Law of Advertising treatise review

David H. Bernstein & Bruce P. Keller, The Law of Advertising, Marketing and Promotions (2011)

Disclosure: I was an associate at Debevoise & Plimpton and I worked on an early draft of the treatise around 2001. According to my best recollection, little of my work survives, as one might expect.

Even with my obvious bias, I think this is a great resource for anyone working in advertising law, and will also save a ton in Westlaw charges if you hand it over to associates just learning the ropes. (Before I started clerking, one of the good pieces of advice I received was to read through the relevant treatise on habeas, which made it much easier to handle many of the cases I saw. I’m not suggesting that anybody but me should sit down and read this treatise through, but pointing a lawyer to the relevant chapter/s could be a big timesaver.)

And while I’m doing self-interested endorsements, I should say that the treatise would also be a great complement to the advertising and marketing law casebook Eric Goldman and I are writing. Anyone interested in teaching a class using our materials should contact me—this year, the materials, which are in beta, will be free to everyone, but we may try other low-cost pricing models for students in subsequent years. We are particularly interested in reaching out to potential adjuncts who’d like to have a full set of materials, including slides and my rather detailed notes, available. We do not yet have a teacher’s manual, but that’s on the roadmap.

But back to Bernstein & Keller: The volume begins with a short overview of the relevant law (with the key sources of regulation being the FTC, the NAD, state AGs, consumer class actions, and competitor lawsuits under the Lanham Act), with summaries that are expanded on in later chapters. The authors tend to focus on competitor suits/NAD claims and add information about other sources of regulation from there. In many cases, they offer checklists or guides for particular issues (e.g., required disclosures for business opportunities, prescription drugs, sweepstakes, and so on). Chapters cover deception generally; substantiation; disclosures and disclaimers; surveys; intellectual property rights (at a gallop, naturally); contests and sweepstakes; direct marketing; online advertising; special advertising issues (drugs, cosmetics, and food; professional advertising; alcohol, tobacco, and firearms; financial services and securities; gambling, political ads; and ads to children); procedure; and remedies.

The treatise pays relatively little attention to the FTC’s revised endorsement guidelines, despite the amount of consternation the guidelines caused when announced.  This is some indication to me that the guidelines aren’t actually much more than updating standard principles. The treatise spends more time on the FTC’s contemporaneous changes/clarifications with respect to substantiation, which are probably more important to the average advertiser. However, this focus also means that some issues involved in affiliate/multi-intermediary campaigns go by very quickly, particularly the ultimate advertiser’s liability for acts of others further down the chain (and some more attention to the endorsement issues for things like gifts to bloggers would have been welcome).

The survey chapter, like the other chapters, is quite detailed and notes instances where current research knowledge is ahead of the precedents, for example, in terms of the pervasive mismatch between stated purchase intentions and actual behavior, with complicated consequences for defining a relevant survey universe. The treatise suggests that a conservative approach—considering only people who have purchased the product/service at issue and also say they intend to do so again—might be one response to that, but cautions that courts might not like it. It’s also not clear to me that people who say they’re previous purchasers are more reliable when it comes to conforming with stated intent. A footnote then suggests that people who say they’re potential purchasers should be counted, regardless of what they later do, because what they say indicates that they are at least potential purchasers, but I’m not sure that follows either (and still leaves us with the problem of what the ads mean to the people who say, and perhaps even think, that they aren’t potential purchasers but end up buying anyway). In the end, there may not be much a surveyor can do to deal with the mismatch, unless the product/service at issue has particular characteristics that make purchases more predictable (e.g., cigarettes and addicted smokers).

There’s similar research uncertainty about the desirability of a “don’t know” option—courts and the NAD love it and may kick out surveys that lack the option, but it also reduces the response rate from people who do have opinions but just want to coast through the survey without a lot of effort in answering follow-ups. The treatise’s citation of relevant marketing research will be a real benefit to lawyers formulating and preparing criticism of surveys.

The Lanham Act standing section is short and does not mention the recent, abominable rise of the Conte Bros./Phoenix of Broward test, an omission that ideally would be corrected by a Supreme Court decision rejecting the test but probably will have to be fixed with an update. By contrast, the NAD/NARB procedure section is extremely detailed, walking the reader through every step; it would be very useful for lawyers considering a first run at NAD.

One thing to be aware of is that there are a lot of NAD decisions on topics such as substantiation and disclosures/disclaimers, among other things, and the treatise cites them extensively. Because NAD decisions are not binding on federal courts, a Lanham Act litigator excited to find a specifically applicable precedent in the main text should check the footnotes before declaring victory.

The print edition comes with a QR code that can be scanned for updates. I haven’t tried that yet, but I will be very interested to see how that works!