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JoshuaSimmonsPaper1AnarchicConsumerProtection 7 - 12 Dec 2008 - Main.JoshS
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Anarchic Consumer Protection | | | Stealth Marketing and Editorial Integrity, 85 Tex. L. Rev. 83, 109-110 (2006). If the product placement is subtle enough, it will leave a false impression, but will not materially misrepresent any fact. Goodman also points out that stealth marketing is not meant to defraud, but rather to “bypass audience resistance to promotional messages by giving an erroneous impression of source.” | |
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< | Instead of using current laws, Congress could pass a new law that requires advertisers to disclose the source of their videos. Such a law would have the benefit of disclosure, and if the penalties were high enough, could act as a deterrence. Although some might argue that such a law would run up against the first amendment, the law I propose could mirror the requirements of § 311 of the Bipartisan Campaign Reform Act: "a statement that identifies the [sponsoring company] and states that the [company] has approved the communication." It wouldn't even have to be verbal, "writing at the end of the communication in a clearly readable manner with a reasonable degree of color contrast between the background and the printed statement, for a period of at least 4 seconds," will be perfectly sufficient to give the public sufficient notice. Since political speech is closer to the heart of the first amendment, any claim that the proposed advertising law violated the first amendment would also need to invalidate the "stand by your ad" provisions, which has not happened on its own. Furthermore, there is a difference in kind between a law requiring more information to be communicated (information that is purely factual and serves a substantial purpose) and one that attempts to stifle advertisers' free expression, and unlike political speech where anonymity is a virtue, there is no legitimate reason to advertise in secret. | >
> | Instead of using current laws, Congress could pass a new law that requires advertisers to disclose the source of their videos. Such a law would have the benefit of disclosure, and if the penalties were high enough, could act as a deterrence. Although some might argue that such a law would run up against the first amendment, the law I propose could mirror the requirements of §311 of the Bipartisan Campaign Reform Act: "a statement that identifies the [sponsoring company] and states that the [company] has approved the communication." It wouldn't even have to be verbal: "writing at the end of the communication in a clearly readable manner with a reasonable degree of color contrast between the background and the printed statement, for a period of at least 4 seconds," will be perfectly sufficient to give the public notice. Since political speech is closer to the heart of the first amendment, any claim that the proposed advertising law violated the first amendment would also need to invalidate the "stand by your ad" provisions, which have not yet been held unconstitutional. Furthermore, there is a difference in kind between a law requiring more information to be communicated (information that is purely factual and serves a substantial purpose) and one that attempts to stifle advertisers' free expression, and unlike political speech where anonymity is a virtue, there is no legitimate reason to advertise in secret. | | | Then again, stealth marketing is, well, stealthy. It may be difficult for regulators to tell the difference between a video created for fun and one created by advertisers. Additionally, only a limited number of minds would be able to work on the problem (likely one guy in a state attorney general’s office). Finally, given that none of the companies that pay for Congress’s political campaigns would be interested in a law inhibiting their marketing, it is unlikely that there would be sufficient political will to pass such a law. |
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| Revision 7 | r7 - 12 Dec 2008 - 17:32:02 - JoshS |
| Revision 6 | r6 - 11 Dec 2008 - 23:32:02 - JoshS |
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