Pre-Conference Workshop

Advertising Claims 101 The Building Blocks of a Successfully Substantiated Advertising Campaign

Jan 28, 2020 2:00pm – 5:30pm

Speakers

Debra Freeman
Senior Partner and Associate General Counsel
Wunderman Thompson (New York, NY)

Aaron Taylor
Partner
Davis and Gilbert LLP (New York, NY)

Stephen Schwartz
President & CEO
International Research Services, Inc.

Day 1 - Wednesday, January 29, 2020

7:00
Registration and Continental Breakfast
8:15
Co-Chairs’ Opening Remarks
8:30
The Year in Review: A Look Back on the Regulations and Guidelines of 2019 that will Impact Claims Substantiation in 2020
9:30
Socially Substantiated: Examining New Developments in Claims Substantiation for Social Media Ads
10:15
Networking Break
10:30
Exploring how the Continuing Evolution of Influencers and Native Advertising are Impacting Claims Substantiation
11:30
Q & A with The FTC and the NAD
12:30
Networking Lunch
1:45
Is the Price Really Right? A Case Study on Establishing Criteria for Substantiating Competitive Pricing Claims
2:45
Networking Break
3:00
Child’s Play: A Fireside Chat with CARU on the Latest Initiatives in Claims Substantiation for Children’s Advertising
4:00
“Natural”, “Eco-Friendly”, and “Sustainable”: Evaluating the Necessary Proofs for Environmental Claims
5:00
Conference Concludes for Day 1

Day 2 - Thursday, January 30, 2020

7:00
Registration and Continental Breakfast
8:00
Co-Chairs’ Opening Remarks and Recap of Day One
8:15
“Made in USA”: Is It Truly All-American? – Examining Country of Origin Claims
9:00
Protecting the Consumer: The State Enforcers Speak on Claims Substantiation
10:00
Networking Break
10:15
Differentiating Substantiation Requirements for Manufacturers and Retailers
11:00
Going Global: Developing Strategies to Meet International Claim Substantiation Requirements
11:45
Ad Correction and Crisis Management: Addressing Faulty Claim Substantiation Pre and Post-Release
12:45
Conference Concludes

Post-Conference Workshop

Working Group on Substantiating Advertising Claims for FDA Regulated Consumer Products: OTC Drugs, Food, Dietary Supplements and Cosmetics

Jan 30, 2020 2:00pm – 5:30pm

Speakers

Cynthia L. Meyer
Partner
Kleinfeld Kaplan & Becker LLP

Megan Olsen
Assistant General Counsel
Council for Responsible Nutrition (Washington, D.C.)

Day 1 - Wednesday, January 29, 2020

7:00
Registration and Continental Breakfast
8:15
Co-Chairs’ Opening Remarks

Susan Duarte
Director and Senior Corporate Counsel
Sprint (Washington, D.C.)

Mikhia E. Hawkins
Senior Counsel
Viacom (New York, NY)

8:30
The Year in Review: A Look Back on the Regulations and Guidelines of 2019 that will Impact Claims Substantiation in 2020

Susan Duarte
Director and Senior Corporate Counsel
Sprint (Washington, D.C.)

Mikhia E. Hawkins
Senior Counsel
Viacom (New York, NY)

Moderator:

Margaret Esquenet
Partner
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP

Join us for an interactive discussion on major advertising claim substantiation developments in 2019 and predictions for what 2020 will bring.  

  • Analyzing cases, investigations and related matters which have had an impact on claims substantiation in 2019
  • Examining federal and state actions taken that have led to changes in claim substantiation
  • Understanding how the impaneling of 5 new FTC commissioners will impact claim substantiation practices
  • Anticipating changes to federal regulations in 2020 and how they will impact claim substantiation going forward
  • Assessing industry trends and initiatives impacting the substantiation of advertising claims

9:30
Socially Substantiated: Examining New Developments in Claims Substantiation for Social Media Ads

Zoila Mena Harpin
Assistant General Counsel
GoDaddy (Phoenix, AZ)

Taneesha Routier
Regulatory Compliance Manager
Xymogen (Orlando, FL)

Mark Levine
Associate General Counsel
RB Health (Parsippany, NJ)

Moderator:

Jeffrey Edelstein
Partner
Manatt, Phelps & Phillips LLP (New York, NY)

