February 28, 2012

Nineteen Questions Every Cause-Related Marketer Should Be Prepared to Answer: Lessons from the NY Attorney General's Investigation of Breast Cancer Cause-Related Marketing

4 min

In November 2011, it was widely reported that the New York Attorney General (the “NY AG”) had opened an investigation into the cause-related marketing efforts of “pink ribbon” charities.  As part of its examination, the NY AG sent comprehensive questionnaires to at least 40 charities and 130 companies asking for detailed information specific to activities in which the sale of a product or service is advertised to benefit a charitable cause.  Venable has since obtained a redacted copy of a typical questionnaire sent to companies involved in cause-related marketing related to breast cancer, a version of which appears below.

A cause-related marketer should review these questions (with a more in-depth analysis available here) to ensure that adequate answers could be given about a proposed campaign in the event of an investigation by a state regulator such as the NY AG.

Please answer the following questions regarding cause marketing campaign(s) concerning breast cancer conducted by your company and/or any of its subsidiaries, divisions or brands (“your company”) at any time since October 1, 2009.  For purposes of this questionnaire, cause marketing means any marketing of products or services which states or suggests that a charity or charitable cause will benefit from the purchase or use of the product or service. Please use a separate questionnaire for each cause marketing campaign and add additional pages to the questionnaire if necessary.

1. Name of your company.

2. Please name the charity or charitable cause that is the subject of your responses below.

3. What are the start and end dates for the campaign?

4. If the campaign has not ended, what is the date on which it is expected to end?

5. Identify the product(s) or service(s) used in connection with the campaign. (Attach additional pages if necessary)

6. Identify each method used to advertise or otherwise promote the product or service in connection with the campaign. Check all that apply:

 product packaging      in-store advertising
 television  radio
 print media  website (provide web address)
 email  Facebook
 Twitter  other (describe)

7. Does (or did) the campaign require the consumer to take any action, other than making a purchase, in order for the charity or charitable cause to receive a benefit? (for example, mailing in a label or entering a code on a website)

 Yes  No
If Yes, please describe.

8. Please describe any benefit that the campaign stated or suggested would be provided to the charity or charitable cause.

9. Please describe the procedures for calculating the benefit due to the charity or charitable cause.

10. If the campaign stated that a percent or amount of your company's profits or proceeds or other financial measure would be paid to the charity or charitable cause, describe how “profits” and/or “proceeds” or other measure are defined and calculated.

11. Did your company guarantee a minimum contribution to the charity or charitable cause?

 Yes  No
If Yes, what amount was guaranteed?

12. Did your company place a limit (cap) on the amount it would pay to the charity or charitable cause?

 Yes  No
If Yes, what is the amount of the limit (cap)?

13. If there is a limit or cap, are procedures in place for discontinuing the promotion once the limit or cap is reached?

 Yes  No
If Yes, describe the procedures.

14. What are your procedures for disposing of and/or re-labeling remaining products after the termination of the campaign?

15. What is the total value of the contribution or other benefit that your company has provided to charity since the campaign began?  List the date and amount of each payment or other benefit. (Attach additional pages if necessary)

16. If any contribution or other benefit has not yet been provided, please state below the date(s) on which such contribution or benefit is expected and the estimated value of such contribution or benefit. (Attach additional pages if necessary)

17. Identify each of your company's products that contained marketing for the campaign, and state the number of such products produced for the campaign and the number sold during the campaign. (Attach additional pages if necessary)

18. Did your company enter into a contract or other written agreement with any charity concerning the campaign?

 Yes  No
If Yes, please attach copies.

19. Have you provided accountings or reports to any charity detailing the amounts due to the charity in connection with the campaign?

 Yes  No
If Yes, please attach copies.

For more information, please contact Jonathan Pompan at 202-344-4383 or at jlpompan@Venable.com.

Jonathan Pompan is Of Counsel at Venable LLP in the Washington, DC office.  He represents nonprofit and for-profit companies in regulated industries in a wide variety of areas including advertising and marketing law and financial services regulation compliance, as well as in connection with Federal Trade Commission, Consumer Financial Protection Bureau, and state investigations and law enforcement actions.

This article is not intended to provide legal advice or opinion and should not be relied on as such.  Legal advice can only be provided in response to a specific fact situation.