ACI's 8th Annual Legal, Regulatory and Compliance Forum on Advertising Claims Substantiation - WEB by C5Group

ACI’s 8th Annual Legal, Regulatory and Compliance Forum on

Advertising Claims Substantiation

February 6 – 7, 2025 • New York Bar Association, New York, NY

Senior Corporate Counsel, Marketing Amazon

DISTINGUISHED CO-CHAIRS

In-House Insights from:

• Brother USA

• Capital One

• Colgate-Palmolive

• Danone

• Google

• Henkel

• Marriott International

• Paypal

• Reckitt

• SC Johnson

• Sony Interactive Entertainment

• SuperAwesome

• Unilever

• Verizon

• Whole Foods Market

Ralph

Partner and Chair, Advertising, Marketing & Digital Media Practice Group Baker & Hostetler LLP

of Legal, Marketing and Communications The Clorox Company

2025 Conference Highlights:

CHEVRON-RIGHT Ensuring Proper Claims Substantiation When Leveraging AI in Your Ad Campaigns

CHEVRON-RIGHT Avoiding Unsubstantiated Claims While Managing Consumer Reviews, Endorsements and Influencers

CHEVRON-RIGHT Steering clear of E-Commerce Landmines Involving Junk Fees, Negative Options, and Dark Patterns

CHEVRON-RIGHT Overcoming Challenges in Substantiating ESG and Corporate Sustainability Claims

CHEVRON-RIGHT Lessons Learned from Marketing Misfires and Ad Campaigns Gone Wrong

CHEVRON-RIGHT Compliance Essentials for Promotions, Sweepstakes, and Gamification

CHEVRON-RIGHT Mastering the Numbers: Interpreting Statistics for Ad Claims Substantiation

Allison MacDonald

Amy

Mudge

La Toya Sutton Director

Master the Complexities of Substantiating Your Advertising Claims in Today’s Fast-Paced, Digital-First Marketplace.

With evolving consumer expectations, increased regulatory scrutiny, and the growing influence of social media and digital advertising – substantiating advertising claims has become more complex than ever.

Attend ACI’s 8th Annual Advertising Claims Substantiation Conference and learn how to substantiate your claims effectively to avoid legal pitfalls, protect your brand’s reputation, and build consumer trust. Stay ahead of evolving regulations and ensure your marketing strategies are both persuasive and compliant.

Gain Valuable Insights On:

Play-circle Navigating the FTC’s Final Rules on Testimonials and Consumer Reviews

Play-circle Using GenAI, Virtual Influencers and Other AI-Enabled Tools in Your Ad Campaigns

Play-circle Traversing The FTC’s Latest Rules on Junk Fees and Subscription Offerings

Play-circle Bridging the Gap Between Legal and Marketing Teams When Launching a New Product

Play-circle Backing Your Health & Wellness Claims with Competent and Reliable Scientific Evidence

Play-circle Claims Substantiation Lessons Learned from Recent Class Action Trends

REGISTRATION IS NOW OPEN.

We look forward to seeing you in New York City this February.

Continuing Legal Education Credits

Benefit from One or Both of Our Comprehensive Workshops

APRE-CONFERENCE WORKSHOP

February 5, 2025 • 1:30 – 5:00

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

BPOST-CONFERENCE WORKSHOP

February 7, 2025 • 2:00 – 5:00 A Comprehensive Guide to Competitor Advertising Challenges: Exploring Your Options, Developing Strategies, and Navigating the Courts, FTC, and NAD Proceedings

Distinguished Faculty

CO-CHAIRS

Allison MacDonald

Senior Corporate Counsel, Marketing Amazon

Amy Ralph Mudge Partner and Chair, Advertising, Marketing & Digital Media Practice Group Baker & Hostetler LLP

La Toya Sutton Director of Legal, Marketing and Communications The Clorox Company

SPEAKERS

Penelope Barnett

VP, Chief Marketing Counsel NA Colgate-Palmolive

Barry Benjamin Partner

Kilpatrick, Townsend & Stockton

Katie Bond Partner Keller & Heckman LLP

Valerie Boccadoro Counsel, Marketing and Advertising Verizon

Jacqueline Chan

Assistant General Counsel, Regulatory & Marketing Unilever

Christopher Cole Partner

Chair, Advertising, Marketing and Promotions Practice

Katten Muchin Rosenman LLP

Andra Dallas

Senior Counsel, Head of Legal Marketing PayPal

Brad Eshgh

Senior Manager, Brand Marketing Reckitt Benckiser

Margaret Esquenet

VP & Senior Counsel—Brand, Marketing, and Consumer Experience

Marriott International

John Feldman Partner

Reed Smith

Nancy Felsten Partner

Davis Wright Tremaine

William Frazier

Attorney, National Advertising Division (NAD)

