Marketing Math Blog

Oct 31
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Interesting. But How Will It Affect My Fees?

By Agency Compensation, Agency Fee & Time Management No Comments

contract signingIn theory the fees that agencies charge their clients are based upon a combination of direct labor costs, an overhead allocation, and a desired level of profit.

Agency operating expense, which is the combination of direct labor and overhead costs can vary dramatically from one organization and one market to the next. While there is no standard for overhead rates, which are often expressed as a multiple of direct labor costs, advertisers and agencies largely agree on the components of each of these categories. Direct labor consists of payroll and related payroll expense. Overhead covers indirect labor, space and facilities, some categories of corporate expense and professional fees.

Since most advertisers, according to the Association of National Advertisers, utilize fee-based compensation schema and many of those are direct-labor based engagements advertisers engage in dialog on each of these components to gain an accurate view of agency costs and to establish mutually agreed upon guidelines. Once aligned, the parties will negotiate full-time equivalent standards, the treatment of temporary employees and freelancers, overhead factors (typically expressed as a multiple of direct labor costs) and profit margins.

Over the course of the last three years there have been several interesting developments that directly impact an agency’s operating costs. These include, but are not limited to the following:

  1. Increase in the number of agency employees working remotely.
  2. Higher percentage of freelance personnel that compose an agency’s workforce.
  3. Consolidation of agency brands, offices, and shared services.
  4. Emerging technologies and their impact on the number of labor hours required to deliver a scope of work.

These trends have certainly resulted in a higher level of operating efficiency for agencies. The question is: “How have these efficiencies impacted the fees agencies charge to advertisers? In our contract compliance practice, where we review agency staffing plans and fees, the answer appears to be fees have adjusted little if at all. Consider the following marketplace dynamics considering these trends.

Post-COVID 19 many agencies have not mandated a return to the office for their employees, certainly not on a full-time basis. Further, as part of an effort to attract and retain talent, many organizations have implemented a hybrid model that allows employees to live and work remotely, spending fewer days (if any) at the office. In addition, agencies have embraced the concept of flexible workforces, comprised of an increased mix of freelancers to supplement their full-time employee base. As such, agencies, have been able to reduce their real estate footprint, develop location-based salary guidelines to reflect the variances in talent cost by market for remote workers and reduce the cost of onboarding, training, and compensating employees by using freelance personnel. Actions such as these can lower both direct-labor and overhead costs.

Many of the agency holding companies have begun to consolidate agency brands, eliminating duplicative resources, and sharing back-office personnel and platforms to reduce operating costs and drive efficiencies. Recent news for example has profiled WPP’s reorganization of its media operations (GroupM, Mediacom, Wavemaker) and its plans to merge VMLY&R and Wunderman Thompson into the “world’s largest creative agency.”

AI will most definitely expedite an ad agency’s ability to complete tasks, requiring fewer employees and hours. While there are advantages to be gained by both advertisers and agencies, many in the industry have raised concerns about AI’s threat to the direct labor-based billing system or more specifically, the agencies that employ this mode of compensation. According to Forrester Research “Some 33,000 ad agency jobs, or roughly 7.5% of the current total agency workforce, will be lost to automation by 2030,” At a minimum, agencies may be more open to considering outcome or performance-based compensation models to counter AI’s potential impact in reducing billable hours.

All successful client/ agency partnerships are predicated on mutual respect, a shared perspective, and a fair agency remuneration program. That said, advertisers should be cognizant of the forces that are underway to reshape how their agency partners organize and the resulting impact on their operational costs when negotiating fees.

Oct 03
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3 Key Reports Every Marketer Should Review

By Client Agency Relationship Management, Marketing Accountability, Marketing Budgets No Comments

Keys to SuccessWhen it comes to budget management no one likes surprises, least of all marketers.

The process around initiating advertising creative/ production jobs and media campaigns is typically sound. Plans are reviewed and approved, statements of work prepared and executed, purchase orders issued, agency invoicing is generated, and work commences.

