ACI’s 6th Annual Legal, Regulatory and Compliance Forum on Advertising Claims Substantiation - DS

EARN CLE CREDITS

6th Annual

Legal, Regulatory and Compliance Forum on

Advertising Claims Substantiation

DISTINGUISHED CO-CHAIRS: Amy Mudge Partner and Co-Chair Advertising, Marketing and Digital Media Team Baker & Hostetler LLP

Your Guide For Developing Successful Claims Substantiation in the Evolving Advertising Landscape

Kimberly Wong Brands and Data Practice Group Lead, Senior Corporate Counsel Kellogg Company

February 9–10, 2023 | New York, NY

Pre-Conference Workshops: February 8 - Ad Claims 101 and NAD Working Group Post-Conference Workshop: February 10 - Substantiating Ad Claims

HIGHLIGHTS FOR 2023: Special Q&A session with the FTC and the NAD:

Spotlight on Successfully Substantiating ESG claims with:

Serena Vishwanathan Associate Director, Division of Advertising Practices, Bureau of Consumer Protection Federal Trade Commission Laura Brett Vice President, National Advertising Division (NAD) BBB National Programs

PLUS! In-House Insights from: REGISTER NOW

Think Tank on Claims Substantiation in the Metaverse and NFT Advertising

Sally Davis Senior Director, Counsel S.C. Johnson & Son Inc.

Jessica Jonas Associate General Counsel Gemini

La Toya Sutton Director, Legal Clorox

Diana Stern General Counsel Palm NFT Studio

» 3M

» Council for Responsible Nutrition

» PayPal

» Colgate-Palmolive Company

» Henkel Corporation

» T-Mobile

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Find solutions to the challenges of substantiating claims in this new era of advertising American Conference Institute (ACI) is pleased to announce that the 6th Annual Legal, Regulatory and Compliance Forum on Advertising Claims Substantiation will be back in-person in New York City on February 9–10, 2023.

While the modalities of advertising may change, advertising’s core tenant of claims substantiation remains an unwavering constant.

As such, legal and regulatory professionals in marketing and advertising set their calendars for this industry-leading event each year and recognize it as the premier source of information and practical guidance in this area of practice!

The Metaverse Will Change How Companies Advertise and Raises a Host of Anticipated Claims Substantiation Challenges

Green Claims are to Evolving and ESG Claims Are Adding a New Layer of Complexity to this Area

The Metaverse – represents the next generation of the digital age and presents a whole world of legal dilemmas for advertisers and marketers, including anticipated claims substantiation challenges. Attend this event to understand the legal implications of advertising in the metaverse.

Explore the risks of claim substantiation with NFTs and understand data privacy and ethical concerns when dealing with claims in the virtual world.

Green claims are becoming more sophisticated, and allegations of greenwashing abound. As more and more companies adopt ESG frameworks, claims associated with environmental, social, and governance obligations are becoming more scrutinized by consumers and shareholders alike.

Moreover, unsubstantiated claims can also run companies afoul with the SEC. Join us for in-depth discussions and analyses of the latest environmental and social claims substantiation challenges.

Understand the Risks of Dark Patterns and How They Are Affecting Advertising Claims

Influencers and Endorsers Are Not Going Away Anytime Soon and Neither Are Their Claims

Dark patterns, the latest mode of deceptive digital practices is growing advertising concern as well as an area of focus by the FTC and state AGs. We will examine the threat dark pattern use poses to advertising claims, what the regulators are looking at, and how to avoid these suspect practices.

With the significant increase of influencers and endorsers, the risks of unsubstantiated claims in this arena continue to rise. We will examine the risks and benefits of using influencers and endorsers, the substantiation challenges they pose, and how to employ crisis management tactics when influencers and endorsers go rogue.

The Plaintiffs’ Bar Continues Its Onslaught of Advertising Claims Class Actions We will analyze new trends and decisions in advertising claims class actions based on everything from country-of-origin claims, health and wellness, natural, etc. We will help you understand how these class actions will affect claims in future advertising campaigns as well as your company’s bottom line.

