Manipulative marketing and the first amendment

Georgetown Law Journal

Volumn 103, Issue 3, 2015, Pages 497-546

  Berman, Micah L ^a  

^a OHIO STATE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84927596718     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (138)

1. See, e.g., Paul Horwitz, Free Speech as Risk Analysis: Heuristics, Biases, and Institutions in the First Amendment, 76 TEMP. L. REV. 1, 49 (2003) ("[C]ommercial speech jurisprudence has moved steadily toward a speech-protective approach that has erased the distinction between commercial speech and other categories of speech.")
2. Rodney A. Smolla, Afterword, Free the Fortune 500! The Debate over Corporate Speech and the First Amendment, 54 CASE W. R ES. L. REV. 1277, 1292 (2004) ("While nominally the Supreme Court continues to apply the intermediate scrutiny standard of Central Hudson, examination of the actual case decisions demonstrates that the trajectory of modern commercial speech law has been an accelerating rise of protection for advertising.")
3. Nat Stern & Mark Joseph Stern, Advancing an Adaptive Standard of Strict Scrutiny for Content-Based Commercial Speech Regulation, 47 U. RICH. L. REV. 1171, 1171 (2013) (discussing the "gradual elevation of commercial speech from 'its subordinate position in the scale of First Amendment values' to its status as a form of expression that routinely enjoys robust protection from the Court" (footnote omitted)
4. (quoting Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978))).
5. Seth E. Mermin & Samantha K. Graff, The First Amendment and Public Health, At Odds, 39 AM. J.L. & MED. 298, 299 n.11 (2013).
6. See, e.g., Darrel C. Menthe, The Marketplace Metaphor and Commercial Speech Doctrine: Or How I Learned to Stop Worrying About and Love Citizens United, 38 HASTINGS CONST. L.Q. 131, 133 (2010) (arguing that "Citizens United will necessarily lead to the abandonment of commercial speech doctrine as formulated in Central Hudson")
7. David C. Vladeck, Lessons from a Story Untold: Nike v. Kasky Reconsidered, 54 CASE W. R ES. L. REV. 1049, 1052 (2004) ("Since 44 Liquormart, the Court has made it clear that it would be willing to revisit the [commercial speech] doctrine should the appropriate case come along.").
8. Rubin v. Coors Brewing Co., 514 U.S. 476, 497 (1995) (Stevens, J., concurring in the judgment).
9. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503 (1996) (plurality opinion).
10. TAMARA R. PIETY, BRANDISHING THE FIRST AMENDMENT: COMMERCIAL EXPRESSION IN AMERICA 117 (2012).
11. Yoav Hammer, Expressions Which Preclude Rational Processing: The Case for Regulating Non-Informational Advertisements, 27 WHITTIER L. REV. 435, 437 (2005) (writing that in modern advertising "[t]he messages come in mostly visual and non verbal form, and viewers are hardly aware of the fact that messages have been conveyed").
12. See Valentine v. Chrestensen, 316 U.S. 52, 54 (1942) ("We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.").
13. See Alan B. Morrison, How We Got the Commercial Speech Doctrine: An Originalist's Recollections, 54 CASE W. R ES. L. REV. 1189, 1198 (2004) ("Justice Blackmun's opinion⋯ bought our argument based on the interests of those who would receive the information and relied on the evidence that we had amassed about how elimination of this restriction would help consumers.").
14. RONALD J. KROTOSZYNSKI, JR., THE FIRST AMENDMENT IN CROSS-CULTURAL PERSPECTIVE: A COMPARATIVE LEGALANALYSIS OF THE FREEDOM OF SPEECH 14 (2006).
15. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 449 (1978). In another case decided the same day, the Court distinguished the "purely commercial offers of legal assistance" at issue in Ohralik from litigation used "as a vehicle for⋯ political expression." In re Primus, 436 U.S. 412, 422, 431 (1978). The latter category of cases was entitled to broader protection under the First Amendment's free association clause. See id. at 434, 437-38
16. Friedman v. Rogers, 440 U.S. 1, 8, 16 (1979).
17. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557 (1980).