Unfortunately, the process for tracking jobs once work has begun is less well defined in most organizations. This can pose challenges in an industry that relies primarily on estimated billing and has become accustomed to elongated job / campaign closing timelines that often run 120+ days following the cessation of activity.

To address this situation, it is incumbent upon marketers and their agency partners to closely and regularly monitor spend levels and pacing vis-à-vis approved budgets. In our experience, there are three key reports that every marketer should ask their agency partners to generate on a monthly basis for review and discussion between stakeholders within each organization.

Job Cost Detail Report – For each job or campaign initiated, require the agency to summarize progress from both a fee and expense perspective relative to estimated costs. These reports should identify approved funds by category and project-to-date progress compared to the actual time and cost incurred.

Fee Burn Report – Tracking agency time-of-staff investment and fees earned at both a retainer and project level provides a clear indicator of resource utilization. Understanding agency staff utilization relative to the percent completion rate for an annual retainer or individual job is critical if marketers and their agency partners are to effectively manage performance in this area. Importantly, if hours are running higher than anticipated, both parties can make the necessary adjustments to mitigate the potential for time or fee overages. Similarly, if projects are proceeding smoothly and the potential exists for coming in under budget, marketers can either redirect agency time to other projects or identify potential credits that could be due back upon job closing. As well, this type of tracking often becomes the basis for estimating future work, especially if job types are reoccurring.

Unbilled Media Report – It is imperative for advertisers to track the cost difference between media funds approved and prepaid for relative to the amounts billed by the media seller and paid by the agency for media placement activity. Unbilled media occurs across media types but can be most acute in digital and can run in excess of 12% of total media spend. Most client/ agency agreements contain language regarding this area and guidelines around the timing of media cost reconciliations, the return of unspent media funds to the advertiser and the indemnification of the agency as it relates to latent media seller invoicing. 

While generating and reviewing these reports is helpful, scheduling recurring monthly meetings with each agency partner helps expedite job/ campaign closings and reconciliations and significantly mitigates the risk of budget overruns or unused funds not being returned to the advertiser in a timely manner. In the words of American architect David Rockwell:

“Every project is an opportunity to learn, to figure out problems and challenges, to invent and reinvent.”

Sep 06
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4A’s Position on Payment Terms

By Marketing No Comments

4A'sAdvertisers should never expect an agency to cover media costs or other third-party expenses. Payment terms should ensure that an advertisers funds are on-hand at the agency to satisfy all third-party vendor payment obligations in a timely manner. Further, there are two aspects to the payment terms discussion:

  1. When the advertiser pays the agency.
  2. When the agency is to pay third-party vendors.

These payment terms should be discussed, agreed to, and incorporated into the client-agency agreement … Read More

Sep 05
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Relationship Risk: When Actual Practice Deviates from Contract Terms

By Client Agency Relationship Management, Contract Compliance Auditing, Marketing Agency Network No Comments

RiskContract: A formal, legally binding agreement between parties defining what each party will do and the terms that will govern the relationship.

Virtually all advertisers have formal contracts in place with their advertising agency partners.  Most of these organizations have reviewed industry association contract templates and engaged outside legal counsel to review and customize agreement terms and conditions to satisfy their expectations.

All well and good, and while having a solid agreement in place is an important safeguard in any business relationship it doesn’t eliminate risk. As relationships evolve and personnel on both sides turn over, knowledge of the terms of the contract and their intent often wane.

This dynamic can result in agency relationship managers with little knowledge of the binding agreement that adopt practices which deviate from contractual guidelines, opening the door for potential legal and financial risks.

