
Photograph by Roger Hagadone
As the Electronic Retailing Self-Regulation Program marks its sixth anniversary, ERSP Director Peter Marinello talks about the program’s success and why other industries are taking notice.
BY VITISIA PAYNICH
In 2000, the direct response industry was experiencing a bit of deja vu: a slew of bad actors tarnishing its reputation by making egregious product claims in their DRTV campaigns and threatening the very principles for which the Electronic Retailing Association (ERA) was founded back in 1991.
The association sought support from its membership and those within the direct response community by launching an ambitious plan to preserve the industry’s image, to maintain control and to fend off government intervention. The answer, of course, came in the form of self-regulation. Yet in order to get a full-fledged self-regulation program off the ground, ERA realized it needed to partner with a third party, the National Advertising Review Council (NARC). And on July 1, 2004, ERA and the NARC launched the Electronic Retailing Self-Regulation Program (ERSP).
Peter Marinello, director of ERSP, says the program’s success has piqued the interest of other industries that look at ERSP as a model for their own self-regulation guidelines.
Electronic Retailer caught up with Marinello for an update on ERSP’s caseload, to discuss the process for filing a case and to learn why he believes the program has set a precedent for other industries.
Electronic Retailer: Can you provide a brief history about ERSP?
Peter Marinello: We opened our doors back in July 2004 and the program really began at the behest of the Electronic Retailing Association (ERA), which–because of some nudging from the Federal Trade Commission–became very concerned about egregious advertising claims that were permeating the airwaves in early 2000. These were really weight-loss claims. The FTC essentially went to ERA and said, “Listen, if you guys don’t get your house in order, we’re going to do it for you.” So, ERA did the very responsible thing and went to an outside third party, the National Advertising Review Council, and asked them to set up a self-regulatory program designed specifically for the direct response industry. So, that’s how it really began. This is a very unique collaboration between ERA and the National Advertising Review Council, particularly the Council of Better Business Bureaus, which administers the program.
Three of the primary objectives of ERSP are to improve consumer confidence in electronic retailing; provide an expeditious forum for getting blatantly egregious advertising claims off the airwaves and out of publication; and lastly, to demonstrate to the regulatory agencies, the direct response industry’s commitment to meaningful self-regulation.
ER: How many cases have been submitted to the program, to date?
Marinello: To date, we have closed 255 cases, which did not include several compliance follow-up cases that we’ve handled. It also doesn’t include the yearly live shopping analysis that we do for the industry.
ER: What percentage of cases do consumers file versus marketers?
Marinello: I would say that the breakdown of cases is about 40 percent by the marketers, 40 percent is monitoring by ERSP itself and then I would say the other 20 percent is consumer-generated.
ER: Can you provide some other statistics on the program?
Marinello: As I mentioned, we closed 255 cases. The average length of a case is just about 65 days. The published decisions are 243 cases, so there’s actually a little lag time between when we close a case, when we get the press release going, and when we actually post the case on the website. So, that’s why there’s about a 12-case lag there. We’ve probably monitored over 5,000 pieces of direct response advertising, 300 hours of live shopping, 5,000 pieces of e-mailed spam and we’ve pursued about 170 consumer complaints. And, that does not include seven non-English-speaking infomercials that we’ve handled. As you can see, we really try to run the full gamut of the direct response industry.
ER: What is a “competitor challenge” and how does it protect people’s anonymity?
Marinello: We have this great niche in the ERSP policy and procedure that allows companies to challenge competitive advertising anonymously. There are two important advantages for having this nice procedural niche. It allows companies to bring advertising to our attention without worrying about retaliatory challenges and without being publicly perceived as a whistle blower. Those are two key competitive pieces for a challenge. Now if you bring a challenge anonymously, it does not allow you to see a marketer’s responsive submission. All it really does is it allows you to bring an advertising campaign to our attention anonymously and then at the very end of the case, you’ll be informed as to the outcome of the case. So on one side, it offers a discreet mechanism for bringing a case without disclosing your identity, while it also enables the marketer to participate in the process without worrying about a non-disclosed competitor seeing some proprietary information that may be necessary in substantiating their claims.
ER: Once a case is filed with ERSP, what’s the process?
Marinello: Once a case is filed, a marketer will have 15 calendar days to submit their substantiating information. After we receive that marketer’s initial response, ERSP or a challenger will then have 10 days to offer rebuttal information. After we receive the rebuttal information, we’ll pass that on to the marketer for almost the second bite of the apple, where they will have another opportunity to reply to the challenger’s information. And then from there, ERSP has 15 days to write its decision and come to its conclusion. After that, the marketer has 10 days to provide what we call a “Marketer’s Statement,” which is a statement indicating whether or not the marketer will abide by the recommendations of ERSP. They’re also able to give their comments on the usefulness of the process. That whole sequence of events generally falls within 60 to 65 days. And I also should note, within that period, there is an opportunity for both the marketer and the challenger to come and meet with us–either personally or via a telephone conference.