  • Reviewing recent FTC regulations regarding the substantiation of advertisements on social media
  • Devising tactics for proper substantiation of “click-through” ads
  • Ensuring proper placement of disclosures on a product’s landing page
  • Understanding how to substantiate a social media claim when a “free product” is involved
  • Developing strategies for maintaining a company’s website as an impartial environment for product reviews and avoiding the posting of misleading information
    •  Avoiding the traps of paid and/or false reviews designed to raise the standing of your company’s products/services on online platforms
    • Establishing standards to ensure that employees’ claims on social media are substantiated in order to avoid liability

10:15
Networking Break
10:30
Exploring how the Continuing Evolution of Influencers and Native Advertising are Impacting Claims Substantiation

Andrew B. Lustigman
Partner
Olshan Frome Wolosky LLP (New York, NY)

Jennifer Malloy
Associate General Counsel
Guthy-Renker LLC (Santa Monica, CA)

Limor Robinson Mann
Chief Oral Care Marketing Counsel
Colgate-Palmolive Company (New York, NY)

  • Examining controversies related to influencers and native advertisers in 2019
  • Analyzing the evolution of “organic influencers” and determining if their claims require substantiation
  • Exploring the growing native advertising marketplace and the differences in cloud based vs. web-based ads
  • Investigating instances where authenticity and editorial content of native advertising have been called into question
  • Ensuring that the proper disclosures are in place for claims made by influencers when a limit on characters exists
  • Transparency requirements for influencers

11:30
Q & A with The FTC and the NAD

Christopher Y. Miller
Attorney
Federal Trade Commission, Northeast Region (New York, NY)

La Toya Sutton
Staff Attorney
National Advertising Division of the Council of Better Business Bureaus (New York, NY)

Moderator:

Edward F. Glynn, Jr.
Of Counsel
Locke Lord LLP (Washington, D.C.)

ACI is pleased to present this conversation with both the FTC and NAD. Join us as both consumer protection advocates discuss their investigations into truth and accuracy in advertising.

12:30
Networking Lunch
1:45
Is the Price Really Right? A Case Study on Establishing Criteria for Substantiating Competitive Pricing Claims

Barry M. Benjamin
Partner
Kilpatrick Townsend & Stockton LLP (New York, NY)

Aaron Reuter
Senior Counsel, Global Brands & Marketing
Hilton (McLean, VA)

Chris Grenz
Counsel – Law Department/Marketing and Advertising Practices
Sprint (Kansas City, MO)

Sometimes the price is not right as it cannot be substantiated. Join our panel for an interactive case study on ensuring substantiation of your pricing claims in which they explore:  

  • Implementing best practices for limiting advertising claims to direct comparisons
  • Examining NAD risks of utilizing a competitor’s name in an advertisement
  • Determining whether a sale price truly encompass the value of a product?
  • Understanding when a “sale price” transitions to competitive pricing?
  • To what extent can a competitor’s IP be utilized for substantiation in a comparative claim?
  • Ensuring your pricing claim are limited to the focus of the ad and not the overall brand
  • Analyzing the legality of undisclosed additional fees in a drip pricing model

2:45
Networking Break
3:00
Child’s Play: A Fireside Chat with CARU on the Latest Initiatives in Claims Substantiation for Children’s Advertising

Lauren Aronson
Counsel
Crowell & Moring LLP (Washington, D.C.)

Christina Poturica-O’Neill
Senior Legal Associate
Children’s Advertising Review Unit, BBB National Programs (New York, NY)

Join us for this fireside chat with representatives of the Children’s Advertising Review Unit (CARU) of the Better Business Bureau who will discuss the latest unit initiatives to ensure that claims in ads directed toward children are properly substantiated, and provide guidance and insights on:  

  • Determining the standards for “competent and reliable scientific evidence” in an advertisement targeting children
  • Assessing social media as a method of advertising geared towards children
    • What are the substantiation requirements in this type of advertising?
  • Examining the differences in regulations between influencers and child influencers
  • Evaluating whether “loot box” advertisements properly substantiate their claims to children

4:00
“Natural”, “Eco-Friendly”, and “Sustainable”: Evaluating the Necessary Proofs for Environmental Claims