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Distinguished Faculty Co-Chairs:

In-House Counsel and Executives: Caleb Brian New Product Claims Specialist Stationery and Office Supplies Division 3M

Amy Mudge Partner and Co-Chair Advertising, Marketing and Digital Media Team Baker & Hostetler LLP

Maura Cardani North America Associate General Counsel Wunderman Thompson

Kimberly Wong Brands and Data Practice Group Lead, Senior Corporate Counsel Kellogg Company

Andra Dallas Senior Counsel, Advertising & Marketing PayPal Sally Davis Senior Director, Counsel S.C. Johnson & Son Inc.

Government and Advocacy Groups: Serena Vishwanathan Associate Director, Division of Advertising Practices, Bureau of Consumer Protection Federal Trade Commission Laura Brett Vice President, National Advertising Division (NAD) BBB National Programs Eric Unis Senior Attorney, National Advertising Division (NAD) BBB National Programs Debra Policarpo Senior Attorney, Children’s Advertising Review Unit BBB National Programs

 Who You Will Meet?

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Chris Grenz Principal Corporate Counsel T-Mobile Jessica Jonas Associate General Counsel Gemini Barry Ritz Vice President and Head, U.S. Regulatory, Scientific & Medical Affairs Nestle Health Science Limor Robinson Mann Chief Marketing & Disruptive Innovation Counsel, Global Colgate-Palmolive Company

Megan Olsen Senior Vice President & General Counsel Council for Responsible Nutrition Diana Stern General Counsel Palm NFT Studio La Toya Sutton Director, Legal Clorox Debora Welch Assistant General Counsel, NA Beauty Professional Henkel Corporation

Law Firm Speakers: Jennifer Adams Partner Amin Talati Wasserman LLP Barry Benjamin Partner Kilpatrick Townsend & Stockton LLP Eric Ball Partner Fenwick Katie Bond Partner Latham GPM LLP Christopher Cole Partner & Chair, Advertising, Marketing and Promotions Katten Muchin Rosenman LLP

In-house counsel and business executives responsible for: y y y y y y

Advertising and Promotion Social Media Digital Marketing/Communications Corporate Communications Interactive Marketing Entertainment/Media

y y y y y y

Emerging Technologies Brand Management and Development Crisis Communications Public Relations Intellectual Property Privacy

Pamela Deese Partner Arent Fox Schiff LLP John Feldman Partner Reed Smith LLP Nancy Felsten Partner Davis Wright Tremaine LLP John Graubert Senior Counsel Covington & Burling LLP David Mallen Partner Loeb & Loeb LLP Jennifer Malloy Of Counsel Venable LLP Gonzalo Mon Partner Kelley Drye & Warren LLP Anna Naydonov Partner White & Case LLP James Stewart Senior Associate DLA Piper Hannah Taylor Partner Frankfurt Kurnit Klein & Selz PC Ronald Urbach Partner Davis+Gilbert LLP

Outside counsel with practices in: y y y y

AmericanConference.com/Advertising-Claims-Substantiation • 888 224 2480

Advertising Marketing Retail Law Entertainment/Sports/Media

y Privacy y Intellectual Property y Technology and Digital Media

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Pre-Conference Workshops - Wednesday, February 8, 2023 A

Due to the hands-on nature of the workshops, they are available for in-person attendees only.

9:00 am–12:30 pm (Registration starts at 8:30 am)

Advertising Claims 101: The Building Blocks of a Successfully Substantiated Advertising Campaign

microphone-alt Barry Benjamin, Partner, Kilpatrick Townsend & Stockton LLP Pamela Deese, Partner, Arent Fox Schiff LLP The session will provide a comprehensive overview of both the content and terminology used to support claim substantiation for product and service advertisements, as well as the higher standards applied to comparative claims. Whether you are new to the industry, or an advertising professional interested in a refresher, this pre-conference workshop will provide the foundation for the main conference.

