2023 ANA Policy Preview for Advertisers
The year was 1864, and the Confederate harbor of Mobile Bay was heavily fortified with "torpedoes" (i.e., sea mines). Despite warnings from his crew, Union Admiral David Farragut charged ahead, issuing his famous order, "Damn the torpedoes; full speed ahead," an act of courage that resulted in his victory. That about sums up what advertisers must do to succeed in the perilous policy waters of 2023.
Below is a snapshot of some of the ways ANA is supporting its members across the broad range of congressional, executive, and state policy issues in this new year.
Federal Priorities
Congress and the Administration
The new Congress has begun its work, and ANA has continued to build and strengthen its relationships with the new House Republican majority, as well as the Democrats who will control the Senate.
House committees of importance to ANA (e.g., Energy and Commerce, Judiciary, and Ways and Means) are being formed, and Senate committees will soon announce their rosters. As committees are being set, ANA has renewed its efforts to educate members of Congress on issues important to advertisers.
At the top of the congressional priority list, ANA will continue to call for Congress to adopt a national privacy law that sets specific guardrails for permissible and impermissible privacy practices. Further, ANA will highlight the importance of truthful, non-deceptive advertising to convey information consumers need and want, while continuing to oppose unnecessary and burdensome regulatory and taxation schemes (such as eliminating the deductibility of advertising costs).
Congress and the Biden administration will continue to discuss issues around social media concentration and the possibility of censoring or banning platforms because of national security concerns and potential content manipulation through various algorithms. ANA will be watching those developments carefully to ensure that marketing impacts are taken into consideration.
Agencies
The Federal Trade Commission (FTC) has come roaring back to life and has begun various rulemaking activities with challenges for the advertising industry. ANA is working to ensure that the FTC follows its statutory obligations, and ANA has already filed comments in numerous proceedings, including:
- A possible investigation of "commercial surveillance" and data security practices. In its comments, ANA pointed out that the FTC's frequent use of the term "surveillance advertising" demonstrates the agency's pejorative view of advertising and its dismissal of the many benefits of truthful, non-deceptive advertising. ANA urged the FTC to develop a more accurate record before it decides that a rulemaking in this matter is needed.
- Comments on Dot Com Disclosure guidelines, in which ANA urged the Commission to maintain its current guidelines, as they provide flexibility and allow new and emerging tech areas to develop and flourish.
- A regulatory review of the FTC's Endorsements and Testimonial Guidelines, in which ANA called on the Commission to focus on updating and clarifying the Guides without introducing new theories of liability.
- An Advanced Notice of Proposed Rulemaking on the Use of Reviews and Endorsements, for which ANA provided comments highlighting that the FTC has not met its obligation to provide evidence of a systemic problem warranting a rulemaking. Instead, ANA suggested that the Commission consider alternatives to rulemaking such as workshops and roundtables to help inform the FTC's deliberations.
In addition, shortly ANA will file comments in FTC proceedings on "junk" fees and the Green Guides.
In the privacy area, the National Telecommunications and Information Administration (NTIA) will soon seek comments on how companies' data practices may "impose outsized harm" on marginalized or underserved communities. ANA will review that notice and determine the appropriate response to NTIA's action.
Finally, the U.S. Postal Service (USPS) is implementing a 10-year modernization plan which includes network changes, cost-cutting measures and rate increases. These will impose significant burdens on the marketing community, and ANA will keep up our efforts to let the USPS know of our concerns about escalating rates and reduced service for our members.
International
The invalidation of the EU-U.S. Privacy Shield still poses challenges for the international flow of data for advertising and marketing. A new framework is likely to take effect in March 2023, and ANA will monitor this privacy proposal (with its dispute resolution mechanisms) to confirm that it benefits our members and promotes international data transmission and growth.
State Priorities
Nature abhors a vacuum, and – in the absence of significant activity on data and privacy-related measures at the Federal level – the states have jumped in with both feet. With every state holding legislative sessions this year, there will be a raft of legislation on topics of interest to ANA members. ANA will continue its aggressive engagement on these state issues:
Privacy
Numerous privacy bills covering an array of topics and containing very different enforcement regimens are being introduced in statehouses across the country. Comprehensive privacy bills have emerged in Oregon, Indiana, and New York, among other states, that pose threats such as a private right of action and would hamper the data-driven economy by imposing limits on sharing of data or requiring onerous disclosures.
In Washington State, a bill that would mandate obligations related to broadly defined "consumer health data" seems poised to become law. In addition to the continued efforts to pass omnibus privacy laws in the states, an emerging focus on children's privacy has taken hold with proposals mimicking California's newly enacted age-appropriate design requirements, expanding child privacy restrictions to include teenagers (Virginia), and data collection prohibitions (South Carolina).
New privacy laws also are taking effect in several states, including California, Colorado, Nevada, and Virginia. For example, the California Privacy Rights Act of 2020 took effect on January 1 and established a new privacy regulator in that state.
While enforcement is set to begin later this year, the state still has not issued implementing regulations, making it difficult for advertisers and others to know and prepare for their obligations under the law. In Colorado, ANA commented on proposed rules to implement the Colorado Privacy Act that were published several months ago, recommending that Colorado harmonize its approach with other state laws and institute safeguards in the use of universal opt-out mechanisms.
Taxation
ANA has successfully deterred ad tax changes at the federal level, but many state proposals have emerged (e.g., in Connecticut, Massachusetts, and New York) to tax digital advertising revenues, and even responsible data collection, sharing, and use. If enacted, these bills would pose significant burdens on advertising, and ANA will be engaging on them, as necessary.
Pending litigation challenges the legality (including the constitutionality) of the digital ad revenue tax enacted by Maryland, a proposal that ANA vigorously opposed. ANA is vigilantly following this lawsuit.
Within the Ad Industry
Through its Center for Ethical Marketing, ANA is launching two industry-wide initiatives addressing consumer trust issues. The first updates ethical standards and best practices on a range of topics concerning the marketing industry. This effort will help to counter false perceptions of ethical lapses in advertising which are triggering unneeded and overzealous regulation.
The second initiative assists in ensuring that all direct marketing companies use ANA's consumer choice tool (DMAchoice.org), which helps build consumer trust by reducing unwanted mail and mail waste and leads to efficiencies and responsiveness to consumers.
It's already an extremely busy year. Please be sure to let ANA know of your specific interests or the impacts you encounter from legislative or regulatory activities, so the ANA team can work with you and bolster ANA's advocacy on your behalf.
The views and opinions expressed are solely those of the contributor and do not necessarily reflect the official position of the ANA or imply endorsement from the ANA.
Christopher Oswald is EVP and head of law, ethics and government relations at ANA.
