On Thursday New York’s Attorney General took the unusual step of issuing a set of “best practices” for cause marketing campaigns along with an announcement that they have been adopted by the two largest breast cancer charities, Susan G. Komen for the Cure and the Breast Cancer Research Foundation. Click here for a of Attorney General Eric Schneiderman’s Five Best Practices for Transparent Cause Marketing.
We asked top cause marketing legal experts for their first take on the significance of this move by the NYAG (The attornies will present an in-depth webinar on this subject on November 6th — register here.) Here’s a quick overview of their first impressions:
Force of Law?
Ed Chansky of Greenberg Traurig feels that it’s important to note that these Best Practices are merely recommendations and, “do not have the force of law. However, they do provide insight into the types of practices that the New York Attorney General’s office and other regulators may find to be misleading to consumers, and, therefore, should be given careful attention. In particular, the ‘Best Practices’ reflect a growing frustration with vague disclosures and marketing practices that sometimes leave consumers guessing…”.
Perlman and Perlman’s Karen Wu agrees. “…the best practices, albeit non-binding, will likely further increase the adoption of these disclosures across the industry,” but offers that there is, “always an added tension when best practices are promulgated by regulatory bodies, because the standards can take on the weight of law in the public psyche, even though they do not have the force of law.”
Venable’s Jonathan Pompan and Kristalyn Loson felt that the NYAG took a unique approach to enforcement by engaging Komen and BCRF explaining, “If these two organizations follow the Best Practices for any cause marketing efforts in which they engage, this will have the practical effect of forcing most of the 150 companies in the ‘pink ribbon’ cause marketing space to comply with the Best Practices even if they are not strictly legally enforceable…”.
Gray Areas Galore
Multiple questions should spring to mind when contemplating these new best practices. Here are a few you should be asking (and will be covered in the November 6th webinar), as raised by the attorneys we consulted:
- Will disclosure formats now commonly used on packaging, websites and advertising pass muster under these new best practices?
- Why do charities need to use extra caution in posting information about ‘active and closed campaigns’ on their websites?
- What are the specific recommendations for cause marketing campaigns using social media?
- How detailed does a charity’s mission statement need to be in ‘Best Practice’ disclosure?
- Is the suggestion of donation labels mandate or example?
- How will companies meaningfully estimate the number of purchase when experimenting with new products/services?
Although the attorneys we consulted felt these best practices were a step in the direction of better transparency for cause marketers and consumers alike, they also advise caution and diligence in interpreting these best practices. At least one felt these reforms were “dramatic” and will “radically transform cause marketing”.
This is just the tip of the iceberg. Join us November 6th as Ed Chansky of Greenberg Traurig, Karen Wu of Perlman and Perlman and Jonathan Pompan of Venable pave the way for your comprehensive understanding of these significant best practices.
How is your cause marketing team interpreting these new guidelines? Weigh in below!