Now, Web-Birds of a Feather Can Actually Flock Together

Well, it seems like almost yesterday (actually a little more than a month ago), that a subsidiary of Mixx, the popular social voting site, launched TweetMixx, a new service that enables companies, brands, politicians, and celebrities collect and aggregate all the mentions about them on Twitter on a single page. “TweetMixx Channels,” as the service is branded, enables you to create a branded page, tailored to you – from your own Twitter Tweets and RSS Feeds to comments from customers, reviewers, fans or pretty much anything you like. We’ll use “you” generically to mean any label that fits – people, brands, goods, services, you name it.

Ever see those vanity license plates on cars? Now you can have your own vanity Twitter Mixx channel, and the service uses “Tabs” to allow a variety of features and functions. There’s one that uses search terms to find links and tweets about you on Twitter, in apparent deference to the new Federal Trade Commission Endorsement Guides (see our post FTC (Revised) Endorsement Guides Go Into Effect earlier today; there’s an “Insiders” tab that identifies anyone with a material connection or that is associated with you (e.g., employees, agents, paid endorsers); and other tabs that enable you to customize and populate the channel. In addition, since the service appears to act both as an aggregation and a search tool for content about you, consumers can find all the Twitter traffic and channel information about you in one place, and at the same time, you can use the service to track and monitor conversations and references to you on Twitter. Right for consumers; right for you – clever.

Remember Facebook’s personalized URLs just a few months ago (Legal Bytes blog post Facebook Adds Personalization & a (Brand) New Dimension)? This is not simply another social media fad. Already companies are getting on the bandwagon (or should we say birdwagon). Today, the National Hockey League ( will be among the first few enterprises launching its TweetMixx Channel – its own private label branded distribution platform using the TweetMixx service. TweetMixx even provides you with a widget that can be embedded on other websites (think bloggers, profile pages, etc.). The NHL’s “Chatter” tab on TweetMixx, for example, will provide streaming tweets from hockey fans, while a “Links” tab will keep track of the tweets that are retweeted most often, and will rank these favorites by putting them at the top of the TweetMixx Channel web page.

So for advertisers, brand managers, marketing professionals and agencies, this new tool is the beginning of enabling a clearer strategic use of Tweets. Just as branded pages and channels, enabling two-way conversations, have emerged on YouTube and Facebook, allowing brands and celebrities to engage with consumers and fans, TweetMixx seeks to provide an ecosystem for Twitter traffic. Chris McGill, founder and CEO of Mixx, noted that each TweetMixx Channel can be analogized to a “tree.” You have TweetMixx plant a customized tree of your choice, then you are given the tools to nurture it, to prune it and to watch it grow. Do it right and you have branches where Twitter users can “flock, sit and sing” about you – the people, products, services and things they care about. TweetMixx owns the forest!

Can you or your brand afford to stay out of the social media arena? Are you afraid of the new risk-reward paradigm and uncertain what to do? Do you know you have to do something, but are suffering from analysis paralysis? Have traditional models got you stuck in the mire? Call us. Our Advertising Technology & Media law practice group and our newly formed Social Media Task Force already have unparalleled depth, experience and bench-strength in understanding, working with, and advising clients in this brave new world. From developing policies to monitoring compliance; from protecting and enforcing your rights to developing relationships and partnerships with others to engage in the conversation. To win it, you have to be in it. If you need help, contact me, Joseph I. (“Joe”) Rosenbaum, or the Rimon attorney with whom you regularly work. We are happy to help.

FTC (Revised) Endorsement Guides Go Into Effect

This post was written by John Feldman.

Yesterday, Dec. 1, 2009, the revised “Guides Concerning the Use of Endorsements and Testimonials in Advertising” released by the Federal Trade Commission came into effect. If you are a loyal Legal Bytes’ reader, you know we have been following this as early as November 2008, when we posted Endorsements & Testimonials – FTC Broom Proposes Some Sweeping Changes. Numerous updates and informational pieces have graced these pages since then (now when we say “pages,” we mean web pages), and you can refer back to any or all of them, or you can check out any you may have missed right here: FTC Testimonial and Endorsement Guides Stimulate Industry Comment (March 2009); a presentation given at the University of Limerick on the subject entitled “Trust Me, I’m a Satisfied Customer: Testimonials & Endorsements in the United States,” which you can download (If You Didn’t Make It to Ireland …); Ghostwriters: Medical Research or Paid Endorsers (and are they mutually exclusive?) and Rights of Publicity – Wake Up and Smell the Coffee! (both in August 2009); and FTC Releases Updated Endorsement & Testimonial Guidelines and Rimon Analysis of the New FTC Endorsement and Testimonial Guidelines (both in October 2009).

Yesterday, John P. Feldman, an authority in these types of advertising regulations and compliance and who is based in Washington, D.C., put together some thoughts concerning the implications of these Guides upon coming into effect, continuing his thoughtful and practical analysis. While we will maintain bringing you news and information about the Guides, John’s analysis is timely and helpful, and outlines some considerations every advertiser – online, in social media and off-line – and every blogger, viral marketer, celebrity endorser or consumer making a testimonial, should take into account. John’s analysis, which you can download and read in its entirety by selecting the link below, asks and answers the following questions about these Guides:

  • What does this mean for advertisers?
  • What is the most dramatic shift in enforcement policy?
  • What will this mean for advertisers that use celebrity endorsers?
  • How much control should sponsoring advertisers exercise over endorsers in new media channels?
  • What impact will the FTC’s new approach to clinical trials have on the OTC, cosmetic, and pharmaceutical industry?
  • Is there a role for self-regulation and what do you make of the proposed “best practices” recently announced by the Word of Mouth Marketing Association (WOMMA)?

