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Digital Marketing Under Attack

BY Alan L. Friel
December 27, 2011

The convergence of media and technology continues to change the way we communicate, consume media and engage in commercial transactions. Marketers have been among the greatest digital media innovators and the medium has evolved as largely advertiser supported. That business model is under attack by consumer groups that argue that marketers are unfairly invading consumers' privacy and confusing consumers as to the nature and origin of commercial messages. In Fall 2011, for example, consumer advocates filed a complaint with the Federal Trade Commission (FTC) over PepsiCo's online promotion of Doritos. The complainants want greater restraints and obligations on marketers, particularly those that target teens and young adults with interactive and new media. In the Matter of Complaint and Request for Investigation of PepsiCo's and Frito-Lay's Deceptive Practices in Marketing Doritos to Adolescents. (A PDF of the complaint is available online from Food Politics.com at http://bit.ly/s5u6Hj.)

FTC Act

Marketers should certainly ensure that their campaigns are compliant with '5 of the FTC Act, 15 U.S.C. 45 (http://bit.ly/v9arKc), on which most state consumer-protection schemes are based. Under '5, commercial messages must not be explicitly or implicitly misleading. If additional information is required to prevent deception: it must be clearly, proximately and conspicuously disclosed; any claims made must be substantiated by objective evidence; and statements and practices likely to cause substantial injury to consumers with no countervailing benefit to consumers or competition are deemed “unfair” and prohibited. These rules apply regardless of the advertising medium used.

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