ER: Are most of the cases brought before ERSP legitimate cases?
Marinello: Yes. As a matter of fact, we do have a weeding out process before we officially commit to the case, where if we feel that a challenge is bringing a frivolous complaint, we won’t proceed with the complaints.
ER: What’s the most difficult case that you’ve come across?
Marinello: Maybe some of the most difficult cases collectively are homeopathic cases. The reason being that homeopathic has its own historical reference point that has to be followed and it gets very tricky because it’s based on the traditional use of certain ingredients and the mixture of these ingredients. And, I would say that the regulatory landscape for homeopathic products isn’t as clearly defined as it is with traditional-use products. When I say “traditional-use” products, I’m referring to the types of products we see on an everyday basis–such as exercise equipment, dietary supplements, etc.–that have a clearly defined regulatory road to follow.
ER: How can people find out more information about cases that have been filed with the program?
Marinello: There are two main vehicles of information for ERSP. One is the National Advertising Review Council website at www.narc.org, which includes a specific section on the Electronic Retailing Self-Regulation Program. The other vehicle is the ERA site at www.retailing.org, which also has a very neat section for ERSP. All of the cases that we complete are posted on both of those websites along with the press releases that accompany the cases. There’s also information on how a company or consumer can go about filing a challenge. The posting of case reports on the NARC and ERA websites is a significant element in reinforcing the transparency of our self-regulatory work and the integrity of the process.
ER: The FTC has been very supportive of ERA and ERSP. Do you consult with the Commission on every case?
Marinello: Absolutely not. The cases that are brought to us are treated very confidentially. The only time any outside third party will see the cases is at the conclusion of the case. With that being said, one of the reasons for the success of the program has been the FTC’s support of the program. A lot of times, we’ll refer cases. For example, if a company declines to participate, we’ll refer a case to the Federal Trade Commission. The FTC always makes it a point to put that referral case on the top of its priority list.
ER: Does the industry share the FTC’s sentiment about ERSP?
Marinello: I think it does. We’ve had an uptick in terms of competitive filings in the six years that we’ve been around now. When we started out, it was a monitor-heavy type of caseload; and subsequently, we’ve seen a great increase in competitor challenges–particularly, with the anonymous challenges that we talked about. There are five appending anonymous challenges that are going on right now. So I think a lot of companies and marketers out there see this as a very useful mechanism for bringing egregious advertising to our attention.
ER: What type of precedent has this program created for this industry and for other industries?
Marinello: It’s been an enormous precedent in not just the advertising industry but in other categories of advertising as well. It’s a terrific example of how self-regulation can work. Let’s take green marketing, for example. If there is a concern in one particular discipline of advertising, such as green marketing, those in that industry feel that they can come to the National Advertising Review Council and set up their own self-regulatory process based on that concern. We saw that happen in the Children’s Food and Beverage initiative a few years ago, where there was this vast industry concern about childhood obesity. There was a great self-regulatory opportunity there, and the NARC and the Council of Better Business Bureaus administered a terrific program about three years ago. We’re seeing the same thing occurring in the behavioral advertising world right now, and I believe the industry is looking to the NARC for self-regulatory response to the issues it’s currently facing. I think a lot of that is due to the success of the direct response industry’s self-regulatory program.
ER: What trends are you seeing occurring in the marketplace right now?
Marinello: I think there are a couple of things going on right now. One thing that we’re looking very closely at is the affiliate advertising space and seeing how, with a self-regulatory program, we can offer help to the direct response community in terms of providing some guidance. It’s also interesting that one of the new trends is actually an old trend–we’re seeing an uptick now in weight-loss advertising. So, we have to keep a close eye on some of the claims now being made in weight-loss advertising again. It’s funny how this is cyclical, sometimes. Ten years ago, there was this big issue with the egregious claims being made in the weight-loss industry and now all of a sudden, we’re seeing some companies becoming a little bit more aggressive with the claims they’re making and I think the same holds true for some of the exercise equipment manufacturers out there.
ER: What changes or developments can we expect from ERSP in the near future?
Marinello: I think it’s really important that ERSP makes a concerted effort to evolve with the direct response landscape. That means monitoring the advertising in all these new and different areas of social networking–Facebook and Twitter–and in the affiliate advertising area. I believe we also need to keep an eye on what’s going on in the behavioral advertising world. In addition, I would like to see ERSP going beyond just looking at claim substantiation and truthfulness and accuracy; maybe getting into some of these very topical issues like negative options and things like that. It’s very important for this program to grow with the industry, because it’s evolving at warp speed and ERSP needs to keep pace with it.
ER: Any final thoughts?
Marinello: Any success that this self-regulation program has earned is really predicated on the voluntary cooperation of the marketers and direct response community. ERSP doesn’t work at all without it. The marketers and those in DR have been so supportive over the past six years of what we’ve done, and that’s really helped this program create a nice self-regulatory niche out there.