Co-Chairs Opening Remarks

Andra Dallas
Senior Counsel, Advertising & Marketing
PayPal

Amy Ralph Mudge
Partner and Co-Chair Advertising, Marketing and Digital Media Team
Baker & Hostetler LLP

Coffee and Q+A with In-House Counsel: Examining How the Latest Legal Developments and Trends in Advertising Claims Substantiation Will Impact Your Business Practices in 2024

Katie Dunne
Senior Director, Assistant General Counsel, Legal & Privacy
Crate & Barrel

Dana Hall
Corporate Counsel
S.C. Johnson & Son, Inc.

Devon Winkles
Associate GC, Marketing
Danone North America

Megan Collins
Senior Counsel
Goldman Sachs

Moderated by:

Amy Ralph Mudge
Partner and Co-Chair Advertising, Marketing and Digital Media Team
Baker & Hostetler LLP

Join us for an interactive discussion with a panel of cross-industry in-house counsel who will discuss the most significant claim substantiation developments and trends in 2023, as well as predictions for 2024. Points of discussion will include:

• Highlights of recent cases and actions taken by the FTC, NAD, state AGs and private plaintiffs which have impacted the world of claims substantiation
• Emerging agency regulations and guidance which are likely to impact the claims substantiation sphere in the coming year
• Critical considerations for business practices in the face of evolving areas of advertising scrutiny

A Deep Dive Into the FTC’s Latest Enforcement Priorities: New Guidance on Endorsements, Testimonials, Consumer Reviews and Beyond

Mary Engle
Executive Vice President, Policy
BBB National Programs
Former Associate Director for Advertising Practices, FTC (2001 – 2020)

Interviewed By:

John Villafranco
Partner
Kelley Drye & Warren LLP

Since we last met, the FTC has released its finalized new Endorsement Guides, and has additionally issued a proposed Rule on the Use of Consumer Reviews and Testimonials. Join us for this much anticipated discussion with TBD as she discusses the FTC’s latest initiatives in the realm of social media advertising, and areas of focus for the agency moving forward.

Morning Coffee Break

Keeping Your Green Claims Clean: Mastering Substantiation of Environmental/ESG Claims at a Time of Heightened Scrutiny and Evolving Regulation

Jennifer Fried
Partner, Advertising Practice Lead
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP

Mark Smith
Founder & CEO
Purdy Smith

Debora Welch
Assistant General Counsel
Henkel Corporation

Substantiating “green” claims can be extremely technical, and the practice of selling sustainability is receiving increased scrutiny from the regulators, enforcers and the plaintiffs’ bar alike. Points of discussion by this panel will include:

• Analyzing the recent proposed updates to the FTC’s Green Guides and how they may affect marketers’ future ability to make green claims
• Strategies for touting environmental benefits while mitigating the latest regulatory and litigation risks
• Understanding what is needed to back up claims of products being recyclable, biodegradable, carbon neutral/a carbon offset, and beyond
• What types of testing is needed? Where should the data come from?
• Emerging risks of making “aspirational” green claims: what proofs must you have in order to claim that you will achieve an environmental goal at a specific point in the future?
• Examining takeaways from this year’s most significant “greenwashing” lawsuits
• Assessing the newly proposed “EU Green Claims Directive” – what will be the implications of this on companies with an international presence?
• Understanding how to substantiate the “S” in ESG
• Substantiating claims surrounding social obligations companies have today

Networking Luncheon for Speakers and Delegates

Health Claims Under Fire: Avoiding Deceptive Health-Related Claims in the Face of New Guidelines from FTC and FDA

Jacqueline Chan
Assistant General Counsel, Regulatory & Marketing
Unilever

John Graubert
Senior Counsel
Covington & Burling

Raqiyyah Pippins
Partner
Arnold & Porter

In 2023 the FTC finally issued its new Health Products Compliance Guidance heightened substantiation requirements for health-related claims. While FTC’s original guidance—released some 25 years prior—applied only to dietary supplements, this latest guidance also applies to health claims made about foods, OTC drugs, devices, and any other health related consumer products.

Against this backdrop, the FDA issued a new definition of “healthy” for food labels. This panel will take a deep dive into what these new guidelines will mean for companies making health-related claims going forward.