Points of discussion will include: • When is substantiation required? Benefits of truthful claims • Defining key advertising terms relative to claims substantiation » Claim » Competent and Reliable » Reasonable basis » Highest possible standard • How much substantiation is needed? » Tests Prove » Doctors Recommend » Studies Show » Health and safety claims • Differentiating between different types of claims » Express vs. implied • What evidence is necessary to substantiate a claim? How to examine the quality of the substantiation—it is not all created equal • Exploring the role of statistics and scientific evidence in the claim substantiation process • Examining testing requirements used to substantiate claims

• • • • • •

• • • • • • •

» Are the tests required dependent on the type of claim? » How do these tests differ based on the product or service?

Using experts, consumer surveys and other extrinsic evidence to determine what an ad conveys How to appropriately use qualifications or disclosures in advertising Comparative claims: pitfalls and standards Exploring ways in which a substantiated claim may be utilized Understanding the interplay between marketing and legal departments when making a claim on a product or service Identifying regulatory bodies and watchdog groups that monitor advertising—there are real consequences to false claims » FTC » CARU » State Regulatory Agencies and » Network Reviews Attorneys General Offices » Advertiser Litigation » NAD » Class Actions Examining the steps in the creation of an advertising campaign relative to claims substantiation Understanding how the requirements for substantiation change when working with a new product vs. an established product Ensuring the method matches the message Key language to use and avoid in an advertisement Successfully displaying a stated goal Understanding when a trademark can be considered a claim Using US origin as a claim

12:30 pm–1:30 pm

Lunch & Networking Break for Attendees of Workshop A & B Only

B

1:30 pm–5:00 pm (Registration starts at 1:00 pm)

NAD Working Group: A Guide to Appearing Before and Working with the NAD featuring a Mock NAD Proceeding

microphone-alt Eric Unis, Senior Attorney, National Advertising Division (NAD), BBB National Programs John Feldman, Partner, Reed Smith LLP Founded by the U.S. advertising industry as a means of self-regulation, the NAD is the watchdog of all advertising claims in the U.S. As such, navigating the NAD and its proceedings is an essential competency for every attorney working in the advertising and marketing space. This interactive workshop will provide insights into handling NAD proceedings as well as working with this consumer advocacy group. Our workshop leaders will help you:

4 | #AdvertisingClaims

• • • • •

Develop a working knowledge of how the NAD functions and its review systems Assemble a checklist on the essentials and protocols of appearing before the NAD Identify common red flags for NAD relative to unsubstantiated claims Navigate your way through an NAD Proceedings Establish best practices that can help you work with the NAD to find common ground in clarifying a claim

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MAIN CONFERENCE DAY ONE - Thursday, February 9, 2023 7:30

Continental Networking Breakfast and Registration

8:30

Co-Chairs’ Opening Remarks microphone-alt Amy Mudge, Partner and Co-Chair Advertising, Marketing and Digital Media Team, Baker & Hostetler LLP Kimberly Wong, Brands and Data Practice Group Lead, Senior Corporate Counsel, Kellogg Company 8:45

2022 Year in Review: A Look Back on Key Legal Developments and Trends Impacting Advertising Claims Substantiation

• Understanding how to substantiate the “S” in ESG » Substantiating claims surrounding social obligations companies have in today » What proofs are required to ensure DEI and human rights protection compliance in ads?