18. See Robert Post, The Constitutional Status of Commercial Speech, 48 UCLA L. REV. 1, 5 (2000) ("The fundamental flaw in contemporary commercial speech doctrine, however, is that its primary doctrinal standard, the so-called Central Hudson test, is so vague and abstract as to fail entirely to express any specific constitutional values." (footnote omitted))
19. cf. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 528 (1996) (Thomas, J., concurring in part and concurring in the judgment) (criticizing the Central Hudson test for asking courts to simultaneously "apply contradictory premises-that informed adults are the best judges of their own interests, and that they are not").
20. Id. at 562 (quoting Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 770 (1976)).
21. Allen Rostron, Pragmatism, Paternalism, and the Constitutional Protection of Commercial Speech, 37 VT. L. REV. 527, 531 (2013).
22. Wendy E. Parmet & Jason A. Smith, Free Speech and Public Health: A Population-Based Approach to the First Amendment, 39 LOY. L.A. L. REV. 363, 416 (2006) (noting that "advertising does far more than provide rational consumers with useful information about legitimate products").
23. See, e.g., Linda J. Demaine, Seeing Is Deceiving: The Tacit Deregulation of Deceptive Advertising, 54 ARIZ. L. REV. 719, 751-52 (2012) (discussing the "superior persuasive power of visual imagery over verbal assertions," and noting that "advertisers convey deceptive messages in visual imagery while relegating the offsetting disclosures to verbiage")
24. Rebecca Tushnet, Trademark Law as Commercial Speech Regulation, 58 S.C. L. REV. 737, 742-43 (2007) ("Even disclaimers that are, on their face, clear and unambiguous rarely affect consumer perceptions in the overall context of advertising or packaging."). To be fair, much of this research postdates the Central Hudson decision in 1980. Nonetheless, even in 1980, it was clear that a considerable amount of advertising-both on television and in print-was not primarily informational. See infra text accompanying note 81.
25. Cent. Hudson, 447 U.S. at 577 (Blackmun, J., concurring in the judgment) (quoting Linmark Assocs., Inc. v. Twp. of Willingboro, 431 U.S. 85, 97 (1977)).
26. See, e.g., Rubin v. Coors Brewing Co., 514 U.S. 476, 485 (1995) (recognizing that "the Government⋯ has a significant interest in protecting the health, safety, and welfare of its citizens").
27. See Sarah C. Haan, The "Persuasion Route" of the Law: Advertising and Legal Persuasion, 100 COLUM. L. REV. 1281, 1284-85 (2000) (discussing how the Supreme Court's commercial speech cases reflect the "rational-consumer theory that was popularized by the Chicago School of Economics in the 1960s and 1970s").
28. Id. at 503 (plurality opinion) (citation omitted); see also id. at 510 ("[I]n keeping with our⋯ holdings [other than Posadas], we conclude that a state legislature does not have the broad discretion to suppress truthful, nonmisleading information for paternalistic purposes that the Posadas majority was willing to tolerate. As we explained in [Virginia Pharmacy], '[i]t is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us.'" (alteration in original) (quoting Va. Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976))).
29. Concern for these health risks was borne out in 2012, when a large-scale compounding center in Massachusetts caused an outbreak of fungal meningitis. See generally Kevin Outterson, Regulating Compounding Pharmacies After NECC, 367 NEW ENG. J. MED. 1969 (2012).
30. Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2659 (2011) (striking down a Vermont law limiting the sale and use of individual pharmacy records that identified the prescribing physician).
31. See Tamara R. Piety, "A Necessary Cost of Freedom"? The Incoherence of Sorrell v. IMS, 64 ALA. L. REV. 1, 4 (2012) (suggesting that Sorrell "essentially render[ed] the Central Hudson test irrelevant" and that "henceforth, in practice, if not formally, commercial speech will be treated as fully protected").
32. I do not mean to suggest that this is the only possible reading of Sorrell, only that it is a plausible one based on the text of the opinion. Cf. Jennifer L. Pomeranz, No Need to Break New Ground: A Response to the Supreme Court's Threat to Overhaul the Commercial Speech Doctrine, 45 LOY. L.A. L. REV. 389 (2012) (arguing that Sorrell does not necessarily signify a dramatic break from prior case law and that the Court should continue to apply the Central Hudson test in commercial speech cases).
