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. On Oct. 19, for example, consumer advocates filed a complaint with the Federal Trade Commission 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 light of this complaint, digital marketers should take several steps to protect themselves from similar allegations.
In particular, marketers should ensure their campaigns are compliant with §5 of the FTC Act, 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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