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We recently hosted a small group of general and in-house counsel to join us for lunch to discuss the challenges they are facing in 2020.

Our guests were leaders from the FMCG sector, ranging from high profile emerging businesses to multinational corporates. For them, it was an opportunity to network and hear from other professionals in the sector; for us, it was an opportunity to listen and learn.

This article summarises some of the emerging themes from our conversation.  

Challenges Being Faced in 2020

Two common themes arose here. The need to:

  1. do more with less; and
  2. build a stronger relationship with the business.

In-house teams are focusing on being more efficient, and are looking at technology or alternative legal service providers for solutions. The counsel from the younger businesses are focused on putting processes and systems in place, while the larger organisations are considering or have already undertaken outsourcing marketing legal review work to third parties.

In-house counsel also want to identify what work is adding value to the business so they can focus on it, and develop a stronger rapport with relevant business stakeholders to better understand what they do.

From a regulatory perspective:

  • incorporating whistleblowing and modern slavery legislation into the business; and
  • increased ACCC scrutiny into misleading and deceptive conduct on labelling

were both discussed.

Legal’s Role in the Supply Chain

Education and empowerment were the main themes here. FMCG in-house counsel are working with procurement (in particular) to educate them on what they can and cannot do independently, in turn, empowering them to act without always needing legal input. This may include:

  • creating checklists and templates;
  • running training sessions;
  • training legal advocates (such as members of the procurement team with law degrees) within the business who can act as the first port of call.

There is a tendency for the business to want counsel to sign off on contracts without having reviewed the contract’s commercial elements. “We need to empower the business to make their own decisions. It shouldn’t be about: ‘legal is signing off on it, therefore it’s ok’. They need to take responsibility,” one GC said.

Counsel are pushing back on this attitude, training the business to review such commercial clauses as tax, insurance, revenue, etc, before seeking legal input. “You are contributing legal expertise, not assessing commercial value,” another legal counsel said. 

Setting firm turnaround times for legal review of commercial contracts was also a common theme, with one counsel having trained the business to not expect feedback in less than 48 hours. “You need to educate the business that we can’t do same-day turnaround,” they said.

Other attendees were impressed that a 48-hour turnaround was even achievable on an ongoing basis. 

The theme of empowerment continued here, with in-house counsel agreeing that it was best to train the marketing team to be independent where appropriate, and to get involved early in marketing campaigns to prevent issues from progressing down the line.

Managing Marketing Risk

However, there was collective sympathy from the FMCG legal counsel when some attendees revealed hearing the following from their marketing stakeholders:

  1. “If we’ve said it before, we can say it again”; and
  2. “If our competitor is making this claim, so can we”.

When it comes to ‘we’ve said it before’, some marketing claims are okay in certain contexts, one attendee explained. Nonetheless, they acknowledged it’s a very risky attitude and as a result, they are assessing all claims to see what can and cannot be said – leading to packaging and social media messaging being revisited.

Competitor claims are also tricky. “We don’t want to follow competitors to the lowest common denominator,” said an attendee. But what about stopping the competitor from gaining business through inappropriate marketing claims?

A range of options was put forward, including:

  • complaining to a regulator like the ACCC; 
  • having your CEO write to the competitor’s CEO about the claims, something one counsel said they had found very effective; and
  • focusing on your own brands instead of the competitors’.

LegalVision’s lawyers also revealed four lessons we had learned from clients about improving the relationship between legal and marketing, and asked attendees if they resonated. These lessons were:

  1. running workshops between legal and marketing to encourage dialogue and understanding;
  2. identifying pain points between the teams;
  3. implementing a dashboard to track how things are moving between the teams; and
  4. encouraging cross-over, such as holding a ‘legal hour’ once a week for the business to ask questions.

The lunch concluded with the FMCG counsel discussing how they built relationships with the marketing team, including:

  • having regular meetings with each business unit to discuss what is in the pipeline and to answer any questions;
  • having a member of the legal team dedicated to marketing work;
  • attending business WIPs and updates to build trust and understanding;
  • holding legal inductions for new team members.

Key Takeaways

While the legal counsel came from a wide range of businesses, there were some common themes:

  • needing to do more with less;
  • building a closer relationship with the business; and
  • educating and empowering the business so they can turn around supply contracts and marketing campaigns with less legal input;

LegalVision regularly holds networking lunches with GCs and in-house counsel; if you would like to learn more, please contact LegalVision’s Enterprise Solutions team.


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