The Universal Language of Advertising Self-Regulation

By Peter C. Marinello, Esq.

This past January at the ERA Mid-Winter Leadership Conference in Miami, ERA Europe Executive Director Marcel Avargues graciously invited the Electronic Retailing Self-Regulation Program (ERSP) to sit in on the European Self-Regulation Committee and share some thoughts regarding ERA Europe’s newly conceived Self-Regulation Program. My first impressions after meeting this diverse group was how provincial we really are in the United States, particularly when it comes to our regulatory activities. For example, I was a bit envious watching the cooperative dialogue about potential advertising enforcement mechanisms between representatives from England, Germany and even Albania, while wondering if such an arrangement would ever be possible with the U.S. and Canada or the U.S. and Mexico.

While there certainly has been a polite exchange of ideas between the U.S. and its neighbors, it is nothing like the collaborative effort going on with ERA members of the European Union.

COMPARING EUROPE TO THE U.S.
Procedurally, the ERA Europe Self-Regulation Program appears very similar to our ERSP. More specifically, it is the shared goal of both programs to have reviews completed 60 days after commencement of the inquiry, and a marketer is expected to provide substantiation within 15 days after receiving notification of the review. In addition, both reviews are limited to “primary or core efficacy or performance claims” and the final determination, from an evidentiary perspective, pertains to substantiation addressing the claims made and meeting the general standards of competent and reliable evidence.

It’s also interesting to note that home shopping programs are much more prevalent in Europe than they are in the U.S. And, unlike in this country where home shopping is a mostly a “live” vehicle of claim dissemination (and doesn’t particularly lend itself to “stagnant” advertising claims), in Europe many home shopping channels run repeated broadcasts-making it a better mechanism for self-regulation. The ERA Europe Self-Regulation Program also appears more likely to venture into areas of advertising that encompass business practices (e.g., refund practices and continuity disclosures) and will offer program certification to companies that have adhered to program principles and recommendations.

While the applicable federal regulations (e.g., “the six-month rule”) prohibit me from still characterizing ERSP as a “new” forum of advertising self-regulation, the truth is that the ERA Europe Self-Regulation Program, like ERSP, is in for a number of unforeseen challenges that will surely test its effectiveness. ERSP will make itself available to the ERA Europe Self-Regulation Program should it care to avail itself of some of the learning experiences that we confronted as a start-up self-regulation program. Similarly, we will be looking to the ERA Europe Self-Regulation Program for ways to strengthen and improve ERSP and make it a more “robust” program for our users. After witnessing the commitment of the European Self-Regulation Committee, there is little doubt that the ERA Europe Self-Regulation Program will be an enormous success.

Peter C. Marinello is director of the Electronic Retailing Self-Regulation Program for the National Advertising Review Council (NARC) in New York, N.Y. He can be reached at (212) 705-0126, or via e-mail at [email protected].