33. Troublingly, Sorrell also broke new ground by citing as precedent numerous cases that came from outside of the commercial speech context, thereby muddling the distinction between the regulation of commercial and noncommercial speech. See, e.g., Sorrell, 131 S. Ct. at 2663-65 (citing R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)) (incorporating the concept of "viewpoint discrimination" from the noncommercial context).
34. Id. at 2664 (emphasis added) (citation omitted) (quoting Bates v. State Bar of Ariz., 433 U.S. 350, 364 (1977)).
35. Id. at 2671-72 ("[T]he government's legitimate interest in protecting consumers from 'commercial harms' explains 'why commercial speech can be subject to greater governmental regulation than noncommercial speech.'" (quoting City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 426 (1993))).
36. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 563 (1980).
37. There has been limited case law applying this prong of the Central Hudson test. In a few cases, the Supreme Court has struck down restrictions on types of commercial speech that were alleged to be manipulative. In all of these cases, however, the Court was convinced that the speech at issue was not actually manipulative. To the contrary, it felt that the restricted speech provided information that was valuable to consumers. See, e.g., Ibanez v. Fla. Dep't of Bus. & Prof'l Regulation, 512 U.S. 136 (1994) (invalidating rule prohibiting an attorney from referring to his or her certification as a Certified Public Accountant or Certified Financial Planner); Peel v. Att'y Registration & Disciplinary Comm'n of Ill., 496 U.S. 91 (1990) (striking bar rule prohibiting attorney from advertising certification as a trial specialist); Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985) (finding that attorney had First Amendment right to use factual illustration of Dalkon Shield intrauterine device in ad to solicit representation of those who had used the device).
38. In the context of compelled speech cases, the Supreme Court has repeatedly reinforced this point, upholding compelled disclosures when deemed necessary to protect the fairness of the bargaining process, but applying heightened scrutiny when used for other purposes. See, e.g., Zauderer, 471 U.S. at 651 (upholding requirement for a "factual and uncontroversial" disclosure about the cost of legal services and writing that "an advertiser's rights are adequately protected as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers"); Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 252-53 (2010) (upholding disclosure requirements for "debt relief agenc[ies]" because they were "reasonably related to the [Government's] interest in preventing deception of consumers" (quoting Zauderer, 471 U.S. at 651) (alteration in original))
39. Pac. Gas & Elec. Co. v. Pub. Utilities Comm'n of Cal., 475 U.S. 1, 20-21 (1986) (applying heightened scrutiny and striking down requirement for utility to provide space to opposing views in its newsletter).
40. But see Am. Meat Inst. v. U.S. Dep't of Agric., 760 F.3d 18, 22-23 (D.C. Cir. 2014) (en banc) (holding that the less rigorous Zauderer standard is not limited "to cases in which the government points to an interest in correcting deception," but instead applies more broadly to other circumstances in which the government's interest in requiring a warning or disclaimer is substantial).
41. See, e.g., Walraven v. N.C. Bd. of Chiropractic Examiners, 273 F. App'x 220, 222-23 (4th Cir. 2008) (upholding limits on solicitation by chiropractors within ninety days following an accident)
42. Nat'l Funeral Servs., Inc. v. Rockefeller, 870 F.2d 136, 138 (4th Cir. 1989) (applying Central Hudson and upholding ban on solicitation for pre-need funeral contracts in nursing homes and hospitals)
43. Bergman v. District of Columbia, 986 A.2d 1208, 1211 (D.C. 2010) (sustaining limits on post-accident solicitation by attorneys).
44. Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 765 (1976) (emphasis added).
45. Jon D. Hanson & Douglas A. Kysar, Taking Behavioralism Seriously: Some Evidence of Market Manipulation, 112 HARV. L. REV. 1420, 1471 (1999).
46. Katie Connolly, Six Ads That Changed the Way You Think, BBC NEWS (Jan. 3, 2011, 4:44 PM), http://www.bbc.co.uk/news/world-us-canada-11963364. The Marlboro Man campaign was launched in 1955. Id. Another incredibly successful example of lifestyle advertising was (and remains) Nike's shoe advertising. These ads, including Nike's famous "Just Do It" campaign, typically include no information whatsoever about Nike's shoes. As one advertising expert put it, "Nike's great insight was [to] forget the shoe, own the athlete." Id.
