Advertising
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Originally, commercial speech (advertising)
wasn't under the protection of the First Amendment |
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Thus, no Constitutional history. |
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Today, commercial speech does come under
the First Amendment but with less than full protection |
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Justice Blackmun (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.) (1976) |
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| "Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price. So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of public interest that those decisions in the aggregate be intelligent and well informed. To this end, the free flow of commercial information is indispensible." | |
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| Commercial Speech Doctrine | |
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Government may regulate advertising that
is false or misleading, and advertising for unlawful goods and services |
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| Government may regulate truthful advertising for legal goods and services if: | |
| 1. there is a substantial state interest to justify regulation | |
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protecting the public from deception
is an oft cited interest |
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| 2. there is evidence (some) that the regulation directly advances this interest | |
| 3. there is a "reasonable fit" between the state interest and the government regulation | |
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notice that this doesn't have to be the
"least restrictive" |
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ex. kid's toy ads that show accessories
that don't come with the toy |
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regulation requiring a statement "accessories
sold separately" |
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ex. drug ads listing possible side effects |
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| Refusal of advertising | |
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Mass media can refuse ads |
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exception for broadcasters and political
ads (ch. 16) |
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| Regulation can occur at the federal, state,local or self-regulatory level | |
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ex. cigarette advertising vs. hard liquor
advertising |
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| The primary federal agency - Federal Trade Commission | |
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Responsible for regulating unfair, misleading
and deceptive acts/practices in commerce |
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| "false or deceptive advertising" | |
| 1. There must be a representation, omission, or practice that is LIKELY to mislead | |
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can be stated or implied, telling only
part of the story etc. |
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if a claim is made, be prepared to back
it up with evidence! |
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| 2. The act or practice must be considered from the perspective of a consumer who is acting reasonably | |
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from the consumer group targeted |
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subjective claims (puffery) are less
scrutinized |
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cheaper, more frequently purchased products
(ads) are less scrutinized |
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| 3. The representation, omission, or practice must be material | |
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one that affects a consumer's choice
of product |
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can also look at the Food and Drug Administration
(FDA) |
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| How does the FTC stop false advertising? | |
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also, consent agreements, litigated orders,
substantiation, corrective advertising etc. |
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