Thomas Cohn
Director and Senior Counsel
Avon (New York, NY)

Jenna M. Miles
Regulatory Affairs Compliance Supervisor
FoodScience Corp. (Williston, VT)

Eileen Patt
Partner
Kramer Levin Naftalis & Frankel LLP (New York, NY)

  • Examining the latest controversies concerning the use of terms such as “environmentally friendly” and “non-toxic”
  • Exploring recent FTC activity over claims of “eco-friendly” “sustainable” and “eco-conscious”
  • Analyzing the latest substantiation efforts regarding the terms “natural” and “organic”
  • Determining whether data must be presented by a third party to substantiate an environmental claim
  • Developing methods for properly substantiating an environmental claim throughout the manufacturing process

5:00
Conference Concludes for Day 1

Day 2 - Thursday, January 30, 2020

7:00
Registration and Continental Breakfast
8:00
Co-Chairs’ Opening Remarks and Recap of Day One
8:15
“Made in USA”: Is It Truly All-American? – Examining Country of Origin Claims

Ellen Berge
Partner
Venable LLP (Washington, D.C.)

Katie Bond
Partner
Amin Talati Wasserman (Washington, D.C.)

Matthew Mills
Partner
Arent Fox LLP (Washington, D.C.)

  • Examining the FTC and NAD’s recent scrutiny of “Made in the USA” and other country of origin claims
    • Exploring current FTC standards for “Made in the USA” claims
    • Anticipating changes to these requirements
  • Must all ingredients and/or materials utilized in the manufacturing of a product also be “Made in the USA” or other country of origin to properly substantiate this claim?
  • Determining when the term “made in the USA” can be utilized when making comparative claims
  • Evaluating recently assessed damages from companies making country of origin claims without proper substantiation

9:00
Protecting the Consumer: The State Enforcers Speak on Claims Substantiation

John Abel
Senior Deputy Attorney General
State of Pennsylvania, Office of the Attorney General (Harrisburg, PA)

Shannon Smith
Senior Assistant Attorney General and Chief of the Consumer Protection Division
Washington Office of the Attorney General (Seattle, WA)

Various State Attorneys General are becoming more involved in the enforcement of unsubstantiated claims. This panel of state prosecutors will explore developments in claims substantiation investigations as well as enforcement actions. Points of discussion will include:  

  • State consumer protection laws
    • UDAP regulations
  • Differentiation between the evidence needed for actions taken by state officials and class actions
  • Common misrepresentations

10:00
Networking Break
10:15
Differentiating Substantiation Requirements for Manufacturers and Retailers

Caleb Brian
New Product Claims Specialist, Stationery and Office Supplies Division
3M (St. Paul, MN)

Lisa Detig
Associate General Counsel
Petco (San Diego, CA)

Kyle-Beth Hilfer
Founder
Hilfer Law (Chappaqua, NY)

  • Examining recent FTC and NAD actions against manufacturers providing retailers with products containing unsubstantiated claims
  • Exploring the role of the Electronic Retailing Self-Regulation Program (ERSP) in the substantiation of claims made on consumer goods
  • Determining methods for retailers to substantiate the claims of a manufacturer
  • Where does the burden of substantiation lie for generic products?
  • Analyzing egregious claims made by a retailer against a manufacturer and vice versa
  • Addressing consumer fraud issues for being unable to substantiate the claim “As Seen on TV”
    • Does the retailer hold responsibility for carrying the product?

11:00
Going Global: Developing Strategies to Meet International Claim Substantiation Requirements

Fadi Amine
Partner
Miller Thompson LLP (Montreal, Canada)

Mark Smith
Founder
Purdy Smith Ltd (London, England)

  • Examining the differences in substantiating claims in the U.S. vs. other countries
  • Implementing proper strategies for satisfying the requirements of multiple international markets
    • What evidence is needed for comparative claims?
    • What claims cannot be made in certain markets?
  • What are the potential consequences of unsubstantiated multinational advertisements?
  • Determining whether product claims are properly substantiated to meet the strict standards of certain international markets
    • Halal
  • Developing strategies for challenging the substantiation of cross-border advertisements

11:45
Ad Correction and Crisis Management: Addressing Faulty Claim Substantiation Pre and Post-Release

John Cooper
Director of Strategy, Veeva Claims
Veeva Systems (San Francisco, CA)

John D. Graubert
Partner
Covington & Burling LLP (Washington, D.C.)

