Mobile technology is evolving rapidly, and marketing and branding strategies are keeping pace. What legal issues does this evolution raise for retailers and merchandising companies in the fashion industry and elsewhere? And how can companies balance privacy- and disclosure-related risks with the need to stay competitive and keep up with – or ahead of – this progress?

Panelists Tom Burke (Deputy General Counsel, Brown Shoe Company) and Nicole Marra (General Counsel, Gucci America, Inc.) addressed issues at the Cardozo Law School’s Semi-Annual Fashion Law Symposium: The Latest in Brand Marketing and Legal Compliance in a panel titled “Mobile Marketing,” moderated by Davis & Gilbert partner Joseph Lewczak.

TCPA

Many companies are exploring use of text message communications, and both panelists noted that recent changes in the Telephone Consumer Protection Act (TCPA) have impacted the nature and scope of these explorations.

As of October 2013, marketers are required to obtain written consent from consumers prior to sending certain types of commercial texts.  The risks involved with text message campaigns can impact not only the bottom line, but an advertiser’s brand image as well.  TCPA claims may carry high costs, but it may be even more difficult for a brand to recover from the public relations issues and mistrust these privacy-related allegations can raise in consumers.

DISCLOSURE

By their nature – and screen size limitations – mobile devices also present particular challenges for advertisers seeking to meet disclosure requirements under federal and state law.  As the Federal Trade Commission’s Dot Com Disclosures note, important disclosures and qualifications cannot be buried in footnotes.  In small mobile spaces, counsel may try to assist creative teams in crafting short and clear disclosures that are consistent with the brand message conveyed by the advertising as a whole.

ON-PREMISES LOCATION TRACKING

Emerging interest in use of geolocation and tracking data in mobile marketing strategies implicates both privacy and disclosure laws and policies.  Industry- promulgated guidelines (including those of CTIA-The Wireless Association) indicate that advertisers should provide proper notice and obtain consent – e.g., using an on-screen pop-up – prior to accessing a consumer’s location; further, collectors should limit location data scraping, and should not transfer such data to others.  In this sphere, as in many other areas where applicability of pre-existing law to new technologies is still developing, advertisers are treading carefully, assessing options and risks, and watching what others are doing.

THE BOTTOM LINE

While mobile technologies continue to change, creative counsel should work with business teams to assess the application of “traditional media” laws to new areas, and to do so in a way that manages brand image as well as legal risk.