Chapter 13 – Advertising
Legal guidelines and controls in advertising began in 1914 with the government’s creation of the Federal Trade Commission (FTC). The FTC had “authority to regulate advertising” and in 1938, the FTC passed the Lanthem Act which “defines unfair and deceptive advertising.” Since then, there has been a struggle to determine whether every advertising message being distributed should be allowed.
Creators of advertising messages believe freedom of speech should automatically grant them permission to tell their story and try to gain a larger following. Rules and regulations around freedom of speech in advertising have changed over time. The name of this law is the Commercial Speech Doctrine.
The commercial speech doctrine first was created to be like the freedom of speech amendment. This had to be done because advertising was not considered to be part of our constitutional freedom of speech. Before the commercial speech doctrine, public commercial speech was not allowed. A gentleman handing out flyers to advertise his submarine rides was punished for his action.
This rose questions about freedom of speech and revealed that the majority of people thought freedom of speech should mean freedom of commercial speech as well. The free flow of commercial information was born allowing advertising the same rights as other speech freedoms. The caveat for this law is that “some forms of commercial speech, including deceptive or misleading ads, may be regulated.”
The government is in place to protect the people of our country. To protect people, guidelines and allowances have to be put in place for promotion of addictive or harmful consumer products. There are fine lines that have to be drawn between free speech and negatively influencing those who are naive to products effects, trusting everything they are told.
Alcohol and tobacco advertising have tested and challenged freedom of speech boundaries, and now marijuana advertising is in dispute. As legalization of the drug sweeps across our country, “a task force urged the state legislature to prohibit all mass-market campaigns that have a high likelihood of reaching minors while allowing advertising in adult-oriented newspapers and magazines.” Regulations around marijuana are especially difficult because use of the product is still against federal law.
Another topic of contention is offensive advertising. There are no laws related to freedom of speech that regulate this. The Federal Communications Commission does hold the responsibility to regulate offensive messages be advertised, however, “the protection of commercial speech that attacks others is uncertain and varied.”
The Lanham act is related to offensive business advertising messages. Making a direct comparison of one company to another is a risky form of advertising. The Lanham Act, created in 1938, is a federal law that” regulates the trademark registration process but also contains a section permitting business competitors to sue one another for false advertising.” This law has become important to lawsuits over price or product comparisons.
In addition to laws around what messages can be created and advertised, there are also laws related to business contact to consumers through social media. The Federal Trade Commission decided that being bombarded by unwanted texts and emails is unfair, and therefore, a requirement for the recipient to opt-out is required when those types of messages are sent.
Allowable advertising is much different that freedom of speech. The rules have been carefully decided by our government. And interestingly, these laws have been changing over time. They are evolutionary and dependent on what the courts think is best for citizens of this country.
Journalism & Law 