• Examining the new and expanded substantiation requirements set forth by the FTC’s new guidance
• Analyzing the new guidance’s emphasis on randomized controlled clinical trials (RCTs)
• How much evidence, and what type of evidence, will be needed going forward to substantiate health-related claims?
• Are there exceptions to using RCTs, what type of evidence can be used in lieu of RCTs, and how do advertisers document the relevance of this evidence?
• What expectations has FTC created in the guidance regarding clinical trial quality, practices and analysis, including statistical analysis of clinical trial results?
• Addressing how the new guidelines will impact the use of ingredient clinical studies
• Understanding how court precedent impacts the guidance and what to do where precedent contradicts FTC’s guidance updates
• Taking a look at health claims from a supplier’s standpoint: what level of substantiation is needed?
• Examining FDA’s proposed new definition of “healthy” and how it will impact claims made by food, supplement and other companies

Spotlight Session

Artificial Intelligence in the World of Advertising: Preparing for the Next Frontier of Ad Claims Scrutiny and Enforcement

Bezalel Stern
Partner - Advertising, Marketing and Media Practice
Manatt, Phelps & Phillips, LLP

Candice Kersh
Partner, Advertising, Marketing, and Public Relations Group
Frankfurt Kurnit Klein & Selz

Limor Robinson Mann
Vice President, Chief Marketing and Disruptive Innovation Counsel
Colgate-Palmolive Company

Michael Schiffer
Owner/Founder
S2 Advertising Law PLLC

Companies are quickly learning that Artificial Intelligence can be a powerful tool in creating and enhancing advertising campaigns. However, with all eyes now on AI (including the regulators’), companies must tread very carefully in ensuring that ad claims made through AI-enabled methods are legally compliant. What’s more, the FTC has recently made it clear that the mere mention of AI in ad claims will be heavily scrutinized. This panel will delve into the latest ways that AI is being used in the world of advertising and the biggest legal and compliance risks that companies must be aware of.

Topics of discussion include:

• Analyzing the latest ways that generative AI models are being used in ad campaigns
• Examining the legal and compliance risks of using AI chat bots to generate ad ideas and content (e.g. ChatGPT, Google Bard, etc.)
• Understanding how to sufficiently document the creative process used to create ads when using AI
• Uncovering “hallucinations” or misinformation in ads created in whole or in part by AI
• Identifying the risks of using computer-generated “virtual influencers” to connect with followers and sway consumer purchase decisions
• Assessing the FTC’s recent focus on virtual influencers engaged in “review hijacking”
• Understanding how virtual influencers can legally push a product while providing sufficient disclosures and information to the consumer
• Best practices for making and substantiating claims made about AI in your advertising
• Taking a look at the latest FTC enforcement activity against companies mentioning AI in their marketing

Afternoon Break

Tackling the Challenges of Substantiating New Technology Claims: How to Proceed When the Tech Evolves Faster than the Substantiation Testing

Erin Evans
Director, Legal - Marketing Practices
T-Mobile

Andra Dallas
Senior Counsel, Advertising & Marketing
PayPal

• Assessing specific challenges surrounding technology’s outpacing of policy and the need to develop forward-thinking laws and regulations that keep advertising principles top-of-mind
• Examining the role of industry standards in substantiating claims about new technologies
• How to come up with appropriate testing to create standards for an evolving technology that doesn’t exist yet
• How should companies that create or develop technologies think about using industry standards effectively, and on the flip side – how can they battle industry standards effectively when needed?
• How do you test for consumer experience with new products not in the market yet?

Tactical Tools for Sensory Claim Substantiation: Understanding the Difference Between Sense Perception Claims, Run-of-the-Mill Performance Claims and Puffery

Wendy M. Fiel
VP & Chief Legal Officer
Sabra Dipping Company

David Mallen
Partner, Co-Chair, Advertising Disputes
Loeb & Loeb LLP

• Exploring the latest sensory claims garnering scrutiny and pitfalls to avoid when making them
• Navigating the challenges of taking subjective preferences and turning them into objectively provable advertising claims — How do you avoid puffery?
• Examining the rules and industry standards that govern sensory claims: how to prove that your product “tastes better,” “works best,” “is more comfortable,” etc.
• Navigating sensory claims testing: sample size, methodology and other key criteria for sensory tests
• Understanding comparative advertising and mitigating the risks of performance claims
• What is required to properly substantiate these types of claims?
• Can it be based on public consumer data online?
• What kinds of testing is adequate?
• Taking a look at case studies of recent competitor comparison claims: what damages were incurred and what are the key takeaways?