Ann Hirsch
Vice President and Associate General Counsel
Pernod-Ricard (New York, NY)

Svetlana Walker
Associate General Counsel, Baby & Child Care
Kimberly-Clark Corporation (Neenah, WI)

  • Addressing the release of an unapproved advertisement
  • Implementing an advertising claims substantiation compliance program with your marketing and legal teams to ensure proper ad review and avoid missteps
  • Developing strategies to ensure advertising deadlines and substantiation standards are met
  • Exploring the use of automated services to ensure claim substantiation
    • Establishing correction protocols for ad misprints and misrepresentations
    • Evaluating litigation risks from these missteps
  • What are some of the actions industry organizations may take when mistakes are found in advertisements?

12:45
Conference Concludes

Advertising Claims 101 The Building Blocks of a Successfully Substantiated Advertising Campaign

Jan 28, 2020 2:00pm – 5:30pm

Debra Freeman
Senior Partner and Associate General Counsel
Wunderman Thompson (New York, NY)

Aaron Taylor
Partner
Davis and Gilbert LLP (New York, NY)

Stephen Schwartz
President & CEO
International Research Services, Inc.

What is it about?

The session will provide a comprehensive overview of both the content and terminology used to support claim substantiation for product and service advertisements. Whether you are new to the industry or an advertising professional who is interested in a refresher, this pre-conference workshop will provide the foundation for the main conference.   Points of discussion will include:
  • Defining key advertising terms relative to claims substantiation
    • Claim
    • Reasonable basis
    • Highest possible standard
  • Differentiating between different types of claims
    • Expressed vs. implied
  • What evidence is necessary to substantiate a claim?
  • Exploring the role of statistics in the claim substantiation process
  • Examining testing requirements used to substantiate claims
    • Are the tests required dependent on the type of claim?
    • How do these tests differ based on the product or service?
  • Deciphering the ASTM guide for sensory substantiation
  • Exploring ways in which a substantiated claim may be utilized
  • Understanding the interplay between marketing and legal departments when making a claim on a product or service
  • Identifying regulatory bodies and watchdog groups that monitor advertising
    • FTC
    • State Regulatory Agencies and Attorneys General Offices
    • NAD
    • CARU
  • Examining the steps in the creation of an advertising campaign relative to claims substantiation
    • Understanding how the requirements for substantiation change when working with a new product vs. an established product
    • Ensuring the method matches the message
    • Key language to use and avoid in an advertisement
    • Successfully displaying a stated goal
  • Can a trademark be considered a claim?
  • Avoiding the use of misleading information

Working Group on Substantiating Advertising Claims for FDA Regulated Consumer Products: OTC Drugs, Food, Dietary Supplements and Cosmetics

Jan 30, 2020 2:00pm – 5:30pm

Cynthia L. Meyer
Partner
Kleinfeld Kaplan & Becker LLP

Megan Olsen
Assistant General Counsel
Council for Responsible Nutrition (Washington, D.C.)

What is it about?

This interactive working group will explore the necessary requirements for claims substantiation of FDA-regulated consumer products, including OTC drugs, dietary supplements, food, and costmetics. The session will provide you with the information necessary to make properly substantiated claims. Points of discussion will include:  
  • Exploring the relationship between the FTC and FDA in this arena
    • Analyzing FTC advertising guidelines
    • Defining a reasonable basis for objective representations
    • Determining the scientific evidence necessary to meet FTC standards
    • Assessing if a clinical trial or study is necessary
  • Taking a closer look at how the FDA views claims on these products via social media and influencers
  • Reviewing terms such as “all-natural” and “100% real ingredients”
    • Determining the substantiation necessary to make these claims
    • Exploring FTC enforcement action when a synthetic product is found in the ingredients
  • Examining regulations for homeopathic products
  • Studying the current status of CBD relative to FDA regulated consumer goods
    • Where do the FDA and FTC stand on the use of this ingredient?
    • Do hemp products hold different regulations from products containing CBD?
  • Exploring enforcement activity for unsubstantiated claims
  • Examining the recent challenges made by companies and consumers on claims made for these types of products
    • NAD challenges
    • Class actions