I have just returned from the hugely successful 2017 ERA D2C Convention held at the Wynn Las Vegas. While in our meetings at D2C, there was a lot of conversation about self-regulation and the Federal Trade Commission (FTC).
As states continue their quest to compel online vendors to collect sales and use tax on sales to customers located in the state and to subject such vendors to state income tax, a current trend has been targeting vendors selling via online marketplaces. Some states assert that the presence of inventory held for a vendor or the presence of the marketplace provider/facilitator in a state acting on behalf of a vendor is sufficient nexus or connection of the vendor with the state to subject the vendor to the state’s taxing jurisdiction.
At the end of August, I wrote a blog entitled “Advisory: Free Trials, Automatic Renewals & the Road Ahead.” The blog covered how regulators, both state and federal, as well as state legislatures have keyed in on negative option offers and automatic renewals.
It’s a big deal that isn’t going away anytime soon.
It has been a super busy summer here at ERA. There has been lots going on at the FTC, with our self-regulation program ERSP, and with Congress (believe it or not).
In preparation for the 2017 ERA D2C Convention at the Wynn Hotel in Las Vegas, I wanted to make sure that you do not forget about the Online Sales Tax issue in all the excitement.
Elizabeth Dexheimer and Jesse Hamilton over at Bloomberg just wrote an excellent article on the Equifax hack that I wanted to draw your attention to.
Entitled “Equifax’s Seismic Breach Tests Trump’s Pledge to Dismantle Rules,” it points out an important dilemma facing the Trump Administration with potential ramifications for direct response marketers.
Many may not remember this, but there was a time when spam emails ruled the (inbox) world. The content of such emails ranged from irrelevant to inappropriate, subject headings were often misleading, and trying to figure out how to unsubscribe would be like trying to figure out how to avoid Game of Thrones spoilers.
Recently, a highly placed source in the “know” forwarded me an excellent blog post from Leslie Fair entitled: FTC uses ROSCA to challenge risky “risk-free trials”. It was the type of back channel message that we sometimes get working on behalf of the industry. The message was clear, this is an issue that is going to get a lot of government attention very soon.
I have big news to share with you and it is great for the industry. The Justice Department has formally ended its Operation Choke Point efforts. That is a huge win for ERA, the industry, and all of the folks who took a stand against the Department of Justice on this issue over the years.
After extensively blogging on this issue dating back to the summer of 2014, I can tell you that this has been a long time coming. Since that summer, we have blogged on the dangers of Operation Choke Point a total of 24 times.
It is a new world with new rules of the road. The future is hazy and unclear. Our fast-paced panel, “A Glimpse Into the Future,” at the 2017 Government Affairs Fly-In explored how the changes in government will evolve in our industry and affect your bottom line. So what does the future hold for direct response marketers navigating this new terrain?
As the Trump Administration promises less regulation on businesses, states stand ready to fill any enforcement void left at the federal level. One of the big questions on everyone’s minds at the 2017 Government Affairs Fly-In was, what can we expect to see in the next four years?
In May, I wrote “The FTC Isn't the Only One Watching Direct Response Marketers.” This still holds true. State attorneys general, such as Karl A. Racine (D-DC), an up-and-coming star in the Democratic Party, and other state regulators are making enforcement waves on direct response marketers. And according to Racine, state attorneys general are ready to lean in on enforcement and step up.
Sen. Luther Strange (R-AL) joined us as our legislative keynote speaker on day two of the 2017 Government Affairs Fly-In and his remarks on the current political landscape were inspiring. Strange’s regulatory experience as Alabama’s Attorney General has given him plenty of background knowledge of the direct response industry to take straight into the U.S. Senate.
I am truly excited this year about the Government Affairs Fly-In 2017 and our companion event, the ERSP Summit, which will take place May 23-24 right here in Washington, D.C.!
Today it is my honor and privilege to tell you a story about the junior senator from the great state of Alabama. Senator Luther Strange (R-AL) assumed office on February 9th, 2017 after his predecessor Senator Jeff Sessions (R-AL) was nominated by President Trump for the position of the Attorney General of the United States of America. Back home and on the campaign trail, he is also known as “Big Luther” Strange.
Back in January I alerted you to how Colorado’s “Rat Your Customer Out” Law would affect marketers. The big picture view is that the U.S. Supreme Court recently declined the review of a case that would require marketers to either collect sales tax on customer purchases in Colorado or report details of the purchase to the state tax collector.
I recently ran across some new advice from the FTC offering tips for businesses that are impersonated during phishing scams. I hadn’t given much thought to this topic before so imagine many you haven’t either. The FTC contends that computer users are not the only ones harmed by phishing scams. The simple fact is that industry is also the victim of these crimes as well.
How can you combat these phishers?
Earlier this month the FTC released its annual summary of consumer complaints from its Consumer Sentinel Network. It also released a new Consumer Sentinel Network Data Book which you can find here. There is a lot that Direct Response marketers should know about this data release and the report itself. It is important to understand that the FTC and other consumer protection enforcers use this report, and the underlying data, as a sort of roadmap for future enforcement activity. So it’s a good idea to keep an eye out for it every year. It is a great tool to help you understand and predict future trends in the consumer enforcement arena.