BBB National Programs

Katie Goldstein

Global Head of Policy and Regulatory Affairs SuperAwesome

Sally Guido

Director, Assistant General Counsel, Consumer Regulatory

Capital One

Seth Hopson Assistant General Counsel Henkel

Jason Howell Partner, Chair of Advertising, Marketing & Promotions Group Perkins Coie

Robert Jones Global Counsel SC Johnson Lifestyle Brands

Kawana King Senior Counsel Google

Mark Brian Levine Associate General Counsel Reckitt

Andrew Lustigman

Partner, Advertising Marketing and Promotions Group Chair Olshan Frome Wolosky

David Mallen

Co-Chair, Advertising Disputes Loeb & Loeb

Holly Melton Partner Crowell & Moring LLP

Amanda Morton Advertising Compliance Director Brother USA

Michael Ostheimer Attorney, Division of Advertising Practices Federal Trade Commission

Urmi Patel

Senior Principal Legal Counsel Whole Foods Market

Barry Ritz

Vice President and Head of Regulatory and Scientific Affairs Nestlé Health Science

Tom Rosholt Owner/Principal

Tom Rosholt Consulting, Inc.

Candace Sady

General Counsel, Personal Care Kinberly-Clarkt

Jennifer Santos Attorney

National Advertising Division (NAD)

Michael Sochynsky Marketing & Sales Counsel Danone

Bezalel Stern Partner

Manatt, Phelps & Phillips, LLP

Hannah Taylor Partner, Co-Chair, Advertising and Emerging Technology Groups

Frankfurt Kurnit Klein & Selz

Ivan Wasserman Partner

Amin Wasserman Gurnani LLP

Pre-Conference Workshop A

February 5, 2025 • 1:30 – 5:00

The quality of the speakers was really terrific.

– Partner, ArentFox Schiff LLP

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

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

» Reasonable basis

» Competent and Reliable

• How much substantiation is needed?

» Tests Prove

» Studies Show

• Differentiating between different types of claims

» Express vs. implied

» Highest possible standard

Amanda Morton

Advertising Compliance Director

Brother USA

Michael Sochynsky

Marketing & Sales Counsel

Danone

Holly Melton Partner

Crowell & Moring LLP

» Doctors Recommend

» Health and safety claims

• 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

• Understanding the different levels of substantiation required for FDA-regulated products vs. non-FDA regulated products

• 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

» State Regulatory Agencies and Attorneys General Offices

» NAD

» CARU

» Network Reviews

• Examining the steps in the creation of an advertising campaign relative to claims substantiation

» Advertiser Litigation

» Class Actions

• 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

Main Conference Day 1

February 6, 2025

8:30

Allison MacDonald Senior Corporate Counsel, Marketing Amazon

The event was filled with extremely knowledgeable speakers who presented valuable information.

– Specialist, Regulatory & Scientific Affairs, Nestle Health Science U.S.

Amy Ralph Mudge Partner and Chair, Advertising, Marketing & Digital Media Practice Group Baker & Hostetler LLP

Setting the stage for this year’s conference, a panel of cross-industry in-house counsel will address the most challenging advertising and claims substantiation developments of the last year, as well as predictions for the year ahead. Points of discussion will include:

• An analysis of key recent cases and enforcement actions by the FTC, NAD, state attorneys general, and private litigants that have shaped advertising and claims substantiation practices

• What the Supreme Court’s decision in Loper Bright Enterprises might mean for the future of FTC rulemaking

• New and upcoming regulatory guidelines expected to influence claims substantiation in the next year

La Toya Sutton Director of Legal, Marketing and Communications The Clorox Company

NAD. Gain critical insights into the latest priorities, initiatives and investigations being undertaken by these agencies to advance the truth and accuracy in advertising.

