Advertising speech. Advertising is recognized by the
Advertising is constantly bombarded by criticism. It is accused of encouraging materialism and consumption, of stereotyping, of causing us to purchase items for which we have no need, of taking advantage of children, of manipulating our behavior, using sex to sell, and generally contributing to the downfall of our social system. Critics of advertising abound.
Barely a week goes by without some advertisement or campaign, or the ad industry, being the focal point of some controversy. There even are web sites dedicated to criticizing various aspects of advertising. To illustrate some of the many attacks on advertising, I have compiled a list of relatively recent examples that have appeared in newspapers and magazines. This is far from being an exhaustive list. It is intended merely to provide you with some ideas about how the public-at-large perceives advertising, and to give you a sense of the many legal and ethical problems inherent in the advertising profession.Ethics Law and ethics are not coterminous.
All the issues discussed on this page have ethical dimensions, but not all of them implicate legal realities. The law is confined by limitations on government authority, principally through the Constitution, while ethics bear no such limitations. Ethics, therefore, should be subject to a higher standard of expectation than law.
See:bibliography of advertising ethicsEthics & Self-Regulation linksMorality and Ethics quotes.FirstAmendment The United States Constitution, through the First Amendment, places constraints on government repression of speech. Advertising is recognized by the courts as a form of “commercial speech.” Commercial speech has been defined by the Court as speech “which does no more than propose a commercial transaction.” Although the courts never have recognized it as being as valuable as some other forms of speech, commercial speech is protected by the First Amendment. This means that many of the criticisms aimed at advertising are not regulable by government.
However, the Supreme Court, in Central Hudson Gas & Electric v. Public Service Commission, declared that commercial speech can be regulated if: It is misleading or concerns an illegal product,OR ifThere is a substantial government interest, ANDThe regulation directly advances thatgovernment interest, ANDThe regulation is narrowly tailored to thatinterest. If a regulation can pass that test, it will be held constitutional.
You can read some of the advertising-related Supreme Court decisions here. In addition, we have provided a bibliography of articles and books about commercial speech, to help you learn more about this topic, along with some quotes about advertising and free speech.Deception The Federal Trade Commission (FTC) is the primary regulator of deceptive advertising in the U.S. It was created by the FTC Act in 1914. Section 5 of the Act gave the Commission the authority to regulate “unfair methods of competition.” The Act was later changed, by the Wheeler-Lea Amendment, to give the FTC authority over both “unfair methods of competition” and “unfair or deceptive acts or practices.
” It is through this latter power that the FTC regulates deceptive advertising. Commissioners of the FTC act like judges, hearing cases when marketers are charged with violating the FTC Act. The Commission also publishes advertising guidelines for marketers, which are not law but merely advisory, and adopts trade regulation rules, which are law. Basic Principles According to its 1993 Policy Statement on Deception, the FTC considers a marketing effort to be deceptive if: (1) there is a representation, omission, act or practice, that (2) is likely to mislead consumers acting reasonably under the circumstances, and (3) that representation, omission, or practice is “material.” The term “material” refers to the fact that some deceptive claims are trivial, and that the FTC will only regulate deceptions that are important to consumers, i.e., those that affect consumers’ “choice of, or conduct regarding, a product.
” Our bibliography on deceptive advertising and our bibliography on “materiality” can point you to numerous articles that discuss the intricacies of this definition. Evidence To prove that an ad claim is, in fact, deceptive, the FTC is not generally concerned with what the claim says, but what it conveys to consumers. If that conveyed message differs from the reality of the product attribute being advertised, the claim is considered deceptive.
This requires the Commission to look at two types of evidence: (1) evidence concerning what message is conveyed to consumers, and (2) evidence concerning the product attribute’s true qualities. The former requires looking into the heads of consumers. The FTC considers surveys the best form of evidence to discover what message is conveyed by an ad, though sometimes the Commission relies on other evidence. The question of how best to unearth the inner thoughts of consumers has been an issue of significant research efforts and theoretical discussion.
See our bibliography about evidence used to discover the conveyed message. The second form of evidence can require a variety of different methods of assessing a product’s attributes. If, for example, the claim refers to the fuel mileage of an automobile, laboratory testing of the vehicle’s fuel efficiency would normally be required. However, the FTC requires that advertisers conduct such testing prior to making the ad claim. If a claim is made without evidence in hand that the product will perform as advertised, the claim will be considered deceptive. This is known as “substantiation,” and the Commission’s requirements are detailed in the 1984 FTC Substantiation Policy. See, also, the bibliography on substantiation.
Remedies Most cases started by the FTC never require the Commission to make a final decision about the deceptiveness of an advertiser’s claim. Those cases end, instead, in a “consent order,” whereby the advertiser simply agrees to do what the FTC staff asks. No hearing is required. In those cases that do end in a final FTC decision, if the claim is found deceptive, the advertiser will face one of three possible remedies: (1) a Cease and Desist Order, which requires the advertiser to stop making the claim, (2) an Affirmative Disclosure Order, which forces the advertiser to provide consumers with more information, or (3) Corrective Advertising, which is a form of affirmative disclosure that is intended to correct lingering deception that results from a long history of deceiving the consumer.
See our bibliography on Corrective Advertising. Puffery Historically, claims that were “mere exaggerations” or “hyperbole” were considered to be puffery, and therefore not deceptive. Terms like “the best” or “the greatest” were sales talk, and the FTC would not regulate them.
After all, everyone knows that “Wonder Bread” is not really a wonder, and “The Greatest Show on Earth” is not what everyone considers the greatest. Puffery, therefore, was a form of opinion statement, and considered unregulable. Some observers have expressed concern that the “puffery defense” was a loophole through which many deceptive claims fell. The Commission has been criticized for allowing deceptive claims to slip through under the guise of puffery.
On the other hand, the FTC has defined puffery as claims that (1) reasonable people do not believe to be true product qualities, and (2) are incapable of being proved either true or false. Consequently, if deception is the creation of a “false belief” about the product in the mind of a consumer, claims that fall into the FTC definition of puffery cannot be deceptive. By definition, such claims can be neither false nor can they create belief. This means that if deceptive claims have slipped through regulation as puffs, it is because the FTC has failed to follow its own definition. See our bibliography on puffery and puffery quotes.
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