, CIPP CISSP

Executive Director Digital Advertising Alliance

OPENING REMARKS

Bob Liodice

Chief Executive Officer ANA

A MANDATE FOR INCLUSION AND DIVERSITY

On January 27, 2019, general counsel from 170 companies representing retail, manufacturing, health care, software, publishing, life sciences, hospitality, financial services, and more published an open letter to the legal community expressing their disappointment that “many law firms continue to promote partner classes that in no way reflect the demographic composition of entering associate classes.” Collectively, these companies annually spend hundreds of millions of dollars on outside legal services. In the letter, theses influential legal leaders announced that they will hire outside counsel from “law firms that manifest results with respect to diversity and inclusion.” This session, led by a panel of General Counsel who signed the letter, will address these critical issues and inform both inside and outside counsel of the commitments we must all make to assure a diverse and inclusive legal marketplace.

Moderator: Geri Haight

Vice President and Deputy General Counsel Panera Bread, LLC

ADVERTISING IN THE WASHINGTON LABYRINTH

Divided government has returned to the nation's capital with a vengeance. This creates very high hurdles for major legislation. Will Congress be consumed by gridlock and the latest Trump tweet, or can they find a way to act on issues the advertising industry cares about? The importance of federal privacy and data security legislation has never been greater as a number of states continue their regulatory push. With the Democrats now in control of the House, we are likely to see activity on issues like prescription drug advertising, food advertising, and advertising to children. Several key commercial speech cases also remain percolating in the courts. ANA's Dan Jaffe will provide an update on these and other important advertising and marketing legislative, regulatory, and legal issues.

Dan Jaffe

Group Executive Vice President, Government Relations ANA

Please choose Breakout Session 1-A or 1-B

SAG-AFTRA AND THE JPC - COMMERCIAL PRODUCTION FOR A NEW ERA

The $3-billion commercials contract between SAG-AFTRA and the JPC expires March 31, 2019. As the industry and technology continue to evolve, the challenges in negotiating the decades-old collective bargaining agreement are daunting. Get an update from JPC Chief Negotiator Stacy Marcus and SAG-AFTRA Chief Contracts Officer Ray Rodriguez on the status of the negotiations and how the union and industry are building a collaborative relationship to bring commercial production into a new era.

Stacy Marcus

Chief Negotiator, Joint Policy Comm. on Broadcast Talent Union Relations Partner, Reed Smith LLP

COMPELLED SPEECH AND THE EVOLVING COMMERCIAL SPEECH DOCTRINE

Governments at various levels are imposing new requirements on commercial speakers, including conscripting them to be the platform for a growing variety of government messages, imposing liability for advertising decades after the fact, and limiting the use of consumer information for marketing purposes. Although the Supreme Court has recognized constitutional protection for commercial speech for more than 40 years, these evolving forms of regulation pose special challenges for the commercial speech doctrine. This presentation will examine the law concerning the government’s ability to compel speech, following last term’s Supreme Court decision in National Institute for Family & Life Advocates v. Becerra. Current regulatory proposals such as the Trump Administration’s plan to require pharmaceutical ads to include list prices will be explored. The presentation will cover the implications for advertisers of the Supreme Court’s declining review in The Sherwin-Williams Company v. California, leaving in place a state court decision holding Sherwin-Williams liable for creating a public nuisance (the presence of interior residential lead paint) simply because it advertised lead paint for then-lawful uses over 70 years before. It also explores some implications of the California Consumer Privacy Act of 2018, widely touted as the strictest in the nation.

Bob Corn-Revere

Partner Davis Wright Tremaine LLP

WHO CAN YOU TRUST WHEN WORKING WITH OTHERS? AFFILIATE AND INFLUENCER MARKETING

Almost all advertisers use influencer and affiliate marketing as part of their overall marketing mix. While these third parties might be engaged directly, more frequently they’re hired through one or more intermediaries (e.g,. a network or agency) that can be spread throughout the globe. With so many disparate parties working on your behalf, how can you trust that they’ll all do the right thing, ensuring you won’t become the next target of a regulatory investigation or false advertising claim that was largely outside of your control? This session will explore the contractual and practical steps advertisers can take to help minimize risk when working with affiliate marketers and influencers.

