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Five predictions in marketing from a lawyer

February 14, 2011

Adam Snukal is senior associate at Reed Smith

By Adam Snukal

Although 2010 may not have been a year in which we saw the passing of watershed legislation or game-changing technological innovations, I am a firm believer that we will look back on 2010 and see that it very much laid the foundation for what is to come this year and for the next several years.

Privacy legislation: You will not find a bigger proponent of self-regulation in the area of online/digital behavior advertising and consumer data protection than I.

But alas, I am not sure current efforts – admirable, nonetheless – in this area will be enough to stave off legislation.

Between the two separate consumer privacy-focused bills currently pending in Congress and all of the privacy reports, summaries and studies that seemingly get released in droves these days by one agency after another in Washington that assumes – or better said, presumes – it has a voice in the privacy debate, I see some form of privacy legislation being passed in 2011 an inevitable reality.

Moreover, with a Congress and a Republican Party that earnestly needs to prove it can balance the welfare of Americans as well as the economy, privacy is low-hanging fruit.

Do not be naïve to underestimate the effects and consequences privacy legislation will have on mobile. Geo-targeting has already been tagged as one of the areas legislators see the need to protect.

Mobile marketing: Mobile marketing will finally get the credit it deserves in 2011.

As an attorney who represents advertisers, agencies and networks, I am now seeing a major increase in the number of mobile-related campaigns, projects and deals that come across my desk.

Mobile media buying terms now seem commonplace in media buying agreements.
Mobile site development agreements have replaced the seemingly ancient Web site development agreements, and networks are now pushing mobile to their advertiser clients with vigor.

This, coupled with continued exponential growth in mobile surfing/texting/usage rates, leads me to believe 2011 will be a year of inflection for mobile.

Social media: Who does not have a Facebook page?

By the end of 2011, Facebook members will have exceeded 550 million. If Facebook were a country, it would be third in size, trailing just China and India.

The Facebook databanks have more information on us than any other source worldwide – including, wait for it, your local DMV.

I expect we will figure out how to monetize social media more effectively in 2011, while at the same time establish regulatory parameters for these platforms in the areas of data privacy and online behavioral marketing.

Maybe that will force Facebook to finally figure out a privacy policy that works.

Advertising ABCs: This will be a year in which the Federal Trade Commission and the United States will get back to basics.

By that I mean, advertisers and agencies alike be prepared to have your advertising reviewed, vetted and even litigated.

We are seeing a return to consumer protection enforcement actions with alacrity on all levels – i.e., federal (FTC), state (attorneys general), private class actions and even self-regulatory (NAD).

This point is especially true if your business touches the financial services industry, as you will now have to deal with the newest federal agency on the block – the Bureau of Consumer Financial Protection.

So, whether your advertising strategy consists of claims that require better substantiation, testimonials and endorsements that require more narrowly tailored disclosures, ads about mortgages, credit cards or free checking, bloggers that need to be transparent or anything green-related, make sure you have a good advertising attorney within reach.

Cause-related marketing: Lastly, we saw throughout last year how powerful a tool cause-related marketing can be.

Between the floods in Pakistan, the earthquake in Haiti and political campaign contributions, social media and the mobile device took on another dimension – a channel or pipe for giving.

While we all hope and pray that nothing devastating will occur this year – which includes another federal election – charities and nonprofits will likely harness these tools more effectively in the year to come, though under the guise of greater regulatory oversight.

So, while all this may be much ado about nothing, I am standing behind my predictions.

In fact, I would tell you to take these predictions to the bank, were it not for the fact I am trying to avoid getting on the Consumer Financial Protection Bureau’s radar. I hope 2011 is a winner for everyone.

Adam Snukal is a senior associate at Reed Smith LLP in New York, practicing primarily in the areas of advertising, technology, media and corporate law. Reach him at

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