Spam Gets Cooked

It was a mixed crowd at the Promotion Marketing Association’s annual Law Conference in December — about equal thirds in-house counsel, outside counsel, and non-attorney marketers. Here’s some of what they heard.

‘Can Spam’ Could Spawn Privacy Laws: President Bush is expected to sign the Can Spam Act by Jan. 1, 2004. The federal law will pre-empt spam laws in 35 states and California’s new law, set to take effect Jan. 1, 2004.

One concern is how the Can Spam Act will affect viral campaigns, says John Feldman, a partner at Collier Shannon Scott, Washington, DC. “At what point does a marketing message that consumers forward to their friends become a conversation between private individuals?”

California’s separate Online Privacy Protection Act of 2003 is the first to require Web sites to have a privacy policy, and covers any site that collects data from California residents. Just as California’s spam law served as the impetus for Republicans and Democrats to agree on language for the federal Can Spam Act, the privacy act could spur a federal law, says Alan Sutin, partner with Greenberg Traurig, New York City: “We’ll see privacy regulations unfold…and change rapidly over the next 12 months.”

Keynote speaker George Foreman put in his own two cents about spam. The boxer-turned-preacher says business can learn from religion: “It’s never a good deal unless everyone is happy about it. That’s [the solution] to spam: To make them tune in, make them love you. They’ll never call you ‘spam’ if they love you.”

FTC Plans for 2004: Deputy director Lee Peeler outlined seven marketing-related priorities for the FTC’s Bureau of Consumer Protection, in this order:

• Enforce the Do Not Call list. “This is a hugely popular initiative that the FTC will make sure succeeds.”

• Consider amending the Telemarketing Sales Rule to cut up-selling.

• Crack down on deceptive weight-loss product ads. A new “Red Flags” education guide lists seven claims that media staff should beware when accepting weight-loss ads. “Weight loss was one of the first FTC cases in the 1920s,” Peeler says. “Ads have gone from the back of the book to mainstream media.” Peeler doesn’t expect the scrutiny will spread to other product categories: “The weight loss area is unique. Claims are so outrageous and the science is so well-established that I don’t expect a confluence in other areas.”

• Safeguard data security as part of ongoing consumer privacy protection.

• Track down sources of deceptive spam, and “dedicate significant resources” to enforcing Can Spam Act. “Passage of the legislation is not the occasion to declare victory,” Peeler says. “This is an enforcement issue and a technological challenge for the industry.”

• Keep monitoring consumers’ rebates complaints. “We’re serious about consumers getting rebates when they’re promised. We don’t want manufacturers and fulfillment houses pointing fingers about who didn’t send the rebate check.”

• Pursue fraud of all varieties.

Florida Lightens Up: Marketers no longer have to report prizes of $100 or less to Florida’s Division of Consumer Services (the old threshold was $25). Plus, there’s more leeway than many marketers realize on filing a winners’ list within 60 days of final determination of winners: “All you have to do is communicate with us if your expected date of determination changes,” says division Director J.R. Kelly. “Some people have asked us to set a rule, but I don’t want to hogtie you.” Confusion last year (60 days from the promotion’s end date, or after winners were verified?) resulted in several administrative letters sent to marketers. Kelly may solicit industry input on a rule through PMA this year.