10:30 Morning Coffee Break

Seth Hopson

Assistant General Counsel Henkel

Sally Guido Director, Assistant General Counsel, Consumer Regulatory Capital One

Allison MacDonald

Senior Corporate Counsel, Marketing Amazon

Candace Sady

General Counsel, Personal Care Kinberly-Clarkt

Michael Ostheimer Attorney, Division of Advertising Practices Federal Trade Commission

Jennifer Santos Attorney National Advertising Division (NAD)

MODERATOR:

Amy Ralph Mudge Partner and Chair, Advertising, Marketing & Digital Media Practice Group

Baker & Hostetler LLP

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Don’t miss the opportunity to maximize participation or showcase your organization’s services and talent. For more information please contact us at: SponsorInfo@AmericanConference.com hands-helping

11:00

and the Future of Advertising – PART 1

Successfully Integrating AI Into Your Ad Campaigns While Adhering to Evolving Regulatory Standards

As AI is revolutionizing the advertising industry, it is also bringing new challenges around ad claims accuracy, substantiation, and regulatory compliance. This panel will explore how brands can harness the potential of AI and ensure claims are transparent, truthful, and substantiated to avoid scrutiny. Join leading advertising counsel as they discuss:

• The latest trends in regulatory enforcement related to AI-generated claims, and what brands need to know to stay compliant

• The specific AI products, platforms and practices that the FTC is closely watching and how to leverage them while avoiding scrutiny

• How to sufficiently document the creative process used to create ads when using AI, and ensuring AI-generated claims are backed by reliable data and clear evidence

• The dangers of “hallucinations” or misinformation in ads created in whole or in part by AI

• Ethical considerations of AI in advertising, including misleading personalization and bias

• Some of the most notable AI campaigns of the past year and key takeaways for maintaining compliance with evolving standards

Kawana King

Senior Counsel

Google

Katie Goldstein

Global Head of Policy and Regulatory Affairs

SuperAwesome

Hannah Taylor Partner, Co-Chair, Advertising and Emerging Technology Groups

Frankfurt Kurnit Klein & Selz

Final Rule and Emerging Areas of Risk for Enforcement and Penalties

In an era where consumer reviews, endorsements, and testimonials heavily influence purchasing decisions and brand reputation, companies face increasing pressure to ensure transparency and compliance with ever-evolving regulations. With recent new rules from the FTC reshaping how businesses can utilize influencer partnerships, customer feedback, and testimonials in their marketing strategies, this panel will dive into:

• How businesses can effectively avoid misleading or unsubstantiated advertising claims while managing endorsements and influencer partnerships

• Developing contractual parameters on what influencers and endorsers may say

• Implementing safeguards against influencer campaign liabilities, including rogue influencers who might tout unsubstantiated claims

• Evaluating the protections offered by various types of disclosures for endorsements made across different platforms and mediums (social media, websites, TikTok, podcasts, etc.)

• An overview of new state-specific laws governing child influencers and influencer compensation

• Examining specific consumer review practices that the FTC is now targeting for enforcement activity and penalties under the new final rules

• Understanding the different requirements and best practices relative to: incentivized reviews, insider reviews, hijacked reviews, reviews on other third-party websites, reposted or repurposed reviews, review platforms and algorithms, etc.

• Avoiding FTC penalties: Real-world examples of how companies have navigated the gray areas of the new rules to ensure compliance

Penelope Barnett

VP, Chief Marketing Counsel NA Colgate-Palmolive

Andrew Lustigman

Partner, Advertising Marketing and Promotions Group Chair

Olshan Frome Wolosky

2:00 Junk Fees, Negative Options, and Even Darker Patterns: Avoiding the Latest E-Commerce Advertising Landmines

As e-commerce continues to grow, tactics like junk fees, negative option marketing, and dark patterns are drawing increased scrutiny from regulators, enforcers and consumer advocates alike. With the FTC and other regulatory bodies cracking down on these practices, navigating the blurred lines between persuasive design and deceptive marketing is more important than ever. This panel will explore:

• The FTC’s new Negative Options Rule and their latest rules on junk fees

• How to determine when your website design and advertising practices cross into the deceptive territory, and the specific tactics that are triggering enforcement activity

• How regulators are addressing junk fees, hidden costs and sneaky add-ons and what companies must do to ensure fee transparency

• Developing a compliance plan for subscription models and automatic renewals to stay on the right side of the latest enforcement trends

• Strategies for avoiding dark patterns and implementing consumer-friendly, transparent advertising and marketing techniques

Margaret Esquenet

VP & Senior Counsel—Brand, Marketing, and Consumer Experience

Marriott International

Jason Howell Partner, Chair of Advertising, Marketing & Promotions Group

Perkins Coie

2:45

Mastering the Numbers: How Marketing Lawyers Can Effectively Read, Understand, and Translate Statistics for Advertising Claims Substantiation

In today’s data-driven advertising landscape, in-house marketing lawyers must be equipped with the tools to confidently interpret and evaluate statistical evidence used to back advertising claims. In this session, legal practitioners and statistical experts will discuss:

• The fundamentals of reading and understanding study results

• Common statistical pitfalls to avoid in the substantiation process

• How to translate complex data into clear, defensible language for regulatory review

• How to align legal strategies with the scientific accuracy needed to substantiate claims and avoid regulatory scrutiny

3:15 Afternoon Break

Andra

Dallas Senior Counsel, Head of Legal Marketing PayPal

Tom Rosholt Owner/Principal

Tom Rosholt Consulting, Inc.

