Manatt, Phelps & Phillips’ Goldstein on Direct Marketing and the Law
When it comes to the law, one oft-used axiom seems especially fitting: An ounce of prevention is worth a pound of cure. Just ask any company that has been on the wrong side of an FTC investigation, injunction, lawsuit or the like. The list is long, so one won’t be hard to find.
Prevention, in this case, is linked to a thorough understanding of the legal issues impacting the direct response industry and a commitment to enacting the best legal practices in your mail programs. To help you in that endeavor, I reached out to attorney Linda Goldstein, partner at Manatt, Phelps & Phillips and chair of the firm’s Advertising, Marketing and Media group. A 20-year veteran of advertising and marketing law, Goldstein now pauses to discuss data security, auto renewals, vouchers, privacy and the sometimes dichotomous relationship between creative goals and legal requirements.
Tracy Gill: What legal issues are having the biggest impact on direct marketers right now?
Linda Goldstein: Obviously, privacy considerations are having a huge impact. Even though there are no federal laws impacting information collected offline, increasing governmental concerns about privacy and data security are very much at the forefront of any direct marketer’s strategies today. Because direct marketers historically have collected and retained enormous amounts of personal and consumer purchase behavior information on their customers, they are struggling with [the question of] how to reconcile their legitimate business needs to retain and use that information [with] increasing pressures [from] the government side to dispose of information as quickly as possible or impose very high [regulations] on [how] this data is stored and maintained. What we are seeing among many direct marketing companies is a fresh look at data collection, retention and storage practices. ….
The second major issue is the intense regulatory focus on … advanced-consent marketing, which could include anything from free trials to automatic renewals to continuity. As a result of the Time Inc. settlement, which was focused primarily on automatic renewal, we have seen many of our clients revisiting their automatic renewal programs to ensure their marketing materials contain all of the appropriate disclosures in a sufficiently prominent fashion.