• Confronting broad claims on ESG performance and establishing what the next steps are to continue on the path to satisfying those claims • Understanding how unsubstantiated ESG claims may run afoul of the SEC • Differentiating between claims made to investors vs. consumers and determining tactics to rectify these claims 10:15 10:30

Spotlight Session: Q&A with the FTC and the NAD microphone-alt Serena Vishwanathan, Associate Director, Division of Advertising Practices, Bureau of Consumer Protection, Federal Trade Commission

microphone-alt Amy Mudge, Partner and Co-Chair Advertising, Marketing and Digital Media Team, Baker & Hostetler LLP Kimberly Wong, Brands and Data Practice Group Lead, Senior Corporate Counsel, Kellogg Company Join us for an interactive discussion about significant advertising claim substantiation developments and trends in 2022 and predictions for 2023. Points of discussion will include: • Highlights of recent cases and actions taken by the FTC, NAD, state AGs and private plaintiffs which have impacted the world of claims substantiation • Policy changes and federal regulations that have affected claims substantiation in 2022 • Emerging regulations, industry trends and initiatives to watch in the claims substantiation sphere

Morning Coffee Break

Laura Brett, Vice President, National Advertising Division (NAD), BBB National Programs Join us for this much anticipated discussion with Serena Vishwanathan from FTC and Laura Brett from the NAD. These renown consumer protection advocates will discuss current initiatives and investigations into the truth and accuracy in advertising.

11:30

Claims Gone Wild: An Interactive Review Guide to Correcting and Avoiding Unsubstantiated Claims in Advertising microphone-alt Caleb Brian, New Product Claims Specialist Stationery and Office Supplies Division, 3M

9:15

Substantiating ESG Claims: Examining the Next Shades of Green and Socially Conscious Claims microphone-alt Sally Davis, Senior Director, Counsel, S.C. Johnson & Son Inc. LaToya Sutton, Director, Legal, Clorox Ronald Urbach, Partner, Davis+Gilbert LLP • Understanding the impact of Environmental, Social, and Governance (ESG) frameworks on advertising claims • Defining sustainability claims and understanding the requirements of FTC’s Green Guides • Promoting environmental claims without pushing too far and “greenwashing” » Ensuring credibility of claims for consumers and stakeholders • Identifying when your green claim is not on its way to becoming green and determining tactics to rectify these claims

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Andra Dallas, Senior Counsel, Advertising & Marketing, PayPal John Graubert, Senior Counsel, Covington LLP Claim substantiation is becoming a more sophisticated exercise due to the evolving nature and modalities of advertising. As a result, many companies may not be meeting substantiation standards for this new era of advertising. In this interactive table-top exercise, attendees will have a chance to share insights on lack of substantiation or faulty substantiation with fellow attendees.

We will review various ads distributed at our tables to identify potentially unsupported claims and make recommendations on how this can be corrected. Our speakers will then engage each table in a discussion of their findings.

• • • •

Examining new subtleties in inferred and implied claims Detecting single vs. multiple claims Evaluating the proper mode of substantiation relative to the claim being made Constructing a power checklist to help manage risk of litigation for unsubstantiated claims

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12:30

Networking Luncheon

3:30

Focus on Ad Claims in the Metaverse

Don’t be Dark and Twisty: Identifying and Preventing Dark Patterns in Claims Substantiation microphone-alt Nancy Felsten, Partner, Davis Wright Tremaine LLP

1:30

Jennifer Malloy, Of Counsel, Venable LLP

The Metaverse: What Every Advertising Attorney Needs to Know About Substantiating Claims in the New Virtual Marketplace microphone-alt Eric Ball, Partner, Fenwick Anna Naydonov, Partner, White & Case LLP Diana Stern, General Counsel, Palm NFT Studio The metaverse, a universal virtual world, is a huge development for the brand-consumer interface including the way that brands in nearly every industry advertise. The metaverse offers consumers digital product experiences with no physical product exchanging hands. However, this brave new virtual world may present a whole universe of legal challenges for advertisers and marketers especially in the sphere of claims substantiation.

