INTRODUCTION Contributed by: Jeffrey A. Greenbaum, Frankfurt Kurnit Klein & Selz
enforcement efforts, and the types of private lawsuits that are brought often closely track the kinds of issues that cause widespread concern for consumers around the world. As a result, there are often significant devel - opments related to certain types of marketing prac - tices in many jurisdictions at around the same time. The widespread, increased concern over climate change is leading regulators and others to pay much closer attention to environmental marketing. In a num - ber of jurisdictions, not only are we seeing new laws and self-regulatory guidance coming into effect, but there is an increase in enforcement and private litiga - tion as well. With the environmental marketing land - scape having changed so much in the past decade, regulators and others are attempting to provide the rules of the road for the types of claims that marketers are using today, such as claims about sustainability and carbon neutrality. As so much of the global economy is dependent on the online ecosystem, there is also a great deal of attention being paid around the world to marketing on the internet and the ways in which online marketing can harm consumers and competition. One core principle that marketers should be aware of is that consumers generally have the right to know when they are being advertised to. Although the defi - nition of what constitutes “advertising” varies by juris - diction, advertisers should ensure ‒ when engaging influencers to speak on their behalf, when producing native advertising, or when engaging in other market - ing practices where it may not be clear to consumers what is happening ‒ that they clearly and conspicu - ously disclose to consumers that they are, in fact, being exposed to advertising. Regulators and self-regulatory authorities around the world are also becoming increasingly concerned about the use of so-called “dark patterns”, which are commonly understood to be online design practices that trick or manipulate users into making choices they would not otherwise have made or that may cause harm. Dark patterns can take many forms, such as deceptive advertising formats, claims that cre - ate undue urgency, coercive advertising techniques (such as shaming consumers into making a particular
choice), or preventing consumers from easily cancel - ling a subscription. While the rules and self-regulatory guidance on dark patterns are still evolving, adver - tisers should consider upfront whether they are just engaging in effective marketing or whether their mar - keting practices will be seen as improperly coercive. The use of online disclosures is getting increased atten - tion as well. When disclosures are required to ensure that an advertising claim is not misleading, regulators are asking the question of whether online disclosures are effective. Although “one click away” may have been sufficient 20 years ago, this is less likely to be the case today. As the US Federal Trade Commission has expressed recently, in order for an online disclosure to be effective, it should be “unavoidable”. The rise of AI poses tremendous opportunities for marketers and consumers, but regulators and legis - lators are already expressing serious concerns about the potential harm that AI can cause, which is leading to new rules and guidance. As this area continues to evolve, at a minimum, marketers should ensure that they do not use AI tools in ways that can harm or deceive consumers. Marketers should also pay close attention to local rules – which vary widely – about their obligation to disclose when generative AI has been used to produce advertising materials. Final word Preventing serious consumer harm – whether online or offline – continues to drive many regulatory and self- regulatory developments around the world. Advertis - ers are well-advised to exercise extra caution when making health claims, advertising unhealthy food, pro - moting products that can cause consumers serious financial harm, and marketing to children and other more vulnerable audiences. The country-by-country guidance presented in this guide provides a great introduction to these and many other important advertising law issues. While there is no substitute for engaging expert counsel in the relevant jurisdiction to advise you, this guidance will prompt readers to begin thinking about these topics and should give a good sense of some key issues to consider when developing marketing campaigns.
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