Do-Not-Mail Movement Lurks in State Legislatures

By Ira Teinowitz and Ken Wheaton

Published: March 12, 2007
WASHINGTON (AdAge.com) -- Katy barred the door -- just her latest exercise in exerting control over marketing messages.
Consumer advocates have gotten do-not-mail bills on the agendas of legislatures in more than a dozen states.
Consumer advocates have gotten do-not-mail bills on the agendas of legislatures in more than a dozen states.


Having clearly established her ability to bad-mouth your brand on her blog, TiVo your TV commercials, stop your phone calls and filter out your pop-ups, now -- with the help of the government -- she's trying to stop you getting access to her mailbox.

Do-not-mail bills
More than a dozen states are considering do-not-mail lists. If passed, residents from Hawaii to Colorado, Maryland to New York and Texas to Washington state will be able to sign up for a list and be free of "junk mail" forever. If there's a glimmer of hope for the purveyors of old-school direct mail, it's that none of the bills have made it beyond the hearing stage.

Not that the proposal will come as that big a shock to a marketing world that is slowly but surely accepting that consumers are hanging up no-trespassing signs at most points of media entry. They simply don't want marketing messages thrust at them -- no matter how clever or engaging or empowering those messages might be -- and, thanks to a mix of technology, government intervention and old-fashioned indifference, have plenty of ways to live lives that involve engagement with brands only on their terms.

Pop-ups, TV ad zapping
Consumers long ago killed the majority of pop-ups, and there's a growing body of evidence that there's little interest in banner ads except where they're very carefully targeted. A small percentage -- somewhere between 12.7% (Nielsen) and 15%, depending on the source -- are using DVRs, with IRI estimating that'll be around 38% by 2008. And, although recent studies have shown DVR users don't all skip commercials and actually watch more TV than non-DVR users, the point is that they can skip or ignore ads if they want to. (Some like to point out that they've always had an on-off switch.)

They've signed up in droves for first state and then federal do-not-call lists. At the last count, 139 million had said no to telemarketers. And now they're looking to keep marketing messages out of their mailboxes.

Forget court battles, marketing 2.0
So what are marketers to do? Court battles and appeals to free speech have proved to be temporary solutions at best when the public and politicians become determined to tackle a marketer (tobacco) or a method (you name it). Portraying yourself as victim doesn't convince consumers, especially not when you're a big, profit-making corporation. And before the marketing 2.0 crowd rushes to the rescue, consider this: Contextual ads can, and often will, be ignored; the mobile phone is considered by many a very personal thing, and mobile users are unlikely to take kindly to any messages they don't request. A do-not-text list seems entirely feasible today too.

Even today's most talked-about methods are no sure things. As Lori Schwartz, VP-director of Interpublic's Emerging Media Lab, said at the Ad Age Digital Marketing Conference, "Viral marketing is really overhyped. The word viral should go back to being a medical term." The answer, she said, is "all about community."

In short, marketers will have to open their own doors and figure out ways to lure customers in, said Pete Blackshaw, chief marketing officer of Nielsen BuzzMetrics, who adds it'll probably get worse before it gets better. "We've reached this perfect storm of consumer power and advertising intrusion. The inevitable outcome of marketers continuing their siesta of indifference or inaction is regulation, and I think the next election cycle -- coupled with a Democratic-controlled Congress -- is going to accelerate overtures for oversight.

'Opt-in messaging'
"We need to think about advertising in a different context, and well beyond just paid media. Listening to consumers via consumer affairs is an easier, more effective way of advertising to consumers. Inviting consumers to participate in an online community is a more accepted form of 'opt-in' messaging."

Mr. Blackshaw held up Intuit, maker of TurboTax and Quicken, and its 100,000-strong online community as an example. Such communities allow consumers to interact and reinforce their experiences with the brand. It also implies that the marketer is listening.

"We need to become far better listeners, and that's hardly a pitch for what I do and sell," he said. "Smart listening will guide better strategy and ultimately guide us to the ad models that are sustainable and win-win in the eyes of consumers."

"Listening is a very underrated marketing strategy," Communispace President-CEO Diane Hessan said at the Digital Marketing Conference, adding that marketers would be better served if "we would all just shut up and listen."

Sneak into homes
Beyond that, marketers will have to sneak into homes, relying on branded entertainment, sponsorships and, while they're still tolerated, methods such as in-game advertising.

Frito-Lay is among those getting creative to get into consumers' living rooms. The snack marketer recently signed on to embed its Lay's brand in the syndicated reality show "HomeTeam." Pete Sniderman, chief operating officer of "HomeTeam" distributor Litton Entertainment, said in a recent interview, "Lay's really sees that they need a defense to the world of TiVo and wants more ways to get their brand into content."

Meanwhile, the Direct Marketing Association and similar groups will continue to fight for their rights to market. Jerry Cerasale, senior VP of the DMA, is laying out reasons ranging from unconstitutionality to economic impacts on both the $900 billion direct-mail industry and the Postal Service.

"It would be hard on the economy," he said.

He added that one reason do-not-call lists passed court challenges was marketers had other options to reach consumers.

That such options are dwindling doesn't seem an argument that holds much sway over consumers.