The good news is that these risks can be easily addressed by adopting the following three processes:

Regularly Review & Update Client-Agency Agreements:  Schedule annual contract review sessions for each agency contract.  These sessions, involving authorized representatives from marketing, procurement, and legal should be scheduled 2 to 3 months prior to the start of the new fiscal year. Reviews should include discussions surrounding client-agency relationship changes, regulatory, and or industry related issues that may pose legal, financial, or operational risks. Proposed contract language enhancements, addendums, and annual Statements of Work should be shared with each agency partner at a time and in a manner that allows for dialog and the execution of the updated agreements prior to the end of the current term.

Periodically Audit Agency Contract Compliance: It is an industry standard that advertising agencies must be able to support their billings to clients. This includes fees, out-of-pocket costs, and third-party expenses. Fortunately, most client-agency agreements incorporate “Record Retention and Audit” language that further clarify an advertiser’s rights in this area. However, few advertisers act upon these audit rights to review agency compliance to contract terms and financial management performance. Conducted at two-to-three-year intervals, with each agency partners, these audits can provide valuable feedback to both parties and help to ensure alignment between contractual intent and relationship management practices.

Implement a Cross-Functional Agency Oversight Model: An organization’s agency network is a corporate resource consisting of multiple marketing services agencies that provide valued support to the profitable growth and advancement of a company’s brands. Developing and nurturing these strategic relationships requires a commitment to involve representatives from across the client and agency organization. Securing the involvement of client-side procurement, finance, and internal audit personnel along with agency financial representatives in addition to marketing and account management personnel brings diverse perspectives that contribute to meaningful ongoing dialog around relationship management and performance dynamics. Through a combination of monthly budget and performance discussions and quarterly business reviews both parties and their resulting relationship will benefit from such meaningful interactions.

Experience suggests that such steps require less time and money to advance client-agency partnerships than is necessary to repair deteriorating relationships or to replace a marketing services agency that has fallen out of favor. As Hugh McKay, the Australian scientist once said: “Nothing is perfect. Life is messy. Relationships are complex. Outcomes are uncertain. People are irrational.” Aligning relationship management practices with contractual terms can address these realities.

Jul 04
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Advertisers: Are You Insulated from Supplier Bankruptcies?

By advertising legal, Letter of Agreement Best Practices No Comments

RisksThe current advertising ecosystem is fraught with risks as the number of intermediaries servicing advertisers and their agencies continues to grow. The recent Chapter 11 bankruptcy filing of demand side platform MediaMath serves as a subtle reminder of these risks. At the time of its bankruptcy filing, MediaMath owed several hundred of its creditors between $100 million and $500 million.

To protect their investment from the impacts of this type of event, U.S. advertisers should consider implementing the following two contractual safeguards:

  1. Incorporate a “Sequential Liability” clause into agency/ intermediary agreements.
  2. Require agency/ intermediary partners to secure sequential liability protection in agreements with all third-party vendors.

Beginning in the 19th century, the advertising industry operated on the principal of “Sole Liability.” Where agencies acted as principals, buying media and reselling that to advertisers for a 15% commission. Advertisers in turn would pay their agencies for the authorized/ ordered media. Agencies were solely liable for payments to the media… regardless of whether a client paid them or not.

This approach began to evolve in the 1970’s following the high-profile bankruptcy filing of ad agency Lennen & Newell, which closed their doors owing a few million to media sellers. What precipitated the change? CBS, which had been unpaid by Lennen & Newell sued one of the agency’s clients to recover their funds, even though the client had paid the agency for the media ordered. While CBS ultimately lost the lawsuit, it set the stage for robust dialog among industry stakeholders about “who” was ultimately liable for payments to the media.

Enter the concept of “Sequential Liability,” which is endorsed by both the 4A’s and the ANA. In short, the agency is liable for payment to the media if and only if they have been paid by the advertiser. In turn, if the advertiser has paid the agency, they have no further obligation to the media seller.

Thus, for advertisers, establishing sequential liability as it relates to third-party vendor payments protects them from the failure of any agency or intermediary when it comes to paying their vendors, for which that intermediary has already been paid by the advertiser. In short, advertisers are only obligated to pay once.