47. see also Les Binet & Peter Field, Empirical Generalizations About Advertising Campaign Success, 49 J. ADVERTISING RES. 130, 131 (2009) ("The more emotions dominate over rational messaging, the bigger the business effects. The most effective advertisements of all are those with little or no rational content.").
48. Stephen Morea, IBISWORLD, IBISWORLD INDUSTRY REPORT 54191: MARKET RESEARCH IN THE US 4 (2014), available at http://ibisworld.com/industry/default.aspx?indid=1442.
49. See Douglas L. Fugate, Neuromarketing: A Layman's Look at Neuroscience and Its Potential Application to Marketing Practice, 24 J. CONSUMER MARKETING 385, 385-86 (2007).
50. Marisa E. Main, Simply Irresistible: Neuromarketing and the Commercial Speech Doctrine, 50 DUQ. L. REV. 605, 621 (2012).
51. For an example of a neuromarketing firm, see NEURO-INSIGHT, http://www.neuro-insight.com (last visited Jan. 16, 2015).
52. The CEO of Neuro-Insight, Pranav Yadav, was recently named to Forbes magazine's "30 Under 30" list. Neuro-Insight CEO Pranav Yadav on the Annual Forbes '30 Under 30' List, NEUROGADGET (Jan. 9, 2014), http://neurogadget.com/2014/01/09/neuro-insight-ceo-pranav-yadav-annual-forbes-list-30-30/9279.
53. The company uses patented technology "to track second by second changes in brain activity, allowing them to deliver insights into how a piece of design or advertising is affecting people at both a rational and an emotional level." Id.; see also NICHOLAS FREUDENBERG, LETHAL BUT LEGAL: CORPORATIONS, CONSUMPTION, AND PROTECTING PUBLIC HEALTH 13 (2014) (discussing neuromarketing firm NeuroFocus, which has developed "the world's first portable, wireless electroencephalogram (EEG) scanner" and uses it to "chart[] consumer reactions to the commercials, products, and brands of its clients").
54. See David J. Arkush, Situating Emotion: A Critical Realist View of Emotion and Nonconscious Cognitive Processes for Law and Legal Theory, 2008 BYU L. REV. 1275, 1297
55. see also RICHARD H. THALER & CASS R. SUNSTEIN, NUDGE: IMPROVING DECISIONS ABOUT HEALTH, WEALTH, AND HAPPINESS 19-21 (2008) (referring to the two systems as the "Reflective System" and the "Automatic System," and explaining that "[o]ne way to think about all this is that the Automatic System is your gut reaction and the Reflective System is your conscious thought").
56. DANIEL KAHNEMAN, THINKING, FAST AND SLOW 20-21 (2011).
57. See Arkush, supra note 94, at 1298 ("Although researchers originally thought nonconscious cognition was limited to simple mental processes, they now believe that it dominates our lives. Nonconscious behavioral processes are so ubiquitous, robust, and effective that some are left wondering what purpose conscious reasoning serves."); see also GERALD ZALTMAN, HOW CUSTOMERS THINK: ESSENTIAL INSIGHTS INTO THE MIND OF THE MARKET 40 (2003) ("According to most estimates, about 95 percent of thought, emotion and learning occur in the unconscious mind-that is, without our awareness.").
58. See KENT GREENFIELD, THE MYTH OF CHOICE 50-51 (2011).
59. Id. at 622 n.102; see also GIOVANNI VECCHIATO ET AL., NEUROELECTRICAL BRAIN IMAGING TOOLS FOR THE STUDY OF THE EFFICACY OF TV ADVERTISING STIMULI AND THEIR APPLICATION TO NEUROMARKETING 101-08 (2013) (discussing how neuromarketing research could be used to evaluate the emotional impact of different frames of a television commercial and revise the ad in order to maximize persuasiveness).
60. Chingching Chang, How Individuals Develop Brand Evaluations in Different Contexts-The Relative Impacts of Affect, Self-Relevant Thoughts, and Product-Attribute Thoughts, 32 ADVANCES CONSUMER RES. 106, 106 (2005).
