Chair, Advertising, Marketing and Media Divisionemail
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:
Our attorneys review advertising and promotional campaigns from the concept stage through final dissemination.
Our work includes:
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.
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.
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.
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.
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.
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
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:
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.
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:
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:
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.
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.
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.
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.
Not Easy Being Green
Ranked Nationally for Advertising Law 2007–2015
Named 2015 Law Firm of the Year for Advertising Law
Ranked Nationally in Tier 1 for Advertising Law 2010–2016
Ranked Nationally for Marketing & Advertising 2009–2015
© 2016 Manatt, Phelps & Phillips, LLP. All rights reserved.