• by Nina Lentini  @Nina_Lentini, January 18, 2007

Two veterans of the tobacco advertising wars laid out a road map yesterday for colleagues in other industries who face any whiff of marketing regulation, warning: "It happened to us and it can happen to you."

Addressing the ANA legal conference in New York, Guy Blynn, vice president and deputy general counsel of R.J. Reynolds, and Geoffrey Beach, a partner at Jones Day, outlined steps taken by the government starting with 1964, when the tobacco industry began to self-regulate, to the day 34 years later when tobacco advertising was banned from virtually every medium.

Noting that the food and beverage industry and related trade associations recently adopted a more stringent form of self-regulation in light of attacks on food advertising to children, the pair cautioned marketers not to count on this to end government intrusion.

"Every time you open your mouth," said Beach, "what you say will raise other issues, and it will go on and on."

The attorneys said any marketer should consider tobacco a cautionary tale. After Reynolds developed specialty cigarettes with slight flavor notes, state attorneys general decided they would appeal to children. Nine months later, Reynolds and the state officials agreed to further restrictions--leading to words and images of fruit, candy, and alcoholic beverages in cigarette ads being limited to one-to-one, age-verified direct marketing, making it "virtually impossible to communicate about our products."

"Many industries are back where we were in 1964," said Beach. "The issues are parallel, with significant social costs coming from obesity [for example]. "This [flavored products] idea was not new to Reynolds," said Blynn, noting that myriad products such as coffee, toothpaste, alcoholic beverages and personal care products use flavoring to appeal to consumers.

Tobacco's master settlement agreement with the states should serve as a blueprint for the potential regulation of controversial industries, they said.

There's "fire in the headlines," said Blynn, and it impacts how brands and marketers are perceived by consumers. "The stakes are greater than merely, 'Must I show a meal being consumed while advertising Pop Tarts?' It might be, 'Is Kellogg's taking advantage of a child?'," he said, using the food giant only as an example.

The attorneys offered food for thought--and action:

Think about the policies you already have in place and how you'll deal with spillover. What are the social costs beyond mere consumption of your product? Think proactively. For example, if some portion of advertising should be devoted to marketing healthier products, what does that imply about marketing non-healthy products?

If you have third parties working for you, ask yourselves how do you control what they do? How will you train your employees on these issues? How will your policies intersect with how you operate your corporate culture?

Educate your employees to be sensitive to how they create communications and share ideas, particularly in light of today's technology, where words are imbedded in files forever. Consider that context is key in e-mail; write what you say and say what you mean because what you write matters and may be around for a long time. Not writing is no answer; it will lead to negative inferences.

Be explicit with your business intentions in marketing plans, brand plans, and media plans.

Raising the fear factor even higher, Blynn and Beach noted that the Federal Trade Commission continues to collect data from the food industry so it can measure advertising to children. When the FTC publishes its report, expect questions about why you advertised this or didn't advertise that, how much you spent on XYZ brand, why you advertised high-calorie versions versus low-calorie ones versus low salt ...

"On and on and on," predicted Beach, "until you are stoned to death with marshmallows."