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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quote p. 517
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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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ex. Campbell's soup and marbles
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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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Guides (Title
16)
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also, consent agreements, litigated orders,
substantiation, corrective advertising etc. (p. 535)
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