• Advertising, Marketing and Media

    Hundreds of emerging technologies are changing the rules of advertising. So how can you harness these breakthroughs to market your products efficiently, effectively, and within both written and “unwritten” laws?

    Through every milestone of a product’s life cycle, Manatt will help you establish and protect rock-solid, competitive, proprietary campaigns and product-positioning platforms. Whether you have an established brand with market share to protect and expand, or a new product that will require an unconventional marketing approach to generate awareness, Manatt will provide the guidance you need to make the boldest and most effective competitive statements.

    And as spending shifts from mass media traditional advertising to targeted alternative advertising that incorporates user-generated content, blogs, incentivized viral messages, mobile text messages and social networking communities, we’ll help you navigate this uncharted legal territory. Because we’ve honed in on the issues, tracked the trends and anticipated how government regulators are likely to react, we can provide the insight you need to inform your decisions.

    Here is what the leading legal publications say about Manatt’s Advertising, Marketing and Media practice:

    “[Manatt’s] primary focus is on the representation of brands in their advertising efforts across media platforms, wedding IP expertise to considerable experience in regulatory matters before the FTC and National Advertising Division (NAD), and a strong presence in advertising litigation.”
    –Legal 500

    “[Manatt’s] clear specialty lies in examining claims being made through advertising, both stated and implied, and it is also seen as one of the most active [firms] at NAD.”
    –Chambers USA

    Core Areas of Focus

    Our national practice is centered around a group of highly experienced and successful New York-based advertising lawyers, a comprehensive West Coast entertainment and media presence, and an advertising litigation and regulatory base in Washington, D.C.

    Our experience extends to disciplines that are subject to varied and complex rules, regulations and requirements, including:

    • Review of advertising campaigns and promotional materials
    • Marketing and sales practices
    • Emerging media, including social networks and blogs
    • Sweepstakes, games and contests
    • Mobile marketing
    • Telemarketing and e-mail marketing
    • Green marketing
    • Marketing directed to children
    • Dietary supplements, cosmetics and functional foods
    • Branded entertainment
    • Industry agreements
    • NAD and false advertising litigation
    • FTC investigations and enforcement actions
    • State attorney general litigation
    • Consumer product safety laws

    Areas of Focus

    Review of Advertising Campaigns and Promotional Materials

    Our attorneys review advertising and promotional campaigns from the concept stage through final dissemination.

    Our work includes:

    • Reviewing substantiation for express and implied claims;
    • Designing and/or reviewing market research, tracking studies, published studies, and consumer perception studies to determine how claims are interpreted by consumers and whether appropriate substantiation exists to support the desired claims;
    • Designing studies to support proposed advertising claims or to challenge competitors' claims;
    • Advising on all pricing-related issues, savings claims, discounts, coupons and rebates;
    • Advising on right of privacy and publicity issues and the likelihood of challenges;
    • Identifying trademark, copyright, and other intellectual property issues that arise in advertising;
    • Ensuring that advertising materials comply with federal and state laws and brand category-specific regulatory requirements;
    • Working with clients to structure promotional offers;
    • Conforming advertising campaigns to the policies, standards and guidelines of all media; and
    • Answering any challenges by third parties.

    Marketing and Sales Practices

    Monitoring regulatory developments that impact marketing offers, sales practices and consumer incentives is an integral part of our business. Every day we review or assist in structuring countless free trial offers and continuity programs, affiliate marketing plans, pricing claims, gift card programs, rebates, refunds, product warranty claims, and telemarketing offers. At both the federal and state level, we maintain 50-state surveys and will provide time- and cost-efficient advice on the laws surrounding these offers without the need for additional research or expense.

    Emerging Media, Including Social Networks And Blogs

    Manatt attorneys are deeply involved with the new and non-traditional ways in which marketing messages are delivered to the consumer, and our work is challenging and dynamic. In fact, on any given day, we may be advising the Word of Mouth Marketing Association (WOMMA) on blogging and endorsement regulation; reviewing the application of social media platforms to drug and medical device advertising; helping a global consumer products company to develop a social media policy; developing a “Mommy” blogging policy; assisting the JFK Library in promoting its Web site commemorating the 40th anniversary of the Apollo 11 mission to the moon; or negotiating terms for brand ambassadors to monitor and engage on social networking sites. Our work entails providing advice and counsel on issues relating to the adequacy of disclosures, state consumer protection laws, the Federal Trade Commission’s guides on the use of endorsements and testimonials, CAN-SPAM compliance, the use of third-party intellectual property and the applicability of the fair use doctrine.

    Sweepstakes, Games and Contests

    Our firm is a recognized leader in the design, structure, compliance and defense of promotional games. In recent years, as sweepstakes and contests have become an established means of generating online activity, our team has been out front – helping to set standards for constructing, advertising and disclosing sweepstakes online, working with the Association of Attorneys General Subcommittee on Sweepstakes Promotion, and working with industry groups to modify legislation containing onerous disclosure requirements.

