In 2005, when Anheuser-Busch, maker of Bud Light, demanded that TV networks pull ads of Miller’s “More Taste” campaign — which showed beer drinkers choosing Miller Lite over Bud Light in taste tests — Cole came to Miller’s defense.
Last year, when AT&T rival T-Mobile was marketing itself as having the nation’s largest 4G network, Cole and his team brought the matter before the National Advertising Division, the arm of the Better Business Bureau that hears advertising-related disputes between businesses. He dug up data showing AT&T’s network was bigger, and T-Mobile dropped the “America’s Largest 4G Network” tagline — though a T-Mobile spokesman said it was a “business decision” and not a result of a legal action.
Cole is one of two recent hires for the advertising and product risk management group at Crowell & Moring, one of Washington’s largest law firms. He joined from Manatt, Phelps & Phillips in December, arriving shortly after Cheri Falvey, former lead lawyer for the Consumer Product Safety Commission, the agency that regulates the sale and manufacturing of products that fall outside the jurisdiction of the Food and Drug Administration, the National Highway Traffic Safety Administration and the Bureau of Alcohol, Tobacco, Firearms and Explosives.
Their addition represents a push by Crowell & Moring to further integrate and elevate its advertising and product risk management work. The product risk management side traditionally handled lawsuits against companies over safety lapses in products, and federal regulations that mandate certain levels of chemicals in products such as sunscreen and building materials. But now businesses are asking for a legal approach that not only includes regulatory and litigation help, but advertising and marketing as well, firm leaders said.
Now the group advises on the entire life cycle of consumer products, from their creation to safety testing, advertising campaigns, product recalls and designing consumer tests to back up marketing claims — which is almost like a science, Cole said.
“If you want to say your product tastes better than someone else’s, you do a big taste test ... You have to think through lots of little details about how to make it fair,” he said.
“Do you taste beer from a bottle or pour it into a cup? Is it plastic or glass? What’s the right temperature? What kind of people are tasting it?” Cole added. “Do you balance it according to gender, or do you skew it more in one direction or another depending on what you think the demographics of beer drinkers is? Lots of decisions go into putting a test together.”
Falvey said part of the reason she joined Crowell was because the firm’s leaders understood that the science that must be conducted to back up marketing claims is the same science that federal regulators look at when evaluating the safety of products.
“If you’re an ice manufacturer and you say your bag of ice is pure and clean, you have to do testing to prove that and make sure the labeling meets [Federal Trade Commission] standards for being accurate and truthful,” she said. “That same science is what the FDA looks at to make sure it’s safe and not contaminated.”