3:30 Health and Wellness Advertising Under Attack: Backing Your Claims with Competent and Reliable Scientific Evidence to Withstand Heightened Scrutiny

As the post-pandemic health and wellness market continues to boom, consumers increasingly rely on scientific claims to make informed decisions. But with heightened scrutiny from regulators, brands must ensure that their advertising claims are not only persuasive but also scientifically substantiated. Failure to back claims with credible evidence can lead to regulatory penalties, reputational damage, and consumer mistrust. This panel will explore:

• The heightened legal and ethical responsibilities associated with substantiating health and wellness claims

• The latest standards and guidelines from the FTC, FDA, and other authorities on making wellness claims

• Building a robust substantiation strategy: gathering and presenting sufficient scientific evidence that withstands scrutiny

• Common pitfalls and risk areas: avoiding misleading or unverified claims that could trigger enforcement actions

• Lessons from companies that have successfully (and unsuccessfully) navigated scientific validation of health/wellness claims in their advertising

4:15

Katie Bond Partner

Keller & Heckman LLP

Barry Ritz

Vice President and Head of Regulatory and Scientific Affairs

Nestlé Health Science

Ivan Wasserman Partner Amin Wasserman Gurnani LLP

Lessons Learned from Marketing Misfires: Key Takeaways from the Frontlines of Ad Campaigns Gone Wrong and Critical Claim Substantiation Missteps

Through a series of first-hand accounts, this panel will share real-world examples of marketing campaigns that went sideways, including critical lessons learned from claim substantiation failures. Benefit from hearing about common (and not so common) pitfalls in advertising endeavors, unforeseen challenges, regulatory missteps, and the consequences of insufficient evidence backing product claims. Attendees will gain valuable insights into how to avoid these errors and develop robust, compliant marketing strategies that protect both their brand and bottom line.

5:00 Conference Adjourns

Barry Benjamin Partner

Kilpatrick, Townsend & Stockton

La Toya Sutton Director of Legal, Marketing and Communications

The Clorox Company

Main Conference Day 2

February 7, 2025

8:30 Co-Chairs’ Welcome Back

The actual content presented at the conference was relevant, helpful and insightful to those in advertising law.

– Advertising Compliance Manager, Brother International Corporation

8:45 Insulating Yourself from Plaintiff Bar Attacks: Incorporating Lessons from Recent Advertising Claims Class Actions Into Your Future Claims Substantiation Strategies

• Reviewing key class action rulings on advertising claims substantiation from 2024: what are the most significant trends and takeaways?

• Identifying recent trends in claim disputes and spotlighting the types of claims businesses should avoid to minimize future litigation risks

• Evaluating the financial impact of misleading claims – how are these decisions affecting a company’s profitability?

Christopher Cole

Partner, Chair, Advertising, Marketing and Promotions Practice

Katten Muchin Rosenman LLP

Mark Brian Levine Associate General Counsel Reckitt

9:30 An Interactive Mock-Product Launch Exercise: Understanding How to Support Your Business While Also Being a Good Lawyer

Legal and marketing teams oftentimes engage in a battle of the wills during a new product launch. What can and cannot be claimed becomes a compliance tug of war.

In this interactive session, our panelists will engage in a product launch role-playing exercise which will demonstrate how to bridge the gap between legal and marketing teams. You will learn how to effectively support your marketing team’s creative vision while ensuring compliance with all legal and regulatory standards. Attendees will walk away with an understanding of how to balance business goals with sound legal counsel, and the tools to be both a proactive business partner and a diligent lawyer.