However, advertisers must also require their agencies and intermediaries to provide notification of any third-party vendor that will not recognize the principal of sequential liability when transacting business on its behalf. By way of caution, media sellers (for instance) often incorporate “No Sequential Liability” or “Joint and Several Liability” clauses into their agreements or purchase orders with agencies which contradicts or disallows this important advertiser protection.

While properly screening agencies and intermediaries in terms of their financial health can dramatically decrease an advertiser’s risks, these contract clauses will offer an additional layer of protection.

 

May 01
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Does Commerce Media Work? How Should Brands Fund This Investment?

By Marketing No Comments

mediaGood article in Digiday on what is a unique challenge for clients as they assess overall marketing budget allocation.

In the ever swinging pendulum of power between retailers and brands, large retail organizations, with retail networks can certainly leverage their position to secure brand investments in this area.

The question for brands is at what expense? Can they reduce their trade promotion investment to fund such initiatives? Will they shift dollars from brand building to support their RMN investment? And, in the end, does an investment in RMNs correlate with the potential to drive retail sales? Or does increased spend in this area risk diminishing brand strength in the long-term? … Read the Article Here

Apr 26
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Who Should Be Responsible for Agency Performance Management?

By Advertisers, Advertising Agencies, Marketing Accountability, Supply Chain Optimization No Comments

Assurance CollageAgency performance management is an essential element in building an effective, highly productive network of marketing partners that includes an advertiser’s media, creative, experiential, shopper marketing and PR firms.

While important, agency performance management is sometimes an afterthought for many organizations. Structured properly, a formal performance monitoring and evaluation program can yield meaningful and actionable results on a range of critical topics:

  • Contract Compliance & Financial Management
  • Audience Delivery & Measurement Validation
  • Brand Safety Guideline Adherence
  • Regulatory Compliance Verification
  • Billing & Fee Reconciliations
  • Scope of Work Completion Assessments
  • Agency Compensation & Staffing Reviews
  • QBRs & Annual Performance Evaluations

With an advertiser’s agency partners managing tens if not hundreds of millions of dollars on their behalf, too few organizations have implemented the appropriate controls and processes in this area. Experience suggests that without effective verification controls, advertisers rarely have a clear understanding of how well their advertising investment is being managed.

To achieve this end, it is essential that an organization assign responsibility and allocate a budget to conduct proper oversight of the performance of its agency partners. Some organizations are fortunate to have marketing operations teams or experienced marketing procurement peers and or engage external specialists to consult, audit and improve financial effectiveness in this area. However, this type of structure or process is not employed as often as they should be given the material nature of marketing spend. As a result, most advertisers simply leave the management of their agency network to the marketing team.

Why could this be an issue?

First, marketing’s primary responsibility is to build brands and drive revenue, which is how most marketing departments staff and develop their internal teams. With finite resources, adding marketing personnel with the requisite experience or skills to handle financial, compliance, regulatory, and operational oversight may be a luxury. Given that the average tenure of a CMO is 40 months, the lowest rate in a decade (source: Spencer Stuart, December 2021) it may not be reasonable to expect senior marketers to care too much about monitoring below the line agency performance details or to conduct financial compliance reviews. As an aside, CEO’s have an average tenure of more than two times that of CMOs… 85 months.

Second, despite the level of budget allocated to marketing, conforming to corporate governance standards in this area has not become a priority in many organizations. Without the financial leadership team applying appropriate pressure and installing a strict requirement to improve transparency and accountability regarding a firm’s marketing spend, agency performance vouching simply does not receive the necessary attention. Often procurement, finance or internal audit have an interest in engaging outside support to undertake independent reviews of agency performance or to verify compliance in these areas but, they typically do not have the budget. They in turn must secure the buy-in and funding from their peers in marketing, which heretofore has not been required to comply with such initiatives. In fact, often, marketing will often block or defer any such attempt to review agency performance or compliance with the organization’s desired controls citing concerns regarding timing or available funds or signaling that everything is under control.

