Advertising plays a huge role in today’s society with every business competing to get their message out to the public. Journalists and advertisers believe that advertising should be protected under the First Amendment, but the Supreme Court first denied this because advertising does not adhere to the core of free speech values but rather to the enhancement of a business through increased profits. Courts rule this to be commercial speech because of the paid aspect. Since this initial court ruling, commercial speech has moved under the protection of the First Amendment (in some instances), but it does not enjoy the same protection as political speech does.
The Supreme has elaborated on when commercial speech does in fact deserve First Amendment protection by creating a set test–Central Hudson. The test was created after the Central Hudson Gas and Electric Corporation sued the Public Service Commission of New York because the state of New York refused to let utility companies advertise during a time of an energy crisis. Central Hudson said that this violates their rights of free speech, and using the test, the Court deemed the ban of advertising in this situation unconstitutional. The test is composed of these four elements according to the text:
- Government may ban false and deceptive advertising and ads that promote illegal products or services
Once this standard is met, the ad is only constitutionally protected if:
2. Government establishes a substantial state interest in regulation
3. The regulation directly advances that interest
4. Regulation demonstrates a “reasonable fit” to state interest
With these regulations in place, advertising materials are often ruled to be constitutional under the First Amendment. However, advertising for controversial products–alcohol, cigarettes, etc.–tests the limits of these regulations. Agencies have been put in place to regulate how much a company can promote their controversial product especially in terms of protecting children. For example, the Camel tobacco company used a cartoon character of a camel to promote their products, and many citizens that the ads were directly marketed towards children. The Food and Drug Administration act sued and the Court ruled that the FDA did in fact authority here. As a result, all ads within the tobacco industry were banned from using cartoon characters and promoting on billboard/transit spaces so children were less likely to come into contact with future tobacco ads. On the other hand, alcohol companies have been granted the right to include the percent of alcohol in a specific drink and have ads within college newspapers because a ban on these would violate the First Amendment.
Another problem with advertising is the fact that some businesses will promote false or deceptive products across all advertisement platforms. As a result, the Federal Trade Commission (FTC) was put in place to protect consumers from such ads by ensuring that advertisers provide accurate information about their products. The FTC learns about these advertising problems mainly through consumer complaints or negative public debate. Most ads participate in “puffery” rather than absolute deception. Puffery is the exaggeration of a product in which a reasonable citizen would never believe the information.
The FTC works closely with advertisers to avoid problems before they get out of control by preventative and corrective measures. Preventative measures include-opinion letters, advisory opinions, and industry guides. An opinion letter is least formal action in which the FTC provides general techniques of effective, ethical advertising. The advisory opinion goes one step further and suggestions that the business adhere to the opinion given before things get extreme (taken to court). Industry guides provide an outline of how advertisers should follow policies within a category of a product or service. This can be taken one step further by issuing a trade regulation rule in which the FTC outlines an advertising statement for a particular trade. The last preventative measure is voluntary compliance. This is the last material provided to business by the FTC to advertisers before the FTC takes corrective measures to revise the businesses advertisements. Correct measures start with a consent order made by the FTC in which both parties sign an agreement that actions will be take to fix problematic advertising. Failure to sign will prompt the FTC to use a litigated order. AT this time, the court get involved with the problem and the business can be fined up to $10,000 per day for the false advertising. The FTC also has the right to order corrective advertising to require a business to issue a campaign that informs the publics of the misinformation. With the continual rise of internet purchasing, the rise of internet advertising is not far behind. The FTC also regulates the illegal advertising on the internet, and it working on a better way for consumers to block cookies while internet browsing.
Advertising regulations should not be taken lightly. It is very important for businesses and their advertisers to understand the regulations in place for their particular product or service. The worst thing for a business to do would be to not follow FTC regulations and then spend ungodly amounts of money to correct their problem.
Journalism & Law 