Advertising law is a broad, fast-evolving area of law that involves vetting claims about products and managing business practices to avoid misleading, deceiving, or defrauding consumers. Product promotions and the media used to convey advertising messages evolve rapidly. For instance, mobile, affiliate, and social media marketing — all of which scarcely existed a few years ago — are now among the most prominent advertising channels. At the same time, the traditional model of an advertiser working with an ad agency has evolved into an industry with a multitude of intermediaries including payment processors, affiliate marketers, endorsers, producers, and product developers, all of whom may play a role in advertising decisions that can create legal exposure.
Companies and individuals involved in the advertising and promotion of products require counsel who keep pace with new developments in the ways advertisers interact with consumers and how those efforts are regulated. Counsel must also understand the risks and potential liability associated with the different types of companies involved in advertising and promotional efforts. Together, these skills give advertising attorneys the ability to tailor advice to their client, no matter what type of advertising or promotion-related activity the client provides.
Advertising law also involves recognizing the important balance between maximizing product sales and minimizing legal risk. Legal advice on advertising claims and promotional strategies should be practical and allow clients to make informed business and legal decisions. Creativity also is an important aspect of counseling in this area because advertising attorneys must be able to recognize the many interpretations consumers may infer from advertising claims or business practices and develop innovative solutions to remedy any potential problems those inferences may cause.
Finally, advertising law issues can involve either litigation or enforcement by government regulators. In fact, one can often lead to the other. Advertising attorneys must understand how to manage, and when possible avoid, contesting the same issue on multiple legal fronts. Counsel also should be sensitive to the fact that there are often important strategic differences when dealing with opposing counsel versus a regulatory agency that may play the role of both prosecutor and judge or jury.
Jeffrey D. Knowles, Partner
Randal M. Shaheen, Partner