One solution to the current quagmire is for organizations to adopt the mindset that a company’s ad agency network is a corporate resource, deserving of cross-functional support. As such, budgets should be established to formalize strategic supplier performance reviews of those agency partners and the appropriate responsibility for monitoring financial, legal, regulatory, and operational performance should be established. Such an approach would allow marketing to remain focused on brand building and demand generation, while engaging qualified personnel (i.e., procurement, finance, internal audit, external specialists) to help establish the desired controls and to monitor agency compliance with those guidelines and processes. This would yield millions of dollars annually per company in the form of reduced ad budget waste due to fraud and process inefficiencies, while also yielding future savings.

In the end, all stakeholders both corporate and agency will benefit from a formalized performance oversight program that aligns all parties’ interests… optimize the client’s return on marketing investment. As Benigno Aquino III once said: “With proper governance, life will improve for all.”

Apr 02
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Is Your Influencer Marketing Program Compliant?

By Advertisers, Advertising Regulation, Government Regulation, Influencer Marketing No Comments

compliance

“Let’s make it simple: Government control means uniformity, regulation, fees, inspection, and yes, compliance.” ~ Tom Graves

In 2022 advertisers spent over $16 billion globally on influencer marketing, an 18.8% increase over the prior year. Fueling the growth of this sector is the purported return on investment, which claims an average of $5.20 for every $1.00 invested (source: Influencer Marketing Hub).

Influencer marketing is when advertisers engage influencers for endorsements or product placements in an online setting. As a result of their perceived authority, knowledge, celebrity status and social influence, these individuals can impact consumer perceptions of a brand and affect purchase decisions.

However, it is just not marketers who are interested in this emerging sector of social media marketing. Regulatory organizations, such as the U.S. Federal Trade Commission (FTC), have started to scrutinize practices in this area to protect consumers from deceptive advertising practices. The FTC is regulating endorsements and influencer marketing under section 5 of the FTC Act. Notably, advertisers, as well as intermediaries (e.g., marketing agencies) and individual influencers, can be liable for violations of this Section.

The FTC’s position is that influencer marketing is subject to the same rules that apply to any other type of advertising. Influencer endorsements, therefore, require “clear and conspicuous” disclosure when there is a “material connection” between the influencer and the brand. This means that if marketers offer anything of value to an influencer, they should assume that there is a material connection with that influencer, which necessitates disclosure of the relationship. Of note, while brands and influencers share responsibility for adequate endorsement disclosures, thus far the FTC has focused its enforcement efforts on the advertisers, not the influencers.

On October 13, 2021, the FTC warned 700 major consumer product companies and national advertisers that any future violations of the FTC’s endorsement and testimonial guidance could result in civil fines of up to $43,792 per incident.This action served as a follow-up to a lawsuit filed by the FTC against Teami for false or unsubstantiated claims, including endorsements from social media influencers about the efficacy of its products and a failure to disclose the material connection between Teami and its influencers who provided endorsements. In addition, the FTC alleged that Teami failed to adequately disclose that its influencers were paid to endorse its products, and the company and the FTC entered into a $15.2 million settlement.

Thus, marketers must learn and understand the potential legal pitfalls associated with their influencer marketing programs such as lack of data security, fraudulent influencers, fake followers, copyright infringement, problematic content, and the failure to disclose the relationship between a brand and its influencers. To assess the regulatory compliance of their influencer marketing programs, marketers may want to consider an audit of their current approach such as:

  • Have you drafted a formal set of influencer marketing guidelines and shared them with all relevant stakeholders (i.e., influencers and agency partners)?
  • Do you routinely verify influencer reach and engagement rates?
  • Have you validated whether your influencers are publishing content disclosure notices (“material connection disclosure”) to publicly disclose they are being paid to provide content related to your brand(s)?
  • Does your organization utilize an influencer marketing agency? Or contract directly with influencers? In either case, do your agreements with those agencies and influencers contain language requiring the influencer to comply with all FTC rules and guidelines, and mandate that posts disclose the connection between the brand and influencer?
  • Does your agreement language include indemnification for violations of all other laws governing deceptive or false advertising?
  • Do you categorize your influencers as employees or independent contractors? Have you clarified this relationship in the agreement, including payment terms and language stipulating that the brand cannot control the manner or means by which the influencers’ services are rendered?