Hello and greetings from my balcony overlooking the ocean here at the Caribe Hilton in San Juan. The view is so perfect I knew I had to include a picture of it or you would probably think that my claim was too good to be true. Anyway, it turns out that a little Caribbean vibe is very, very good for an ERA trade show like GIS 2017. First, if you don’t already know, the food in Old San Juan is just excellent. It exceeded every expectation and you have my strongest personal recommendation on that. Second, it is also clear that a little Puerto Rican Rum can serve as a great accelerant. The parties at this show had a little extra energy and island vibe that is impossible to replicate anywhere else in the world.
The education panelists were also just absolutely incredible at this year’s show. I mean people where literally leaving my onsite GA committee meeting early to go hear the speakers. So props and congratulations to the team that worked so hard to bring Dean Gaziosi, Brendon Burchard, Frank Kern, Alex Moore and the other rock star speakers down to visit with us. From now on I am going to make sure my committee meetings don’t conflict with ERA’s education. It’s just hard to compete with celebrities like that.
Thinking back over the week there were some interesting Government Affairs discussions that I want to update you on.
Greetings from Puerto Rico! I am currently conferencing here in San Juan at the Caribe Hilton for ERA’s signature Great Ideas Summit 2017. If you couldn’t make the trip we are sending you good vibes and sunshine and hope you can be with us next time.
From the ABA Antitrust Section bi-annual Consumer Protection Conference in Atlanta, Acting FTC Chairman Maureen Ohlhausen made her first keynote address in her newly elevated roll. To the backdrop of playful beluga whales in the ballroom of the Atlanta Aquarium, she outlined three consumer protection priorities she will put in force during her time in the driver’s seat.
President Trump just promoted FCC Commissioner Ajit Pai to the chairman of the Federal Communications Commission. ERA and our member companies look forward to working with him in the years ahead to ensure our country has good public policy solutions that move our nation forward.
While congratulations are in order for Chairman Pai and we wish good luck with the new role, there is one little problem with this appointment that must be pointed out. It turns out that Commissioner Pai is something of an amateur gardener. While a noble pastime, gardening can also be tricky and caution should be encouraged for a man with such an important new role. In fact, from all of the reports I have seen to date, it is clear that Commissioner Pai should resist his green thumb urges and leave all of the weed whacking to the professional gardeners at least until the conclusion of his time at the FCC.
Last week I was pumping up the Trump Administration for identifying Utah Attorney General Sean Reyes as a potential Chair of the FTC along with FTC Commissioner Maureen K. Ohlhausen as the favorite for acting FTC chair. Both are seasoned consumer protection pros who would do a great job.
Today congratulations are in order with Commissioner Ohlhausen having been appointed as the acting Chair of the Federal Trade Commission. As I noted last week, I feel a lot better about the FTC with this development. Commissioner Ohlhausen needs no introduction to ERA having given us a speech in 2013 and again visiting with us for a fireside chat with Ed Glynn in 2015.
Unfortunately for the President this excellent move at the FTC might be the only thing he got right last week. It was a rocky road on a number of other fronts. The administration was panned for its botched handling of executive orders on the immigration travel ban and it’s restructuring of the National Security apparatus. These developments sucked up a lot of media attention and distracted everyone from another key story that we are keeping an eye on for ERA members. That’s why I wanted to take this opportunity and tell you about the very real possibility that we might soon be experiencing the Trump Trade Wars.
I have some incredible news to share with you. Recent reports suggest that President-elect Donald Trump is considering Sean Reyes as the next chairman of the FTC. Currently he is the attorney general of Utah.
You may recall Attorney General Reyes’ keynote at the 2015 ERA Government Affairs Fly-In where he got a standing ovation from our attendees. He also had a memorable visit to last year’s D2C conference in Las Vegas where he joined a panel of legal experts to talk about self-regulation.
Last year, right before Christmas, a big thing happened that you really need to know about.
The U.S. Supreme Court declined the review of a case that requires marketers to either collect sales tax for purchases made by people in Colorado or report on customer’s purchases to the state.
The industry has been fighting against this outcome since 2011 when the DMA filed suit in Direct Marketing Association v. Brohl. ERA along with its partners in the True Simplification of Taxation (TruST) coalition strongly supported this effort filing and Amicus Brief in support.
However, all the appeals have been exhausted so now Colorado will want you to report.
Here is what you need to know to get ready:
It’s been a “Yuge” year so far.
Last week I shared a “beautiful” cheat sheet to help Direct Response Marketers survive the Trump era and this week I’ve got something better.
What you might ask?
Well the only thing that can trump that would be the inside scoop straight from the FTC. That’s why I reached out to my friend and long-time FTC insider Lesley Fair. She agreed to visit with ERA’s Government Affairs Committee to tell us “what’s really going on” so you can do a safety dance.
Thankfully the FTC agreed to the visit as well. That’s why we love the Federal Trade Commission (and you should, too!).