In my last post I wrote about what I did as co-chair of the ACI Social Media, Sweepstakes, and Promotions conference last week. But in addition to being co-chair I was also on a panel during the second day. Our panel had the provocative title “You Better Disclose That: Ensuring that Your Company is Closely Adhering to the FTC’s Endorsement and Testimonial Guidelines.” I know, great title, right? Anything that has “Closely Adhering” is a winner in my book.
I have one rule for conference presentations: they cannot be boring. So I always look for some way to structure the talk or panel to be more than just a bunch of talking heads who take turns at the microphone. Last year at the conference I turned my panel into a game show called “Are You Smarter Than A Social Media Lawyer?” where three other lawyers were asked questions by me (I didn’t tell them the questions in advance because I’m mean like that) and then they had 30 seconds to answer. If the audience wanted more they could yell out “More!”. It was a blast. First, because limiting attorneys to 30 seconds of talking is funny (we’re horrible at that). Second, because it was awesome to hear the audience yelling out “More!” when they really wanted to here more. We covered a lot of ground.
But we couldn’t do that again, so my co-panelists Jim Dudukovich from Coke and Paul Garrity from Sheppard Mullin Richter & Hampton agreed to go along with another game show idea I had. This one was called #enuf or #notenuf. We handed out double sided cards to everyone in the audience; one side read #enuf and the other read #notenuf. Then Paul, as our game announcer, read a hypothetical scenario and asked the audience if the company/person/whatever had done enough under the FTC Endorsement Guidelines. After the audience voted, then Jim and I voted and discussed the answers.
I think the format worked and we had some great discussions. While I won’t give away the answers here unless people are really interested, it was apparent that there isn’t a clear consensus on many issues. Some items were easy to decide (hypothetical 2 is based on the case that defined astroturfing, after all). But others are in the gray area and you needed more information. This area of law is still evolving quickly so it will also be interesting to see if our answers change over time.
For those of you still interested, here are the 20 hypotheticals that we discussed. What do you think on these? Was it #enuf or #notenuf? If you’re curious, comment away and I’m happy to discuss. Maybe we can even get Jim to pitch in.
Scenario #1: Lofty Bloggers
•A fashion store holds a preview even for bloggers only. After bloggers attend they are encouraged to write about the event and fashions. If they send a link to their blog post back to the store they will be entered to win a gift card that could be worth $10 to $500. There is no requirement for the bloggers to mention the special event or the gift card drawing in their blog post.
•Did the fashion store do enough to follow the Guidelines?