Emerging Issues

A brand’s media mix has undergone seismic change. From social media, digital out of home, in-game advertising and internet advertising, the legal issues will continue to grow. Part of the myriad of critical business issues to consider in this mix is to ensure that your influencers are not putting you at risk. Are they making the right disclosures in their own posts? Are you carefully managing whitelisting or allowlisting on social media? Are your contracts state of the art? Are you training your influencers and monitoring their posts? These are just a few legal pitfalls to be wary of.

The world of regulated products and industries continues to grow with the emergence of new products and services like marijuana/CBD products, online betting and cryptocurrency. The question on every marketer’s mind: How do we stay in compliance without diluting the creativity and effectiveness of our advertising and marketing campaigns? Are there lessons to be learned from more well established regulated product categories, like alcohol, cosmetics and dietary supplements? Regulations reach far and wide and change rapidly, touching every player in the advertising ecosystem. Brands, media and agencies must be focused on compliance while foraging new territory and seeking growth for their products.

As online retail continues to grow exponentially, so do the marketing and advertising rules that brands and retailers must grapple with to meet consumer demand. Most online sellers have remained faithful to classic marketing practices but now they must adopt them to fit the contours of online rules and regulations. And newer channels, such as subscription- based models involving auto renewal and negative-option marketing, are being scrutinized much more heavily as they become standard fare in a marketer’s portfolio. How do you ensure your traditional marketing and newer models align? This is a balancing act that retailers must manage to avoid unnecessary scrutiny and create trust and success with consumers.

The metaverse is a multi-billion dollar industry and promises to become a key aspect of daily life, commerce and interaction. Evolving from a niche fascination among the tech savvy for cryptocurrency and non-fungible tokens (NFTs), the metaverse and Web 3.0 are being built on the same foundation of blockchain technology. This technological evolution will fundamentally alter the relationship between digital platforms and the users that operate within them. But how does one manage risk when using such a nascent and leading-edge technology? It’s not just understanding the diverse basket of legal issues – which might include intellectual property law, sweepstakes and promotions law, privacy law, contract law, and securities law – but also understanding the marketplace, including the prevailing financial and technological standards and practices.

The fundamental relationship between colleges and student-athletes is undergoing a rapid and transformational change that will impact not only college athletics, but also the sports media and marketing landscapes. As these changes occur at the school, state and national levels, they create new risks and opportunities for those involved in sports media and marketing. How can advertisers and student-athletes navigate the patchwork of state, college and conference rules? What can tech businesses do to set up platforms that comply across each state and market? Will federal regulations change the rules again? These are just some of the questions that athletes, universities and marketers need to keep top of mind.

The constantly evolving landscape of consumer privacy and data protection can leave your company feeling like it’s on a tightrope: rules shift daily as privacy laws are passed at local, state, federal and international levels; the alarming frequency of data breaches now feels like business as usual; and the methods by which data becomes vulnerable and exploited expands exponentially. How will you develop an airtight privacy and data protection strategy while keeping your competitive edge and avoiding reputational harm?

Mortgage, auto, fintech and student loan market participants are anticipating tougher regulations and increased scrutiny from the Biden administration, and issuers and investors alike are expecting more guidance related to ESG standards. As the economy attempts to normalize, government stimulus will wind down and lenders will likely not be as accommodating to distressed borrowers as they are currently. A return to pre-pandemic norms could be accompanied by rising delinquencies and losses, which will attract more scrutiny at the federal and state levels. How will you prepare for and interpret additional requirements on your practices from the government? How will these impending changes impact profitability and future growth in the markets?

The COVID-19 pandemic has forced companies to reinvent how their workforce works. Employers must now envision what makes sense going forward. Will a return to office mandate cause employees to leave? Can your company operate effectively with a hybrid model? Regardless of your answer, complying with federal and state laws requires new policies and training. Have you changed your insurance coverage for a remote work model? How will the use of new remote work technologies impact your document retention policies? These are just a few of the issues that need attention — fast.

The cannabis industry is expected to more than double over the next five years as more states legalize marijuana and pressure mounts to decriminalize at the federal level. While Congress struggles with ways to address competing calls, the social issues that surround cannabis financing and profitability add a layer of complexity to rulemaking and require the coordination of various government agencies. As a result, banks and others seeking to help finance cannabis-related businesses must navigate unprecedented legal pitfalls. Constant review of these changing factors is required to successfully profit in this space. Cannabis Disclaimer

Creativity is the life blood of advertisers, marketers and agencies, constantly developing new ways to reach their audience. At the same time, government regulators like the FTC and state AG’s, along with competitors and the plaintiffs’ bar, continue to create roadblocks with new enforcement initiatives, unprecedented class actions claims and competitive challenges. The legal landscape for marketers has never been riskier. How do you find the right balance in business needs and legal risk when advertising new products and services, especially recently regulated products like marijuana? How do you provide practical guidance when there is no precedent for innovative marketing and advertising practices designed to push the creative envelope? Staying carefully ahead of these issues is essential in order to achieve market dominance.

COVID-19 has rapidly changed consumer behavior, as people spend more time at home and shop online. This has led to an uptick in allegations of online false advertising, unfair or deceptive trade practices and consumer fraud. Have you updated how you are interacting with your customers online? How are you staying in compliance with the various consumer protection statutes at both federal and state levels as business moves online? How do these potential suits impact customer trust and brand reputation? Guarding your business against such actions should remain top of mind as there is no sign of filings slowing down.