AAF Government Report

November 20, 2009

Clark Rector Jr., Executive Vice President – Government Affairs

Legislation Targets Food Advertising

Representatives Jim Moran, D-Va. and Bill Pascrell, D-N.J. have introduced “The Healthy Kids Act” to address the issue of childhood obesity. Unfortunately, much of the bill aims at advertising.

The legislation would allow the Federal Communications Commission to limit the amount of advertising for foods or drinks that do not meet certain standards to two minutes an hour on weekends and three on weekdays. It would allow the FCC to fully ban ads for foods that "do not contribute to a healthful diet for children and adolescents and the consumption of which is discouraged."

The Federal Trade Commission would determine which foods do not meet the standard. Ads targeting children kids for the products would be deemed unfair trade practice. The FTC will determine the age range for which children should not be exposed to certain advertising. A multi-agency task force, including the FTC, is currently looking at whether 12- to-19-year-olds should be considered children for the purposes of advertising.

The bill would also give the Health and Human Services department the authority power to develop guidelines for food and beverage advertisements that take into account children and adolescents' "emotional vulnerability ... (and) cognitive ability to distinguish between commercial and non-commercial content."
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President Obama Nominates FTC Commissioners

President Barak Obama has nominated Julie Brill and Edith Ramirez to the Federal Trade Commission.

Brill is the senior deputy attorney general and chief of consumer protection and antitrust for the North Carolina Department of Justice.

Ramirez is an attorney at Quinn Emmanuel in Los Angeles. She has represented many business clients such as the American Broadcasting Company, the Walt Disney Company and Mattel.
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Social Networking Sites and Promotions: An Evolving Landscape

As the number of advertisers using social networking sites to execute sweepstakes and similar promotions grows, so too grows the number of guidelines being imposed on those kinds of promotional activities by the sites. Not so long ago, conducting sweepstakes via Twitter®, Facebook®, or YouTube® seemed novel. Now it is a common occurrence. As those sites and others get their digital arms around the extent to which and how advertisers are using the platforms for promotions, more sites are instituting guidelines on how they can be used for those purposes. The prudent advertiser will review the terms of use for the site or sites it intends to use to execute a promotion, and may need to consult with an attorney to ensure proper compliance. While some, like Twitter, currently still have no guidelines; another popular site for promotions, Facebook, recently has updated its Promotions Guidelines to more clearly define what it will allow and what it will not where sweepstakes, contests, and similar competitions are concerned.

Facebook’s Guidelines, updated on November 4, impose a host of new requirements on advertisers who want to run promotions through its pages. While it still is permissible without too much constraint to, for example, simply promote on Facebook a sweepstakes that you are executing elsewhere, if you want to actually administer the sweepstakes through Facebook’s various offerings - even to collect entries or just announce the winner on its pages - the new rules apply to you. (Note, however, that even for a promotion that is simply being promoted through Facebook, no entry can be conditioned “upon taking any action on Facebook, for example, updating a status, posting on a profile or Page, or uploading a photo.”) Aside from rules that come as no surprise, e.g., the promotion must be legal, trademarks cannot be infringed, the advertiser remains solely liable, a few require advanced planning and attention to extra details to ensure compliance with Facebook’s requirements if anything more than promotion will happen on Facebook.

The rules for administering a promotion through Facebook expressly prohibit certain activities, among others: no promotions for those under the age of 18; no promotion of and no prizes that include alcohol, tobacco, dairy, firearms, or prescription drugs; and, no promotion administered at all without the prior review and written approval of a Facebook account representative. On the last requirement, the submission to the account representative must occur at least 7 days before the start date of the promotion. Further, the official rules are required to include certain additional provisions, such as statement that the promotion “is in no way sponsored, endorsed or administered by, or associated with, Facebook”; a “complete release” for Facebook from the entrants; and a description of the use that the advertiser will make of the entrant’s information, i.e., the advertiser’s privacy policy. Advertisers are not permitted to mention “Facebook” any place in the rules except as specifically delineated by the Guidelines. In addition, an advertiser is permitted to allow entry only on the canvas page of a Facebook application or “on an application box in a tab on a Facebook page.” A few other provisions prohibit such things as entry upon the entrant providing content of Facebook, becoming a fan of the advertiser’s page, or signing up for a Facebook account. Finally, an advertiser cannot notify winners through Facebook itself, be it a message, chat, or post on a profile.

In short, there now are some additional rules to follow in some parts of the great social media landscape. With some thoughtful advance planning and agreement to some key provisions, a promotion through Facebook still is possible. And, more expansive options exist if an advertiser is willing to allow Facebook to participate in the promotion execution. Either way, however, attention must be paid and last minute promotions that lack written Facebook approval are not permitted. Facebook is not alone in imposing restrictions to protect its own legal and business interests; and in a technological landscape that changes so rapidly, an advertiser now should heed the terms of the chosen social networking platforms before launching a promotion in that space.

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