NATIONWIDE: An Introduction to Advertising: Transactional & Regulatory

Advertising 2020: Truth, Change and Creative Storytelling

By Ronald Urbach, Chairman, Davis & Gilbert LLP

At the dawn of a new decade, the most critical issues facing the advertising industry involve the intersection of advertising and law. Confronted with rapid change fueled by data, technology and the absence of truth caused by political leaders, our industry must do what it does best – creative storytelling while standing for facts and truth.

So what are the key issues that we face?

Truth and Facts 

We live in a world where truth and facts have seemingly become less relevant in our daily lives. But in marketing and advertising, they are the fundamental building blocks of competition. Consumers need accurate information to make informed choices about products and services.

In the ad lawyer’s world, this is all about claims, substantiation, and truthful and fair statements and business practices. To competitors, it’s about winning in the marketplace based on honest differences. To consumers, it’s about trust – trust in brands and the sales marketplace.

We must use our expertise and effort to foster truth and reality. These principles are critical if advertising is to survive the rapid pace of change and transformation sweeping the industry, media, brands, agencies and consumers.

Privacy 

There is a seemingly unquenchable thirst for data driven by a need to make advertising more efficient and effective in connecting consumers with relevant messages about products and services. The collection, retention, use and sharing of data has led to the rise of privacy and privacy-related concerns.

2019 was the year of the states – California Consumer Privacy Act (CCPA) with its amendments and regulations, Nevada protecting its residents, New York strengthening data security and more. All of this has added to the rise of a patchwork of state and local rules making it untenable to operate a national, let alone global, business.

We expect more of the same in 2020, but on a faster and more aggressive scale. There will be new laws in more states as well as efforts to make current laws like California more restrictive in addition to more aggressive regulatory enforcement and consumer class actions.

Although the industry and government leaders have coalesced around a national privacy law, Privacy for America, there will be no new federal law anytime soon. The two big sticking points – private right of action and preemption of state law - make compromise difficult. With today’s political climate and in an election year, we will have to wait for 2021.

Technology 

Technology has always fueled innovation. The same is true for marketing and advertising.

The critical change that has fueled much of what has occurred in advertising is faster and more effective wireless communication, and there’s more to come with 5G. This has led to the rise of new media – digital and social; the development of new platforms and apps; the rise of artificial intelligence (AI), virtual reality (VR) and augmented reality (AR); the existence of streaming platforms and explosion in content; the adoption of blockchain and much more.

Whether you’re a brand, agency, media, content provider or consumer, technology and innovation satisfies current needs while leading to increased expectations of future needs. Altogether, this results in the industry moving forward by adopting change and then moving forward with a seemingly endless supply of innovations. This makes the advertising industry one of the most progressive and rapidly changing segments of our society. And there is no upper limit to this process.

Change 

So what does this all mean? Change, increasing at a rapid level with the cycle increasing at a rapid pace.

Creative Storytelling 

What makes advertising successful is its unique ability to creatively tell stories while simultaneously achieving brands' marketing and advertising goals. The need to present compelling, creative stories with different technologies and platforms, while adapting to changes in consumer tastes, is the fundamental creative challenge facing the industry. Without successful creative storytelling, all of what you read, see and hear becomes nothing but words and images.

Advertising 2020 

I am optimistic that 2020 will be the dawn of a new golden age of advertising. Those who have criticized the industry and its processes will drift away to the annals of irrelevancy. What will remain and flourish is advertising with the highest level of creative storytelling and a clear focus on truth and facts, using data and balancing privacy, innovating through change, generating marketing efficiency and success, and delivering consumer convenience and value.

This is what we need – Advertising for the Decade of the 20s.