    We count the following among the many projects we have recently completed: advising on the structure of and rules governing a brand-sponsored online user-generated content competition among filmmakers, a retailer-sponsored online essay contest, a TV show’s text-to-win sweepstakes, and a technology company’s skill game challenging developers and students to create an Internet application using its product.

    Mobile Marketing

    Since the emergence of mobile marketing, text messaging and participatory TV, Manatt has been at the forefront of shaping policy and working with brands, entertainment companies, and promotion agencies to structure mobile marketing campaigns. We have worked with the Mobile Marketing Association to help ensure a balanced regulatory environment, defended sponsors of premium-based text message sweepstakes in class action lawsuits alleging that the games constitute illegal gambling, obtained carrier approval of mobile marketing campaigns; examined privacy and data security issues relating to the conduct of mobile marketing campaigns, and drafted disclosures, terms and conditions and terms of service for mobile marketing campaigns.

    Telemarketing and E-Mail Marketing

    A significant portion of our practice is devoted to counseling clients on issues applicable to communications with existing and potential customers through telephone and e-mail. We review telemarketing scripts; advise clients with respect to compliance with federal and state telemarketing and e-mail marketing laws; work with clients to develop compliance and monitoring guidelines and procedures; and negotiate and draft outsourced vendor agreements.

    Because telemarketing and e-mail marketing are often subject to regulatory scrutiny, we monitor legal and legislative developments on an ongoing basis and maintain up-to-date surveys of legal and statutory requirements. As such, we are well equipped to respond to our clients’ questions and concerns efficiently and effectively.

    Green Marketing

    As consumers are increasingly making purchasing decisions based on environmental benefits, federal and state regulators are intensifying their scrutiny of marketing messages claiming attributes such as “carbon-neutral,” “sustainable,” and “eco-friendly,” among others. Any company launching or conducting a green marketing initiative will need a legal team to help support its strategies – strategies designed to capture consumer attention, increase sales, and communicate corporate responsibility. That team is Manatt.  Read more

    Marketing Directed to Children

    Child-directed marketing has received unprecedented regulatory attention in recent years, —witness the FCC’s review of the susceptibility of children to product placements and tie-ins, CARU’s food and beverage initiative, and the FTC’s focus on protecting the privacy of children under the age of 13. Manatt attorneys have been integrally involved in the ongoing dialog surrounding federal regulation:

    • We have participated in FTC-sponsored workshops;
    • We have submitted written comments to the FTC relating to privacy and data security, including workshops resulting in the promulgation of the Commission’s rules pursuant to the Children’s Online Privacy Protection Act (COPPA); and
    • We have testified on behalf of industry organizations during FTC hearings.

    Dietary Supplements, Cosmetics and Functional Foods

    Manatt’s advertising and marketing team includes attorneys whose practice is devoted to Food and Drug Administration regulation. We are well known for our experience in the regulatory requirements that apply to foods, dietary supplements, OTC drugs, cosmetics and medical devices.

    Clients turn to us for advice and counseling on how to comply with the FDA’s rules governing health claims, qualified health claims, and nutrient content claims. In addition, we advise clients on the often blurry line between acceptable “structure/function” claims and impermissible “disease” claims for conventional foods and dietary supplements.

    Branded Entertainment

    The successful integration of brands into entertainment properties is a complex business, requiring experience in how to structure deals that will maximize the value received on all sides. It also creates new questions and concerns regarding ownership of intellectual property, financing, apportioning of liability, and creative control, among others. Manatt is the first law firm to have a practice devoted to sourcing, negotiating and managing branded content deals for feature films, television, new media, music, and video games.

    Our attorneys represent the interests of all key business and creative players – advertisers, advertising agencies, producers, major motion picture studios, television and music companies, talent agencies, talent managers, and technology companies – in structuring and memorializing innovative brand integration and activation arrangements.

    Our work also encompasses:

    • Identifying opportunities for brands to integrate into film, television, music, Internet and mobile device;
    • Allocating business responsibilities among all parties;
    • Participating in the preproduction process to write “integrations” into screenplays/teleplays;
    • Ensuring consistent brand messaging and desired business outcomes during production, postproduction, and the activation/marketing/ distribution period;
    • Budgeting, ownership and financing issues;
    • Determining applicability of traditional advertising laws;
    • Assessing liability in the event of government intervention;
    • Analyzing entertainment guild/union issues; and
    • Securing third-party rights clearances and protecting IP assets.