Moderator: Joseph Lewczak

Partner Davis & Gilbert LLP

NEW PARADIGM: THE NEED FOR FEDERAL PRIVACY LEGISLATION THAT PROVIDES CLEAR AND CONSISTENT STANDARDS

Recent national and global legislative and policy trends and high-profile data incidents involving consumer-facing companies have created a shift in thinking about the regulation of consumer privacy. The traditional U.S. consumer privacy model, focuses on sectoral laws that regulate specific uses of data and is bolstered by self-regulatory codes. That model is under assault by activists and legislatures and has led to the enactment of highly regulatory approaches such as the European Union’s General Data Protection Regulation (GDPR) and the California Consumer Privacy Act of 2018 (CCPA). In response to these developments, the industry must rethink the old model and present a new paradigm for consumer privacy. This panel will discuss efforts to enact strong federal privacy legislation that preempts competing state laws, and will outline a new privacy paradigm that is well-suited for today’s consumers and the modern economy.

Stuart P. Ingis

Partner and Chairman Venable LLP

SOCIAL MEDIA PLATFORMS AND TRUST

According to at least one estimate, advertisers are expected to spend $40 billion more on online advertising this year than on television — and much of this is driven by advertising on social media. Like the television networks, social media platforms have their own standards which govern the types of advertising they will accept, and these standards are rapidly evolving. Creating appropriate standards and effectively enforcing them, present unique challenges for social media. We will examine these standards, how they are enforced, and discuss why getting it right is critical to building trust with advertisers and consumers.

Moderator: Jeffrey A. Greenbaum

Managing Partner Frankfurt Kurnit Klein & Selz PC

Please choose Breakout Session 2-A or 2-B.

TRUST THE PROCESS? THE CHALLENGER'S PERSPECTIVE TO POLICING COMPETITORS' ADVERTISING CLAIMS

The options for challenging competitors’ claims are well known: Lanham Act litigation, complaints to federal or state regulators, and NAD challenges. However, with litigation costs limiting Lanham Act challenges to the most-critical issues and government action infrequent on purely competitive matters, self-regulation is often the best bet. Yet in 2018, challengers at NAD have become increasingly frustrated by advertisers’ refusal to participate in the process or comply with decisions, resulting in more cases are being appealed to NARB than ever before. Why should challengers trust the process? The panel will discuss trends at NAD, the impact of recent changes to ASRC procedures, proposals for continued improvement, and the advertiser’s responsibility when it comes to building trust in industry self-regulation.

John E. Villafranco

Partner Kelley Drye & Warren LLP

USING CONTENT TO BUILD TRUST WITH CUSTOMERS – KEY IP CONSIDERATIONS

In the increasingly fractured media market, as consumers are presented with more choices of content and technological means to avoid seeing ads altogether, many brands are turning to building a library of their proprietary intellectual property and using a network of owned-and-operated distribution channels to reach their customers. By establishing a direct channel of communication with content and a pipeline that brands control, brands can better control the message and establish more open trust with their customers. In this session, you will learn key legal issues every lawyer should know when advising clients on creating, sourcing, distributing, and in some cases, monetizing its intellectual property used in advertising and marketing.

Po Yi

Partner Manatt, Phelps & Phillips, LLP

GLOBAL ADVERTISING IN A TURBULENT MARKETPLACE

With countries facing political upheaval, economic crises, and cultural revolutions, as well as tariffs, sanctions, health scares, and terrorism, understanding the letter of the law just isn’t enough. Members of the Global Advertising Lawyers Alliance (GALA) will provide key insights into regions and countries undergoing dramatic change and ways to successfully advertise in a turbulent global marketplace.

Moderator: Fiona Robertson

Senior Associate Al Tamimi & Co. (United Arab Emirates)

OPENING REMARKS

DIVERSITY IN ADVERTISING: SHOULD PRACTITIONERS JOIN THE CONVERSATION?

Taking an in-depth look at several case studies in advertising, this panel will discuss the role of legal practitioners on matters of diversity and inclusion. From identifying cautionary flags to proactively developing escalation processes, this thought-provoking discussion aims to increase consciousness in the way practitioners support business leaders in a continually diversifying marketplace.

Moderator: Eugenia Blackmon

Director, U.S. Commercial Compliance, Project Moonwalker Allergan, Inc.

KEYNOTE ADDRESS

Joseph Simons

Chairman Federal Trade Commission

Please choose Breakout Session 3-A or 3-B.

