Ad Lawyers' Predictions: Data Will Be King, Disclaimers Will Disappear

A group of ad attorney gurus gazed into their crystal balls to give some provocative predictions of the regulatory and legal hurdles advertisers will face in 10 years. 

The prognostications led off the Association of National Advertisers’ ad law and public policy conference Tuesday in Washington, the annual confab that helps ad lawyers keep their clients and companies out of the courts and free of FTC enforcement.

"Disclosures are in a word -- a bitch for advertisers and boring to the consumer -- but if disclosures are missing or buried in the fine print, the FTC will come down hard on the advertiser," said Rick Kurnit, partner, Frankfurt Kurnit Klein & Selz PC.

So here’s the good news: “Disclaimers are probably a thing of the past…. There will be no advantage of brands to create offers that require disclaimers and disclosures that counter the offer…. There will be an app and you will be sent to [already available] information that will debunk any misleading or deceptive offers. The consumer will be totally in control…. The consumer can get the information by clicking on the [brand] name [on the device], which is the only place consumers read an offer.”

Stu Ingis, partner, Venable LLP, added: "Big Data’s role is already dominating advertising. But brace yourself -- it’s about to dominate even more. “Data is the medium. It used to be content is king; data is officially king. Data will not come to TV; TV is coming to data….But data isn’t everything. It’s not king. Technology and algorithms will replace the type of data that used to exist…and it will all exist in the device…. The consumer will decide what is appropriate [in terms of privacy].”

"A recent FTC enforcement case brought against Nissan involved a demo of a Nissan truck pushing a jeep up a sand dune," Ron Urbach, partner, Davis & Gilbert LLP, told the audience. "To stage the demo, hidden cables were used. The FTC pounced. But in the decision, the FTC said that nothing in the order should preclude “production techniques.” The question was not if the truck actually did it, but if it could do it."

“The future is such that everything can be computer-generated images; you won’t be doing live demos. It will be presented as real, and as long as it’s factually true, it is a material representation.”

Doug Wood, partner, Reed Smith LLP, told attendees that "a lot of things happen in the digital media and advertising ecosystem (think programmatic) that might as well be magic. Consumers have no idea how an ad got to them and ad fraud and rogue Web sites are sucking up $8 billion a year of ad dollars, everyone from regulators in Washington to advertisers and consumers are demanding transparency. He added, "the arguments between CMO and CFO are going to become more focused.”

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