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Direct Response Marketing

Facing the Regulatory Music

1 Nov, 2008 By: Thomas Haire Response

Leading legal and industry association experts discuss the current regulatory landscape in direct response marketing.

McClellan: With CAN-SPAM, we were not as active as we were in the first round of negotiations, primarily because we didn't have a lot of organic concern about how the rules would change. Our responsibility is to keep up to speed and keep our membership informed. On the product placement side, we've had a lot of discussions — with the FCC and with people on the Hill that are interested in that. From the industry, there are two sides. Some really think that those who place products in shows should follow the same disclosure rules that an infomercial does. Others feel that they want the ability to place products in shows as a new marketing channel. There's also the concern that once you start opening up that conversation, will the rules as currently constructed for DRTV — that most everyone is comfortable with — be reopened for discussion? It's a delicate issue.

Woolley: First and foremost, DMA has in place its "Guidelines for Ethical Business Practices," which provide individuals and organizations involved in direct marketing with generally accepted principles of conduct. Another of the major ways that DMA educates its members about upcoming issues is via online virtual seminars (Webinars). In recent months, DMA has held Webinars on the Canadian Do-Not-Call registry, new address standards for commercial flat-size mail, and FTC CAN-SPAM rulemaking. DMA provides recordings of the Webinars through its Web site for those who are unable to participate. DMA members are also provided with issue briefs, which summarize legislative and governmental issues that impact direct marketers such as the Internet, telephone marketing and privacy. The issue briefs are intended to give members an overview and summary status of those issues. Additionally, DMA produces "3-D," a summary of each day's direct marketing news from national media and leading trade publications, as well as "Politically Direct," a newsletter designed to keep DMA members informed and involved in the politics and policies that impact them today and keep them ahead of the curve on developments that will affect them tomorrow.

How are different new media — online video, search marketing, mobile — and the regulatory questions they are prompting affecting the job of regulators and trade association leaders?

Woolley: As long as they remain free from unnecessary, burdensome legislation and regulation, new media can provide new growth and new avenues for reaching consumers. Since April, DMA has been evaluating its Guidelines for Ethical Business Practices to ensure that they are applicable to new media. In the coming months, DMA intends to have draft revisions and interpretations for consideration and comment by the association's membership. In updating these guidelines, our goal is to respect the choices and privacy of consumers while not stifling new innovation, as the new channels continue to emerge and grow. Additionally, DMA has developed advisory boards — including one focused on mobile marketing channels — and these boards will be instrumental in guiding DMA's policies on emerging issues.

Knowles: For regulators and trade association leaders, new media and the convergence of traditional marketing methods with online and mobile has made the industry much more complex and interesting. Both sides need to understand business and technological changes to the industry in order to regulate or self-regulate effectively, as the case may be. More than ever, businesses are facing varying types of scrutiny by multiple regulators like the FTC, the FCC and others, requiring increased cooperation among regulators and greater outreach efforts from trade association leaders.

Goldstein: New media platforms have created a great deal of regulatory uncertainty because the law has not kept pace with the changes in technology. Many of the laws and regulations that govern advertising and marketing practices were written with traditional media in mind and cannot be easily adapted to new media platforms. Industry leaders must therefore try to anticipate how the regulators will apply existing laws to this new media, and the regulators in turn must gain a greater understanding of the limitations and constraints of some of the new media formats. Fortunately, in recent years, the FTC has welcomed input from industry leaders to gain a better understanding of new technologies and media platforms to help avoid regulation that would stifle innovation or the growth of new media outlets.

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