NEGOTIATING CONTRACTS WITH AGENCIES

Driven by a desire for stronger content and greater transparency, advertisers have maintained the steady pace of agency reviews in recent years. In such an uncertain climate, how can brands and agencies establish more effective partnerships and build trust? This session will explore the ways brands can position themselves for more productive and value-focused negotiations with agency partners, including the benefits of company stakeholder coordination. Key contract issues will include brand safety, content production, exclusivity, media verification, compensation alignment, data security and management, global finance and agency stewardship.

David J. Ervin

Partner Crowell & Moring LLP

CLAIMS BUILT ON TRUST: MADE IN THE USA, NATURAL AND GREEN

There is a special role played by “credence claims” — the kind of advertising claims that require trust because it is not possible for consumers to verify these claims on their own. This panel will discuss the state of regulatory enforcement and litigation with respect to these claims and consider best practices for advertisers to use these claims effectively without undermining trust or inviting legal risk.

David Mallen

Partner Loeb & Loeb LLP

KEYNOTE ADDRESS

Sean Reyes

Attorney General State of Utah

OVERCOMING FOUR OBSTACLES IN VIDEO ADVERTISING TO RESTORE TRUST

Stephen Robinson

General Counsel Extreme Reach

MEASURING PROGRESS ON MEASUREMENT

Over the last several years, advertisers have had an increasing focus on the quality and transparency of digital measurement. This focus has been progressing through various aspects of measurement starting with moving to viewable digital ad impressions, reduction/elimination of invalid traffic and fraud, the latest focus areas of brand safety, and development of in-target audience metrics consistently across media types. This measurement agenda has also been directed to large digital enterprises, e.g. Facebook and Google, seeking equal quality and transparency. Progress has been made in several areas. In this context, measurement-related topics, such as data access/ownership or protection of consumer information, have also captured the attention of legal practitioners within companies. The Media Rating Council (MRC) has been leading actions in these measurement areas, helping the ANA and the industry by developing standards as well as auditing measurement vendors using extensive testing and validation processes. This session will provide a progress report on these measurement initiatives and highlight key measurement topics from a legal perspective.

Moderator: Keri Bruce

Partner Reed Smith LLP

Please choose Breakout Session 4-A or 4-B.

“IF YOU WANT SOMETHING DONE RIGHT…:” THE PROMISE AND CHALLENGES OF IN-HOUSE AGENCIES

Nearly 80 percent of advertisers have in-house agencies. However, being a trusted legal counsel for one is no small or easy task (indeed, you may never have fully appreciated how much ad agencies actually do until you try to build one within your organization!). In this session, we will discuss some of the real life challenges that in-house agencies present for overworked in-house legal departments.

Kelly Whiting

Associate General Counsel Verizon Communications

AI & MACHINE LEARNING - THE NEW FRONTIER FOR ADVERTISERS

Advancements in artificial intelligence promise to change the advertising industry in several ways: from the ways in which ads are created to the ways in which they are bought and disseminated. As a result of AI-based targeted advertising, ads are quickly becoming more effective and affordable than ever before - for large and small businesses alike. However, these great benefits come with certain potential legal and reputational risks. Our panel will provide an overview of how AI is being utilized in the advertising industry, and will discuss various issues for attendees to consider when adopting these practices.

Michael Philips

Assistant General Counsel Microsoft Corporation

ETHICS AND INNOVATION IN LEGAL SERVICES

This presentation will compare the relative lack of innovation in law with the record of robust innovation in other fields, and describe how ethics standards restricting the unauthorized practice of law, non-lawyer ownership of law firms (Model Rule 5.4(b), (d)), and sharing of legal fees with non-lawyers (Model Rule 5.4(a) are holding back innovation. In other fields, industrial scale production creates commoditized products and services at radically lowered per-unit costs, greatly increasing the number of people who can afford those products and services (compare the high price of bespoke clothing with the low price of off-the-rack manufactured clothes). By contrast, a significant portion of legal services are bespoke rather than commoditized, and thus are available at relatively high prices that few individuals can afford. A recent study showed that 76 percent of cases in state courts involve at least one party who is not represented by counsel. The law has seen little of the kind of innovation that would make legal services available at prices individuals can afford. To the degree that our “ethics” standards stand in the way of such innovation, they need to be reexamined.

Kathleen Clark

Professor of Law Washington University