    Industry Agreements

    The Manatt team has negotiated and drafted virtually every type of agreement that governs the relationships between parties involved in the development, creation, production and dissemination of advertising and marketing messages, and many of our forms and templates have become the gold standard for the industry. Included among them are the following:

    • Agency-client agreements;
    • Media buying agreements;
    • Talent and celebrity endorsement contracts;
    • Sponsorship and sports marketing agreements;
    • Brand integration, activation and product placement agreements;
    • Promotion services agreements;
    • Affiliate marketing agreements;
    • Licensing agreements for musical compositions, sound recordings, and literary works;
    • Production and distribution agreements for motion pictures, television, home video and DVD; and
    • Copyright agreements for the transfer of traditional works to digital media and the Internet.

    NAD and False Advertising Litigation

    Manatt’s advertising team is distinguished by its deep bench in advertising regulation and litigation. Not only are we among the few firms that have lawyers who actually specialize in false advertising self-regulatory disputes and litigation, but we also have industry leaders in substantive advertising law and doctrine in virtually every forum where it is applied, whether federal and state courts and agencies, the television networks, the state attorneys general, or the Council of Better Business Bureaus’ National Advertising Division (NAD). This experience enables us to find solutions that others may miss.

    FTC Experience

    No other law firm in the country has handled as many FTC and state attorneys general investigations and enforcement actions as Manatt over the last few years. We have defended many clients in response to highly sensitive Civil Investigative Demands and other inquiries, and have an excellent record of resolving such actions amicably with the Commission, either by convincing the Commission that enforcement proceedings should not be initiated or by negotiating favorable settlements on our client’s behalf. In the few instances where we have not been able to negotiate a favorable settlement, our litigation team has been effective in mounting a strong defense. In fact, Manatt attorneys have served as defense counsel on some of the highest-profile FTC cases in recent years.

    State Attorneys General Experience

    The Manatt team shares decades of experience representing clients in proceedings brought by individual and multistate attorneys general. Similar to our FTC experience, our professionals are successful in negotiating reasonable settlements and in persuading state attorneys general not to file formal actions against our clients. We have substantial relations with state AG offices nationally through our connections with the National Association of Attorneys General (NAAG). In fact, one of our attorneys was awarded the NAAG’s Marvin Award, which is given, at most, to five assistant attorneys general per year for outstanding leadership and experience.

    Consumer Product Safety

    Manatt guides clients through a challenging regulatory environment in matters before the U.S. Consumer Product Safety Commission (CPSC). We have a long history of assisting clients in all aspects of compliance issues and CPSC actions, from reporting to recalls, enforcement actions, penalty investigations and litigation.

    A wide variety of major manufacturers, retailers, importers and distributors of consumer products seek our advice and counsel on how and when to report potentially hazardous products to the CPSC and on effectively addressing the regulatory and public relations issues they encounter in this process.

    When a product is recalled, we work directly with CPSC staff to establish and implement an effective corrective action plan, and negotiate appropriate notice to consumers and trade partners. When a corrective action is necessary, we help clients conduct effective product recalls and minimize adverse publicity. Our attorneys develop strategies to meet safety and reporting requirements, minimize product liability exposure and minimize civil penalty exposure. In the face of penalty proceedings, Manatt assists clients in responding to agency requests, negotiating a resolution and defending penalty cases that cannot be resolved with the agency.

    Attorneys & Professionals

    Aronson, Lauren B. Washington, D.C. 202.585.6538
    Barkow, Michael New York 212.790.4590
    Brody, Jesse Los Angeles 310.312.4173
    Brown, Donald R. Los Angeles 310.312.4318
    Brunswick, Alan M. Los Angeles 310.312.4213
    Caginalp, Aydin S. New York 212.790.4610
    Chambless, Sarah Fergusson Los Angeles 310.312.4255
    Cooke, George A. New York 212.790.4538
    Edelstein, Jeffrey S. New York 212.790.4533
    Goldstein, Linda A. New York 212.790.4544
    Kaufman, Kenneth M. Washington, D.C. 202.585.6532
    Lavie, Jen Deitch New York 212.790.4595
    Lawson, Richard P. New York 212.790.4539
    Melton, Holly A. New York 212.790.4559
    Roth, Marc New York 212.790.4542
    Seiling, Brad W. Los Angeles 310.312.4234
    Shah, Suemyra A. New York 212.790.4519
    Sutton, La Toya Washington, D.C. 202.585.6575
    Washburn, Jr., Charles E. Los Angeles 310.312.4372
    Wasserman, Ivan J. Washington, D.C. 202.585.6529

    Advertising, Marketing and Media

    Selected Clients

    • Best Buy Co., Inc.
    • Diageo North America
    • Eveready Battery Company, Inc.
    • The Reader's Digest Association, Inc.
    • The Coca-Cola Company
    • Ticketmaster
  • Awards & Rankings

    logo/img/@altRanked Nationally for Advertising Law 2007–2015

    logo/img/@altNamed 2015 Law Firm of the Year for Advertising Law

    logo/img/@altRanked Nationally in Tier 1 for Advertising Law 2010–2016

    logo/img/@altRanked Nationally for Marketing & Advertising 2009–2015