Sean Silver
Sean is an Executive Vice President at Arrowhead, driving our strategic vision and cross-functional performance. With nearly two decades in the industry, his combined experience in regulatory compliance and marketing and promotions ensures both responsible strategy and operational excellence.
Navigating a fragmented regulatory landscape
Nobody wants to break the law, but you’d be surprised how easily it happens if brands aren’t up to speed on all the regulations surrounding promotions.
This year’s ANA Masters of Advertising Law Conference made it clear brands need to be on their toes, as privacy concerns continue to push more states to consider new rules designed to protect consumers’ information.
While it appears 2025 could end with no new comprehensive state laws on the books, nine states have offered amendments to existing laws. Layer that on top of an already complicated landscape of jurisdictions overseeing promotional offerings, and you can see how easy it would be for a brand to get tangled up in non-compliance without having the proper guidance.
States are becoming consumer watchdogs
With less emphasis at the federal level on consumer protections, states are stepping in. Connecticut is one state that completely overhauled its consumer privacy law through numerous amendments this year. Due to constant changes, brands should be working with experienced partners not just to navigate new rules at the state level, but also with an eye on building architecture that will allow them the flexibility to configure at the state level for each offering in the future.
Basic architectural considerations include rules that are clear and easily discoverable for consumers. Pay attention to accessibility features, such as Alternative Method of Entry (AMOE) for sweepstakes. If your main method of entry requires a purchase or some kind of payment, there must be a free method of entry as well. Burying it out of sight is not compliance.
States are taking a hard look at consumer data, how much can be collected and how it can be used. This is where rules vary state to state, and where your promotional offerings will need some tailoring. For example, Connecticut’s 2025 amendment to its privacy laws includes a provision granting consumers the right to know if their data is being provided to third parties.
The privacy of children is also being keenly watched at the state level. An amendment to Oregon’s Consumer Privacy Act prohibits the sale of location and personal data for people under the age of 16.
Fifty states, and fifty state legislatures mean your brand needs to understand all the nuances.
Increased focus on loyalty programs
Consumer data has always been a primary selling point for a well-crafted loyalty program. The public perception of data gathering as a giant combine sucking up everything in its path has given rise to rules that require an artisanal, hand-picked approach. No loyalty program should be a data-harvesting exercise. Understand which data you can gather, best practices for keeping data separate (marketing needs vs data for fulfillment or fraud detection) and have clear opt-out signals for consumers. Some states are fine-tuning cancellation rules and disclosures with auto-renewal very much coming under scrutiny.
One way to find out if you are on the right path – do a pre-launch “consumer journey read-through” with someone who is not involved in building the program. If they can’t explain the offer, the disclosures and how to quickly cancel, then you likely need to keep editing.
Special considerations for highly regulated categories
Arrowhead works with many clients in highly regulated categories. A primary one is adult beverages. A commonly overlooked requirement for promotional offers in this space is state-by-state approval. This goes beyond just following the rules. You need to follow the rules and then submit your offer to each state for approval.
For brands that truly value compliance, this “polling” requirement should be a non-negotiable with your promotions partner. Not doing so can be costly, which is why we have a dedicated Polling Department working with state regulators to secure promotion approvals for our clients. If you don’t have this capability in-house, you need to have a partner with experience and relationships in this area to ensure your offering doesn’t fall short of the law.
Change is constant
Brands work hard to stay ahead of consumer trends, technology and outside forces that influence shoppers’ day-to-day decisions. Keeping up with rules and regulations meant to protect those consumers is also a full-time job. The rise of the internet, ecommerce, and now artificial intelligence requires a keen focus on how governments are responding through the laws they enact.
Copy/paste isn’t an acceptable promotions strategy when your brand reputation is on the line. Education and investing in the expertise to guide your brand through the constant change in compliance is the only way to ensure you are always on the right side of the law.