You can download your own copy of John’s analysis or you can read it online right here: “FTC Endorsement Guides (Revised) – Some Thoughts As They Become Effective“. You won’t be disappointed. In addition, if you want to know more about these issues or have questions about your particular circumstances, please do contact John P. Feldman directly, or you can call Joseph I. Rosenbaum or Douglas. J. Wood or, of course, any Rimon attorney with whom you regularly work.

Ghostwriters: Medical Research or Paid Endorsers (and are they mutually exclusive?)

When Merck was busy battling lawsuits emanating from the pain medication Vioxx, the Wall Street Journal, among other news organizations that were reporting on the proceedings, also reported on the practice of “ghostwriting,” alleging that five out of the six authors of a study published in the Journal of the American Medical Association were paid consultants to Vioxx lawyers! An editorial accompanying the studies in JAMA opined that manipulation of publications in the promotion of drugs by paid ghostwriters might not be such an uncommon occurrence. The Washington Post even went so far as to report that the JAMA studies essentially “accuse” the drug manufacturer of “scientific fraud.”

Merck responded to the Wall Street Journal article expressing disappointment at reports that trial lawyers might have made payments to authors whose work found their way into medical journals. While a majority, if not all, of the Vioxx cases have been settled, inquiries into the practice of ghostwriting—payments by pharmaceutical manufacturers for articles frequently extolling the virtues of one drug or another and appearing in medical journals—seems to be a continuing, and problematic, means of promoting pharmaceuticals.

As they say, timing is often everything. A few weeks ago, I had prepared a presentation for an international gathering of lawyers at Limerick University in Ireland, describing the use of testimonials and endorsements in advertising. You can read my previous post and obtain a .PDF copy of the presentation. In briefing the assembled professionals—mainly from the United States and Europe—my presentation and their interest focused heavily on the Federal Trade Commission’s proposed updates and revisions to its Guides that were last revised in 1980.

One of the items clearly on the FTC’s agenda is DISCLOSURE—specifically, disclosure of material connections between those who promote and endorse products and services, and the advertisers and companies that create, manufacture, distribute and sell these products and services. Indeed, the FTC is considering extending liability to endorsers themselves who promote goods and services, if the claims being made are found to be false, deceptive, or misleading, or if they represent unfair competition. While much of the discussion surrounding these revisions has focused heavily on new social media and digital distribution—buzz, viral and word-of-mouth marketing, social networks, bloggers, vloggers, sploggers and virtual worlds—and both traditional and revised Guides (as well as specific advertising guidelines for regulated pharmaceuticals), all focus on the potential for misleading consumers as to the credibility of the speaker or writer, where a material connection to the sponsor is not clearly disclosed. Whether a physician who reads an article that is authored by a paid ghostwriter and that appears in a medical journal, would be considered a “consumer” under these circumstances; or whether an independently peer-reviewed article would be considered advertising or promotional activity, are separate questions. But clearly these are topics that have created “buzz.”

Well, here we go again. Just recently, the reported that Wyeth paid ghostwriters for articles published in medical journals—in this case promoting certain replacement hormone therapy in menopausal women. You can read the full article here. While proponents (or should we say “defenders”) of payments made to authors assert that if the medical professional is qualified; if the content is subject to rigorous peer-review by independent experts; and if the authors retain complete editorial control over the content and the views that are expressed; it should not be a problem and should be considered perfectly fine.

Assuming, as both the pharmaceutical companies and the individual authors assert, that the content of these articles is scientifically accurate, many questions arise. For example, is disclosure even necessary under these circumstances? Could failure to disclose these payments be construed as deceptive or misleading—always, or only under specific circumstances, and if so, what circumstances? What criteria will be used to determine if a payment is “material,” and if disclosing (or not disclosing) that fact that would affect the reader’s perception of the credibility or impartiality of the authors? Is this even a “consumer” regulatory issue or does this belong to the FDA or another regulatory body relevant to the medical profession, since this isn’t really “consumer” advertising? These are questions perhaps that that FTC and David C. Vladeck, its new Director of the Bureau of Consumer Protection, may well decide to focus upon.

FTC Testimonial and Endorsement Guides Stimulate Industry Comment

Rimon acts as counsel to many of the advertising industry’s leading trade and membership associations – The Association of National Advertisers, The Word of Mouth Marketing Association, the Interactive Advertising Bureau, to name only a few. As you may have notices, a recent Legal Bytes blog post noted that just last month the FTC supplemented its December 2007 “Self-Regulatory Principles for Online Behavioral Advertising” report.

Well the FTC has been busy in re-examining it’s policies regarding testimonials and endorsements in this digital age. As previously reported in Legal Bytes, the FTC indicated it was revising it’s Testimonial and Endorsement Guides (the first time since the 1980s). Well comments have now been submitted and we strongly recommend that anyone in the advertising and marketing business take a look at some of them. In fact, to help you, Legal Bytes has a couple you can look at right now – Comments for The Association of National Advertisers and Comments for The Word of Mouth Marketing Association – and when you finish reading them ask yourself:

  • Now that public comments are in, what do we think will happen?
  • What is in front of the FTC that might affect its decision making?
  • How would self-regulation differ from the way the FTC has been operating?
  • What does the new FTC Chairman think about self-regulation?
  • Do we expect the new administration to shift direction? If so, which way?
  • How is all this likely to affect advertising and marketing using product placements, branded entertainment, blogs, consumer generated content, buzz, viral and word of mouth marketing?

If you need to know, you need to contact John Feldman, Douglas Wood or Joseph Rosenbaum – or your favorite Rimon attorney – who will be more than happy to help you.