• Understanding the framework of the metaverse and its legal implications for advertising and marketing • Measuring what sufficient substantiation is for ad claims made in the Metaverse • Exploring IP challenges with the metaverse and how this affects claims • Diagnosing ownership rights and endorsement challenges and how this may affect claims in the metaverse • Examining the use of advertising claims in Metaverse gaming platforms • Understanding “real” world versus “virtual” world regulations • Assessing how key agencies and consumer groups will view Metaverse claims 2:30

NFTs As a Form of Advertising: A Study on New Claims Substantiation Risk in the Virtual World microphone-alt Jessica Jonas, Associate General Counsel, Gemini Hannah Taylor, Partner, Frankfurt Kurnit Klein & Selz PC • • • •

Debora Welch, Assistant General Counsel, NA Beauty Professional, Henkel Corporation • Defining dark patterns, what they entail, and how they impact claims substantiation • Examining the fine line between good marketing versus unlawful marketing relative to dark patterns • Exploring the FTC’s stance on dark patterns and formulating an understanding of why there are strict prohibitions for dark patterns • Understanding the nexus between dark patterns and consumer manipulation » Knowing where to draw the line » At the broadest level, are advertisements a form of consumer manipulation?

• Restoring your product’s reputation after it falls prey to a dark pattern 4:30

Examining Claims Substantiation Requirements for Streaming Platforms microphone-alt James Stewart, Senior Associate, DLA Piper Many previously ad-free streaming services are now embracing the use of ads their platforms.

As such they must now abide by ad substantiation guidelines. This session will explore claim substantiation challenges unique to ads on streaming services.

• Understanding how marketing schemes are set up across streaming services and how this may affect claims substantiation • Comparing substantiation requirements for streaming services to those of other forms of broadcasting • Reviewing the common and not-so common challenges to substantiated claims in broadcast media that may also apply to streaming services 5:30

Closing Remarks – End of Day One

Understanding the new culture of NFTs and their distinct new role in advertising Exploring the substantiation challenges that may arise from NFT use Anticipating potentially unlawful claims that can arise from NFT use Case study analysis

3:15

Afternoon Refreshment Break

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MAIN CONFERENCE DAY TWO - Friday, February 10, 2023 8:00

Continental Networking Breakfast and Registration

8:45

Co-Chairs’ Opening Remarks and Recap of Day One microphone-alt Amy Mudge, Partner and Co-Chair Advertising, Marketing and Digital Media Team, Baker & Hostetler LLP Kimberly Wong, Brands and Data Practice Group Lead, Senior Corporate Counsel, Kellogg Company 9:00

Avoiding Data Privacy and Ethical Violations in Claims Made Through New Digital Technologies microphone-alt David Mallen, Partner, Loeb & Loeb LLP Kimberly Wong, Brands and Data Practice Group Lead, Senior Corporate Counsel, Kellogg Company The use of new digital technologies in advertising raises a whole host of concerns not only in expressed and implied claims, but also in terms of ethics and privacy concerns. This panel will examine how platforms and technologies such as the Metaverse, AI, ML, AR, and VR are being employed in ad campaigns and how to design strategies to combat anticipated privacy challenges and ethical concerns.

• Examining data privacy and ethics concerns through express and implied claims made through new digital technologies, i.e. AI, ML, AR, and VR, and in the Metaverse • Identifying privacy and ethics concerns with the use biometric data and how this affects product claims • Understanding how personalized tools that incorporate artificial intelligence and biometric data (face scanning tools) can lead to unsubstantiated claims • Reviewing state enforcement activity concerning the use of biometrics and how this may impact claims substantiation 10:00

Morning Coffee Break

10:15

Influence, Power, and Perception: Finding Solutions to Evolving Claims Substantiation Challenges When Using Influencers and Endorsers microphone-alt Maura Cardani, North America Associate General Counsel, Wunderman Thompson Limor Robinson Mann, Chief Marketing & Disruptive Innovation Counsel, Global, Colgate-Palmolive Company Gonzalo Mon Partner Kelley Drye & Warren LLP It is now common in nearly every industry for companies to use influencers and endorsers to help promote their products, but this can often lead to the risk of unsubstantiated claims. Our panelists will discuss the different roles of influencers and endorsers and assess the claim substantiation risk with these product promoters.

