Advertising Law Alerts

April 8th, 2011

New Best Practices for Mobile Marketers

The Mobile Marketing Association recently issued a revised version of its "U.S. Consumer Best Practices" (version 6.0) (effective April 1, 2011), which includes a number of changes that could impact advertisers who utilize mobile programs. While the Mobile Marketing Association Best Practices do not have the force of law, many leading advertisers follow them, and the mobile carriers require compliance for programs run on their networks.

One of the most significant changes for “recurring” standard message programs is verification for non-mobile opt-ins.  Under the new guidelines, if an advertiser obtains an opt-in on a Web site or other non-mobile medium, the advertiser must verify the subscriber’s possession of the mobile device. The new guidelines also now specify what must be included in opt-in confirmation messages, including a service description; the additional carrier costs (e.g. Msg&Data Rates May Apply); frequency of messaging; customer support information (HELP) and opt-out information (STOP). In addition, if an advertiser changes the short codes for a “recurring” standard message program, it must provide a subscriber with the opportunity to opt-out of the program before and after the short code changes are implemented.

There are several new guidelines for standard rate programs. The new guidelines now distinguish between “recurring” and “one-time” message programs. In previous versions of the guidelines, only “recurring” message programs were addressed and marketers were left to determine how to bring a single message into compliance. Unlike the previous version, the new guidelines recommend disclosures for calls to action and other advertising materials and provide clear examples of disclosures for both “recurring” and “one-time” message programs. One change to note is that the HELP message (i.e., Reply HELP for help) is no longer required for messages sent as part of “recurring” standard message programs after the initial confirmation message. Also, an ad for a one-time text program does not have to include a STOP message. 

The terms and conditions for a “recurring” message program must now include customer service contact information as well as the frequency with which messages will be sent (e.g., 4 messages per month). HELP and STOP instructions and “Message and Data Rates May Apply” continue to be required.

The new guidelines also distinguish between and address disclosures by advertising channel (e.g., print, online, television, radio). For print and radio, this means that there are fewer recommended disclosures than before. Additionally, the automatic opt-out due to inactivity has been extended from 6 months to 18 months.

If you have any questions about the new best practices, please contact Terri Seligman at (212) 826 5580 or tseligman@fkks.com, Kelly O’Donnell at (212) 826 5544 or kodonnell@fkks.com, or any other member of the Frankfurt Kurnit Advertising Group. For more alerts and general announcements from our firm, follow us on Twitter.

Disclaimer. This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.