In conclusion, while influencer marketing can be effective, it is critical for marketers to take the proper actions to avoid potential legal risks in this emerging sector of social media marketing.

 

Mar 06
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Successful Marketing Spend Management: It Takes a Village

By Advertisers, Advertising Agencies, Featured, Government Regulation, Marketing, Marketing Agency Network No Comments

 

client-agency relationship success“Half the money I spend on advertising is wasted; the trouble is, I don’t know which half.”

John Wanamaker, American Merchant

More than one hundred years have passed since Mr. Wanamaker shared this perspective on his firm’s advertising investment and his words are as true today as they were when he uttered them in 1919. One could rightly argue that the accelerating rate of change, the dizzying array of message delivery choices, advances in technology, the growth in ad fraud, and an increase in regulatory oversight have further complicated the challenge of optimizing marketing and advertising spend.

Perhaps the biggest challenge posed to marketers is the evolution from full-service ad agency partners to the use of multiple specialist service providers engaged by most organizations. Long gone are the days when a single agency worked in tandem with an organization’s marketing team to develop strategy, craft content and deliver messaging to target audiences. Today, an organization’s agency network can include over a dozen specialist firms ranging from creative and media agencies to PR, graphic design, shopper marketing, social media and experiential marketing firms.

The question to be asked is: “Have advertisers’ agency networks grown in size and complexity to the point where managing them efficiently cannot reasonably be achieved by today’s marketing teams?” A key consideration for all advertisers is determining how they want their marketing teams to invest their time and effort. Building brands, driving revenue, capturing leads, optimizing customer lifetime value? Or vetting third-party invoices, assessing agency contract compliance, testing consumer data privacy regulation compliance, evaluating emerging technologies, and measuring the efficacy of audience delivery across a myriad of media alternatives?

Few organizations have marketing staffs large enough, with the diverse skill sets and breadth of experience to perform the tasks necessary to truly optimize agency efforts across the network. While some advertisers are fortunate to have engaged, proficient procurement and or marketing operations teams working hand in hand with marketing to address each of these areas, others may be falling short in this area.

In addition to dealing with the question posed by Mr. Wanamaker regarding “which half” of one’s budget may not be effective, the level of financial risk associated with increased regulatory activity poses additional challenges that can negatively impact brand reputations and company balance sheets. For example, as it relates to regulatory challenges, advertisers have already been fined tens of millions of dollars for failure to comply with consumer data privacy guidelines issued by the GDPR. Further, in October of 2021 the Federal Trade Commission (FTC) issued letters to over 700 advertisers of its intent to enforce and monitor regulations governing the activities of social media influencers, with a per occurrence civil penalties of over $43,000. This following a lawsuit brought by the FTC against tea and skincare marketer Teami, which alleged among other things that its social media influencers failed to disclose that they were paid to endorse Teami’s products. The suit was settled for $15 million.

Optimizing marketing spend and mitigating regulatory risk can both be achieved with the proper level of oversight. Monitoring and periodically testing agency processes, controls, reporting, and performance can go a long way to the attainment of this goal. If internal resources are limited, engaging independent consultants with the necessary subject matter expertise can yield tremendous value in the form of future savings, cost recovery and regulatory risk avoidance.

Given today’s environment and the strains being put on marketing budgets, fine tuning one’s agency network and enhancing the performance of each individual service provider should be a strong consideration for all advertisers.

Jan 27
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Consumer Privacy Protection Regulators are Ready. Are You?