• Understanding how the increased shift towards influencers and away from endorsers is impacting claims substantiation • Examining how the FTC’s influencer guidance is affecting influencer usage as well as endorser usage • Assessing the risk and assuming the risk – diving into the risks associated with influencers and endorsers • Developing contractual parameters on what influencers and endorsers may say » Is there a difference in what an influencer can say vs what an endorser can say • Employing crisis management techniques when influencers and endorsers go rogue 11:15

A Conversation with CARU – New Initiatives in Children’s Advertising microphone-alt Debra Policarpo, Senior Attorney, Children’s Advertising Review Unit, BBB National Programs Join the Children’s Advertising Review Unit (CARU) and learn the latest unit initiatives to ensure that claims in ads directed towards children are properly substantiated.

12:00

Class Action Outlook for Ad Claims: Lesson Learned and Future Forecasts microphone-alt Jennifer Adams, Partner, Amin Talati Wasserman LLP Christopher Cole, Partner & Chair, Advertising, Marketing and Promotions, Katten Muchin Rosenman LLP Chris Grenz, Principal Corporate Counsel, T-Mobile • Analyzing new trends and decisions in advertising claims class actions and how they will impact future claims practices as well as your bottom line • Country of origin claims: Barilla pasta » Health and wellness: COVID claims » Loyalty programs and sweepstakes/giveaways » Gray areas: CBD product claims • Examining the fallout from AMG v. FTC and assessing its effect on class actions • Understanding the new role of state AGs relative to the plaintiff’s bar and how this is impacting ad claims substantiation class actions • Anticipating the next wave of class action activity for ad claims » Metaverse/NFTs 1:00

Recap and Closing Remarks 1:15

End of Day 2 — Main Conference Adjourns

Post-Conference Workshop - Friday, February 10, 2023 C

Due to the hands-on nature of the workshops, they are available for in-person attendees only.

2:00 pm–5:00 pm (Registration starts at 1:30 pm)

Working Group on Substantiating Advertising Claims for FDA Regulated Consumer Products: OTC Drugs, Food, Dietary Supplements and Cosmetics

microphone-alt Katie Bond, Partner, Latham GPM LLP Megan Olsen, Senior Vice President & General Counsel, Council for Responsible Nutrition Barry Ritz, Vice President and Head, U.S. Regulatory, Scientific & Medical Affairs, Nestle Health Science Generally, products related to consumer health or safety require a relatively high level of substantiation.

This interactive working group will explore the necessary requirements and nuances of claims substantiation for FDA-regulated consumer products, including OTC drugs, dietary supplements, food, and cosmetics. The Working Group leaders will walk you through the complexities of interagency policies and procedures governing what claims you can safely make and those you cannot and will provide you with the key information necessary to make properly substantiated claims.

Points of discussion will include: • Exploring the relationship between the FTC and FDA in this arena

• Analyzing FTC advertising guidelines (deception, substantiation, environmental, endorsements/ testimonials, Made in USA) • Determining the scientific evidence necessary to meet FTC claim substantiation standards • Assessing if a clinical trial or study is necessary in view of recent pronouncements • Understanding how COVID-19 has affected claims substantiation of FDA regulated consumer goods • Taking a closer look at how the FTC and FDA views claims on these products via social media and influencers • Reviewing the latest pronouncements on “organic,” “all-natural” “green,” “clean” and “100% real ingredients” claims • Analyzing the current status of CBD relative to FDA regulated consumer goods—Where do the FDA and FTC stand on the use of this ingredient? Do hemp products hold different regulations from products containing CBD? • Exploring enforcement activity for unsubstantiated claims, including recent warning letter analysis • Examining the recent challenges against claims made for these types of products » NAD challenges » Class actions

Upcoming Events

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April 18–19, 2023 | Chicago, IL

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June 27–28, 2023 | New York, NY

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CO-CHAIRS:

Amy Mudge Partner and Co-Chair Advertising, Marketing and Digital Media Team Baker & Hostetler LLP

Kimberly Wong Brands and Data Practice Group Lead, Senior Corporate Counsel Kellogg Company

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