Understanding Marketing Regulations: Fundamentals to Know

Understanding Marketing Regulations: the Fundamentals you Need to Know

by Jonathan Blank

5 minute read

No one likes getting sued. Or pulling down their hard-earned content because you stepped on the wrong legal toes. NewsCred’s Director Of Services Jonathan Blank shares some insights on the marketing regulations and legal pitfalls brands need to know when they start a content marketing strategy. 

They say a “dog is man’s best friend.” For those of us in marketing, and specifically marketing in regulated industries, I disagree. Marketing’s best friends can be found in legal and compliance. We need to know them well so they will explain the U.S. Federal Trade Commission Act or the European Union privacy laws in plain English to us. We need to befriend them so they’ll put their stamp of approval on our blog posts, our Tweets, and most importantly our strategies.

We should not have to lean on our dear legal friends as much as we do though. We should know the basics and intent of marketing regulations before we develop our strategies, posts and Tweets. By better understanding marketing regulations, including advertising and communications laws, we should be able to:

  • Get approval to move forward with more effective marketing programs than competitors who act with a more black and white view of what is and is not possible.
  • More collaboratively work with legal and compliance to develop safeguards that simultaneously mitigate risk and protect the integrity of the marketing strategies we are putting in place.
  • Allow us to get closer with our audiences. The trends buoying content marketing and social media marketing are all about audience insights and providing value to our audiences. If we can intelligently talk with our legal counterparts, we can show them that we can get closer to our audiences without incurring significant risk.

During your next planning session, take into account these three regulations. These are US marketing regulations (we’ll get into the marketing regulations of other countries in a subsequent post for those marketers), but provide some sound ethical principles for marketers from around the world. Please take this as an overview instead of legal advice (I don’t even play a lawyer on TV).

FTC Endorsement Guides and Disclosures

A 2014 survey by IZEA, a company that acts as middleman between brands and social media influencers, found that 29% of marketers were unaware of the Federal Trade Commission’s (FTC) marketing regulations on disclosures. I hope you are among the 70% who at least know these guidelines exist. The FTC communications folks have put together a nice summary of “What People Are Asking” when it comes to their Marketing Endorsement Guides. The primary issues that the Endorsement Guides cover include:

  • Marketing endorsements need to be honest: You should check that your paid endorsers or influencers have actually used your product or service. You don’t want to be in a situation where your endorsements could be described as “fraud.”
  • Disclosures should be “clear and conspicuous”: Let us unearth disclosures from pages ten clicks into a site or whispered at the end of a video. If you incentivize endorsers or influencers in any meaningful manner, you should educate these influencers to follow the FTC guidelines and, separately, to use a version of the following phrase, “I am an official partner of <company> and received <products, considerations, content> from them to <review, beta test, share etc.>,” when appropriate. Again, I am not a lawyer and don’t play one on TV. So you’ll want to work with your legal counterpart on specific language, but you should get the idea.
  • Available space for a disclosure is not an excuse: Yes, the FTC expects to see disclosures on Twitter as well as on blogs, Facebook and other channels with more than 140 character limits. The FTC specifically notes in their “What People Are Asking” document that “the words “Sponsored” and “Promotion” use only 9 characters.” Touche.

The FTC even opened a research division to keep up with digital trends and highlight how they may affect consumer’s perceptions of products and services. While the FTC is adapting its guidance for a social, mobile and Internet of Things world, the government agency is making it clear that it’s intent is relatively timeless. The FTC wants to make sure marketing campaigns are not misleading. Consumers should know if influencers could be biased based on a material relationship with a brand.

FTC Policy Statement and Substantiation

We spend a lot of time developing and testing messages to persuade consumers. As we go through the process of refining messages, we often are focused on whether the message will change consumer behavior. The FTC wants us to focus more headspace on whether the messages can be backed up by evidence. Specifically, we need to have a “reasonable basis” for our claims, according to the FTC Policy Statement on Advertising Substantiation.

As we shift budget from traditional advertising to content marketing, we should consider what our topical and educational content implies about the uses and potential impact of our products and services. For example, does an article by a mobile phone company about how emojis improved communications between a couple, and helped save their marriage, imply that the company’s mobile phone will save your marriage? While this example is a bit silly (for effect), it does illuminate the types of conversations we need to have with our legal counterparts.

CAN-SPAM and Opt-Outs

Apparently, the U.S. Congress compares marketing to pornography. The name of the law that regulates email marketing is “Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM).” Not joking. This law suggests that:

  • Subject lines should not be false or misleading. As you develop and test headlines to get people to click further, remember to do a gut check that your subject lines are truthful.
  • Non-solicited commercial email should include an easy way to opt-out. I think the U.S. Congress actually foreshadowed the importance of garnering subscriptions to content. CAN-SPAM was passed in 2003 before social media and content marketing were trends in business. Yet the politicos recognized audiences should be able to choose what content they receive. Now many of us marketers focus on opt-ins and subscriptions.

Your action items are to check that your emails clearly identify who the emails are coming from, what they contain, and how to change subscription settings.

These laws actually provide great foundations for our marketing strategies. Be transparent. Be truthful. Get people to opt-in. This is why I’m friends with lawyers.


Jonathan Blank is Director of Services at NewsCred. This post originally appeared on his blog.