By Advertising Regulation, Consumer Data Privacy Protection No Comments

time for actionData regulation isn’t new, but many marketers are at risk because of incomplete and or inadequate processes to comply with consumer privacy regulations. This is despite much publicized notifications and warnings related to regulatory enforcement and the levying of fines for non-compliant activity.

Marketers have been tasked with collecting, utilizing and sharing consumer data more responsibly. This means providing consumers with the ability to understand whether data is being collected from them, what data is being captured and the purpose for which that data is being used. Further, marketers must provide consumers with the ability to request that their personal data be deleted and made unavailable for specific purposes.

The challenge has been that there is no omnibus global or federal law that covers all geographies, business sectors or data types. As a result, most marketers are focused on the two broadest-reaching, most comprehensive laws:

  1. General Data Protection Regulation (GDPR) – Adopted by the European Union which went into effect May 25, 2018.
  2. California Consumer Privacy Act (CCPA) – Went into effect January 1, 2020. Coverage expanded with the passage of the California Privacy Rights Act (CPRA), which went into effect January 1. 2023.

Regulation covers a myriad of personal information types including personal identifiers, commercial information, internet or other electronic network activity and other data such as geolocation, biometric, audio, visual, thermal, olfactory or similar information, professional or employment-related and educational information.

Failure to comply can be costly. CCPA infractions will cost marketers $2,500 per violation and $7,500 if the violation was deemed to be intentional. So, for marketers with consumer databases containing tens of millions or hundreds of millions of names, the risks are real. Consider the fines levied by the European Union for GDPR violations:

Top 5 GDPR Fines (Source: Enzuzo)

  1. Amazon – $780 million
  2. WhatsApp – $247 million
  3. Google (Ireland) – $99 million
  4. Google – $66 million
  5. Facebook $66 million

Note: Sephora was fined $1.2 million in November of 2022 for CCPA violations. This was the first CCPA settlement. Risks accelerate as the July 1, 2023 “Enforcement” data nears for the CPRA.

While many marketers have updated “Privacy” and “Data Collection” notices on owned websites, this is nothing more than table stakes in this privacy focused era. Marketers must create platforms, systems and processes that provide a full view of their data, where it’s stored, what it’s used for, where it was gathered from and whether the proper permission was secured. Understanding “Consumer Rights” under these laws is a good starting point for developing such protocols:

Consumer Rights Under the CCPA

  • Know that personal data is being collected on them
  • Know what personal data is being collected
  • Know if their data is being shared or sold and to whom
  • Ability to opt-out of their data being sold
  • Personal access to their data
  • Option to request that businesses delete their personal data
  • Protection against discrimination for exercising their privacy rights
  • Extra protections from data collection if they are minors

It should be noted that the regulations apply to all marketers, whether they’re focused on Business to Consumer (B2C) or Business to Business (B2B). At present, the CCPA broadly defines “consumer” to include “individuals acting as representatives of their employers.” While there are B2B exemptions that cover certain verbal or written communications with a consumer, the amendment (AB 1355) is highly nuanced and worthy of marketers securing legal guidance.

Beyond the notification of consumers and the provisioning of viewability and opt-out mechanisms, businesses will be tasked with protecting personal data in a safe and secure manner addressing threats to the confidentiality, integrity and access to the personal information in their databases. In addition, marketers will want to review and likely update agreements between their organizations and third-party data processors. These updates should include language requiring such suppliers to maintain data inventories, use due diligence questionnaires, provide records of processing actions, require the syncing of consumer response processes, allow for onsite assessments and audits, and require the mapping of any data elements shared with any party… including data that was sold.

While marketers await regulatory standardization within select markets, near-term it behooves marketers to understand that privacy requirements vary by geography and by sector and that a best practice would be to structure compliance programs to satisfy the strictest legislation, which should cast the broadest net when it comes to complying with other guidelines.

This article was written for informational purposes and not meant as legal guidance.