10:15 Morning Coffee Break

10:45

Critical Compliance Pitfalls with ESG and Corporate Sustainability Claims

As ESG initiatives take center stage, companies are increasingly promoting their sustainability efforts through advertising. From green claims to responsible sourcing and ethical hiring practices, businesses must ensure their messaging is compliant with evolving regulatory standards, as misleading, exaggerated or unsubstantiated claims can lead to regulatory actions, reputational damage, and consumer distrust. This panel will explore:

• What it really means to be “green” in 2025: meeting the latest compliance requirements for environmental claims

• What exactly you need to show to back up claims of climate reduction, sustainability, carbon neutrality, and beyond

• How to substantiate ESG claims with credible evidence and transparent reporting to withstand regulatory scrutiny

• An examination of the latest enforcement actions based on misleading claims that products are “responsibly sourced”

• How to ensure your ethical hiring claims are sufficiently backed up when the regulators come knocking

• Insights into upcoming changes in ESG-related compliance and how to future-proof your sustainability claims

• Exploring successful ESG campaigns and cautionary tales of companies that have faced challenges due to poorly substantiated or exaggerated corporate sustainability claims

Valerie Boccadoro Counsel, Marketing and Advertising Verizon

Brad Eshgh Senior Manager, Brand Marketing Reckitt Benckiser

Nancy Felsten Partner

Davis Wright Tremaine

Robert Jones

Global Counsel

SC Johnson Lifestyle Brands

11:45 AI and the Future of Advertising – PART 2

Virtual Faces, Real Legal Risks: Managing the Unique Challenges of Using AI-Generated Influencers in Advertising

This panel will explore the emerging risks associated with using digital personas in marketing campaigns, including intellectual property concerns, consumer protection laws, disclosure requirements, and potential liability for misleading or deceptive practices. Attendees will walk away with an understanding of how brands can responsibly leverage virtual influencers while staying compliant with regulatory standards and minimizing legal exposure.

Jacqueline Chan Assistant General Counsel, Regulatory & Marketing Unilever

Bezalel Stern Partner

Manatt, Phelps & Phillips, LLP

12:15 Ensuring Fair Play: Advertising Compliance Essentials for Promotions, Sweepstakes, and Gamification

Promotions, sweepstakes, and gamification are powerful tools for driving consumer engagement, but they come with a complex set of legal requirements. This panel will explore the key compliance challenges marketers face when launching these types of campaigns, including transparency, fairness, and adherence to regulatory standards.

Key points of discussion will include:

• Navigating FTC regulations, state laws, and international rules governing sweepstakes, prize promotions and gamified marketing campaigns

• Best practices for avoiding deceptive advertising and ensuring transparency in promotions and contests

• Understanding the line between promotional sweepstakes and lottery/gambling

• Navigating data privacy and consumer protection laws within interactive and gamified marketing experiences

• Best practices for structuring compliant gamification elements that encourage consumer participation

Senior Principal Legal Counsel Whole Foods Market

John Feldman Partner Reed Smith

• Exploring successful case studies of compliant promotions, sweepstakes and gamified campaigns, and lessons from campaigns that faced legal challenges

1:00 Conference Concludes

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Urmi Patel

Post-Conference Workshop B

February 7, 2025 • 2:00-5:00

Excellent topics, knowledgeable presenters.

– Regulatory Affairs Manager, OLLY PBC

A Comprehensive Guide to Competitor Advertising Challenges: Exploring Your Options, Developing Strategies, and Navigating the Courts, FTC, and NAD Proceedings

In today’s competitive market, challenging a rival’s advertising claims can be an effective way to protect your brand and ensure fair competition. However, success in these disputes requires a deep understanding of the legal framework and a strategic approach. This comprehensive workshop will explore the key steps to take when challenging your competitors’ advertising claims, including the intricacies of navigating FTC and NAD proceedings. Our panel will provide practical insights on:

• Making the decision of whether to challenge a competitors claim, and when to do it

• Formulating a clear and effective strategy for challenging a competitor’s claim, including setting objectives and assessing the potential impact on your brand

• Understanding the types of evidence and scientific support needed to substantiate your challenge and win in court or before regulatory bodies

• Navigating the regulatory and self-regulatory processes: understanding what steps need to be taken with the FTC, NAD and other agencies to initiate and resolve an advertising dispute and how to effectively utilize their platforms

• A step-by-step guide for how to leverage NAD processes to address misleading claims

» Developing a working knowledge of how the NAD functions and its review systems

» Assembling a checklist on the essentials and protocols of appearing before the NAD

» Identifying common red flags for NAD relative to unsubstantiated claims

» Navigating your way through an NAD proceedings

» Establishing best practices that can help you work with the NAD to find common ground in clarifying a claim

William

Attorney, National Advertising Division (NAD) BBB National Programs

• Managing the dispute process: best practices for engaging with competitors, regulatory agencies, and legal counsel throughout the dispute resolution process to achieve favorable outcomes

• Employing strategies to minimize risk of counterclaims or retaliation from competitors during or after a challenge