Advertising Compliance | How to get marketing and legal teams thriving

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Advertising Compliance | How to get marketing and legal teams thriving

In our experience, many corporate clients face a number of challenges with their legal ad review process. This is particularly evident in highly regulated industries like insurance, retail or FMCG that may need to manage high volumes of marketing initiatives. Many of these challenges stem from the issues that in-house marketing and legal teams experience while working together. In this article, we take a look at some of these issues, from both the marketing and legal teams’ perspectives. We also explore how to minimise tension between the two in-house teams and what we do to increase efficiencies, while ensuring advertising compliance.

Challenges for in-house marketing teams

One of the main challenges that in-house marketing teams experience is inconsistent turn-around times from their in-house legal team. In our experience, one of the biggest frustrations is that they can’t properly plan or rollout campaigns because the workflow depends on the legal team’s other priorities. It’s not uncommon to hear marketing teams lamenting that their campaigns are often not treated as the most urgent work.

Marketing teams tend to work to tight deadlines, and the business typically doesn’t have the option to outsource the legal ad review work because of the high price often attached to outsourcing of specialised legal work. It can be difficult to budget for this type of work when charged at an hourly rate, especially in highly regulated spaces like insurance or credit services. When companies do decide to outsource the legal work of advertising reviews, there is typically the added issue of contractors lacking the necessary product and business knowledge.

Another challenge for marketing teams is that sometimes lawyers may not understand the marketing objectives and provide advice that is too legally focused and not sufficiently commercial. This can hinder efforts to have a dynamic and fast-moving team because, while they may need to finalise a marketing piece in a short time frame, they need to consult with legal first. If legal cannot prioritise this need, and balance the commercial along with the compliance requirements, this puts marketing teams in a position where some initiatives may be at risk or the competitive edge is possibly lost.

On the other hand, this also puts an enormous pressure on the legal team as they have other work to manage across a range of areas and need to manage competing priorities.

The risks and consequences for in-house legal teams

Building a successful brand is now equally about effective marketing and legal compliance. In fact, advertising compliance can be a competitive advantage.

We have seen a lot of situations where, due to a lack of advertising compliance, entire marketing campaigns have had to be pulled, resulting in a significant loss in time, resources and opportunities. Then there is the risk of the potential millions of dollars in penalties and the harm to consumer trust that follows.

Businesses are under increased regulatory pressure, particularly since the Royal Commission into the banking and finance industry, which had, and continues to have, a flow-on effect to other industries. The ACCC and other regulators have shown real teeth in enforcing compliance with the Australian Consumer Law and other relevant legislation, designed to protect consumers.

For example, ASIC recently took both criminal and civil action against an insurance issuer and representative for misleading advertising and sales practices. The insurer is facing possible penalties in excess of $80 million for, amongst other misleading marketing practices, misquoting a government website and including it in their advertising.

Whether non-compliance is deliberate or unintentional, the consequences can be catastrophic. Apart from significant penalties and damages claims, regulatory action can trigger substantial brand damage and irreparable harm to consumer trust.

Marketing teams need to understand that these are the realities, and it is the legal team’s responsibility to minimise these types of risks.

Being on the receiving end of legal action as a result of any advertising campaign is not only a failure for the legal team, it is also a failure for the marketing team. And of course, the business and brand.

Tips for compelling and compliant marketing and advertising collateral

Here are three recommendations to have your teams create both compelling and compliant marketing collateral:

1. Create the right environment to get both teams on the same page

Proper training for both the marketing team and the legal team is critical to achieve a common understanding of what the legal framework and requirements are, to produce effective marketing that is also legally compliant.

Arm your marketing team with the knowledge and tools to conceptualise and create marketing collateral that is fundamentally compliant. For example, we facilitated a marketing workshop with a company where the marketing team was not up to speed on some of the basics of advertising compliance. For instance, they were not aware that a disclaimer is often not sufficient to convey important qualifications to a deal, or that a statement can be both true and misleading.

Committing time for this training results in reducing the need for marketing to have to start from scratch. More regularly, the result is far less back and forth between legal and marketing.

Conversely, in-house legal teams can benefit from training about the marketing team’s objectives. When marketing can get legal up to speed about campaign objectives, the importance of specific messaging and provide some background information, it can help the legal team better understand specific commercial requirements.

This type of training is also helpful in the event legislative changes come into effect, marketing objectives shift, and as new team members are onboarded.

2. Explore friction points

When we run these workshops for legal and marketing teams, our first step is to determine what is working well and what isn’t, within the review process. By determining the sources of friction as well as the ideal future state, together we devise a plan to improve workflows and efficiencies.

This type of exercise is best run by an external third party who is skilled in facilitating open conversations between all stakeholders, and can impartially identify the main issues and devise solutions, where teams are unable to.

3. Ensure your external service providers are on board 

If you engage influencers, ad agencies or other third-party providers that are part of the marketing chain (such as online platforms), ensure they are properly vetted. They need to have a clear understanding of your business’ compliance obligations, as well as your brand requirements.

If, for example, an influencer makes untested and unapproved claims, the business can be penalised and, subsequently, may suffer harm to their brand. It is not uncommon for businesses to be found responsible for misleading marketing material produced by third parties.

Bridge the divide

The key to overcoming these challenges internally is to train both the legal and marketing team to understand what is working well between the teams and what isn’t, and establish priorities.

There is one key problem, however, that cannot always be easily resolved, even after all the training and efficiencies have been put in place. That is, when marketing has a number of time-sensitive campaigns in the pipeline, and the legal team is approaching capacity with an influx of competing demands.

For this reason, we saw the need for a solution to support legal teams, that we have named AdUP.

When there is a need for guaranteed turnaround times for marketing collateral reviews, even in the most highly regulated of industries, our team can assist. It is difficult to plan when there are fluctuating volumes to manage. AdUP is our solution that allows access to support from an experienced team of senior lawyers, with fixed fee certainty.

Looking for support to get your legal and marketing teams on the same page?
Interested in discussing our AdUP solution to see if this fixed fee solution is right for your business?
Email your confidential enquiry via connect@leveluplegal.com.au and Brigit Rubinstein will be in touch within 12-24 hours.

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Brigit Rubinstein
Brigit Rubinstein

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