Incorporating Lessons from Recent Advertising Claims Class Actions Into Your Future Claims Substantiation Strategies

Joshua Kipnees
Partner
Patterson Belknap

Anna Naydonov
Partner
White & Case LLP

Katie Rogers
Special Counsel
Kelley Drye & Warren LLP

• Examining recent decisions from class action cases focused on advertising claims substantiation in 2023 – What have we learned? What are the key takeaways?
• Examining instances in which claims were adjudicated as misleading
• Analyzing the extent of damages for misleading claims – how are these actions impacting a company’s bottom line?
• Exploring trends in recent claims activity and identifying claims to avoid in order to prevent future advertising claims litigation

Conference Adjourns

Co-Chairs’ Welcome Back and Recap of Day 1

Andra Dallas
Senior Counsel, Advertising & Marketing
PayPal

Amy Ralph Mudge
Partner and Co-Chair Advertising, Marketing and Digital Media Team
Baker & Hostetler LLP

Spotlight Interview with NAD

Laura Brett
Vice President, National Advertising Division®
BBB National Programs

Interviewed by:

Nancy Felsten
Partner
Davis Wright Tremaine LLP

Join us for an interactive conversation with Laura Brett, Vice President of the NAD, as she discusses the latest trends in claims challenges and disputes, the Division’s latest initiatives to promote truth in advertising claims, and insights on how companies can most effectively work with NAD.

Shining a Light on “Dark Patterns”: What All Companies Must Know About this Rising Area of FTC Advertising Enforcement

Trent Taylor
Partner
McGuireWoods LLP

Andrew Lustigman
Partner
Olshan Frome Wolosky LLP

The FTC and other enforcers are rapidly increasing their focus on “dark patterns” in advertisement designs, which are practices that regulators believe can trick or manipulate consumers into buying products or giving up their privacy. In addition, the Commission also just released a new proposed rule governing subscription offerings/negative options. This spotlight session will explore:

• Specific website design and advertising practices that are currently triggering enforcement activity
• The types of allegations being brough by the FTC in cases where dark advertising patterns are alleged
• How companies can avoid being the next target in this rising wave of deceptive advertising enforcement
• Restoring your product’s reputation after it falls prey to a dark pattern
• The FTC’s latest amendments to the rules governing subscription offerings/negative options and junk fees
  • Understanding what restrictions the new Negative Options rule would impose on practices such as prenotification plans, continuity programs, automatic renewals, free-to-pay subscription conversions, etc.
  • Evaluating industry response to the new amendments
  • Taking a look at recent enforcement and litigation stemming from negative options and forecasts for the future

Morning Coffee Break

Q+A with CARU: Delivering Truthful Advertising Across the Blurred Lines of the Metaverse and Critical Considerations for Teen Advertising

Dona J. Fraser
Senior Vice President, Privacy Initiatives
BBB National Programs

Join us for an interactive conversation with CARU as they discuss the latest initiatives to promote truth in children’s ads in the blurry atmosphere of the metaverse, as well as the oral and visual disclosures that are required to achieve transparency. Additionally gain insights into the organization’s recently released TAPP Roadmap, which provides a framework aimed at protecting the online privacy of teenage consumers.

Prize Promotion Essentials: Ensuring Compliance When Conducting and Advertising Prize and Premium Promotions

Amy Kingham
Compliance Manager
PromoVeritas

Kyle-Beth Hilfer
Founder
Hilfer Law

Promotions are a vital marketing tool for many businesses, however manufacturers, retailers and other advertisers must navigate a regulatory maze of 50-state laws as well as federal (and overseas) regulations to conduct and advertise a promotion. This panel will examine the practicalities of achieving marketing success while ensuring compliance with existing promotions laws surrounding prizes, sweepstakes and gift with purchase promotions.

Runaway Claims: Exploring Ad Claims Gone Wrong and Strategies for Getting Them Back on Track

Lauren Aronson
Partner
Amin Talati Wasserman LLP

Melissa Landau Steinman
Partner
Venable LLP

La Toya Sutton
Director of Legal, Marketing and Communications
The Clorox Company

This interactive session will examine a series of advertising campaigns that took unexpected twists and presented potentially unsubstantiated claims. Using live polling, the attendees will get the opportunity to weigh in on where the claims went wrong and share insights on how they might be rectified. The panelists will then provide guidance on how marketing and legal departments can best work together to avoid unwanted consequences when claims go off track.

Conference Concludes