61. Jochim Hansen & Michaela Wänke, Liking What's Familiar: The Importance of Unconscious Familiarity in the Mere-Exposure Effect, 27 SOC. COGNITION 161, 162 (2009). Hansen and Wänke tested their theory that the mere-exposure effect would be stronger when subjects did not consciously recall exposure. They distracted subjects while showing them fictitiously named pharmaceutical products. Even though the subjects, when later tested, could not recall the products they had seen, they displayed more positive attitudes toward the previously viewed pharmaceuticals when compared to a group that had seen the products without distraction and a control group that had not seen the products. Hansen & Wänke, supra, at 166-72; see also KAHNEMAN, supra note 95, at 67 (noting that the mere-exposure effect "occurs even when the repeated words or pictures are shown so quickly that the observers never become aware of having seen them").
62. Tamara R. Piety, "Merchants of Discontent": An Exploration of the Psychology of Advertising, Addiction, and the Implications for Commercial Speech, 25 SEATTLE U. L. REV. 377, 410 (2001) (internal quotation marks omitted)
63. (quoting ROBERT B. SETTLE & PAMELA L. ALRECK, WHY THEY BUY: AMERICAN CONSUMERS INSIDE AND OUT 106 (1986)).
64. See, e.g., United States v. Benson, 561 F.3d 718, 725-26 (7th Cir. 2009) (finding that promotional materials suggesting income taxes could be legally evaded was "false advertising, which may be banned consistent with the First Amendment")
65. Am. Acad. of Pain Mgmt. v. Joseph, 353 F.3d 1099, 1108 (9th Cir. 2004) (finding that state statute prohibiting physicians from advertising themselves as "board certified" when they were not did not violate the First Amendment, because such advertising would be misleading)
66. Castrol Inc. v. Pennzoil Co., 987 F.2d 939, 949 (3d Cir. 1993) (finding that claims regarding the superiority of Pennzoil products were "literally false" and therefore not protected by the First Amendment).
67. See Daniel Hays Lowenstein, "Too Much Puff": Persuasion, Paternalism, and Commercial Speech, 56 U. CIN. L. REV. 1205, 1232 (1988) ("Informational speech passes the Central Hudson threshold if it is truthful, but is blocked from constitutional protection if it is false or misleading. The Court has never acknowledged that this standard is inapplicable to the large percentage of commercial speech that is neither true nor false.").
68. There are few cases on point, but the few courts to consider the issue have held that the dissemination of subliminal messages is not protected by the First Amendment. See, e.g., Waller v. Osbourne, 763 F. Supp. 1144, 1148 (M.D. Ga. 1991) ("The court⋯ is convinced that the presence of a subliminal message, whose surreptitious nature makes it more akin to false and misleading commercial speech and other forms of speech extremely limited in their social value, would relegate the music containing such to a class worthy of little, if any, [F]irst [A]mendment constitutional protection.")
69. Vance v. Judas Priest, Nos. 86-5844, 86-3939, 1990 WL 130920, at ∗25 (Nev. Dist. Ct. Aug. 24, 1990) ("Since subliminal communication does not contribute to dialogue, truth, the free market of ideas, democracy or personal autonomy, it is not really 'speech.' Even in its most basic form, the use of speech presumes that views will be exchanged or that information will be conveyed and understood. However, subliminal messages are not intended to convey information to be consciously understood, they are intended to surreptitiously influence the thought processes of an individual, and ultimately, his behavior.").
70. Aradhna Krishna, An Integrative Review of Sensory Marketing: Engaging the Senses to Affect Perception, Judgment and Behavior, 22 J. CONSUMER PSYCHOL. 332, 333 (2012) (emphasis omitted).
71. See Bertil Hultén, Sensory Marketing: The Multi-Sensory Brand-Experience Concept, 23 EUR. BUS. REV. 256, 268 (2011) (discussing how the retailer Whole Foods uses free samples as part of a "multi-sensory brand-experience" for consumers).
72. See Chelsea Bush, Is 'Smellvertising' Sabotaging Your Diet?, U.S. NEWS & WORLD REP. (Oct. 3, 2012, 1:46 PM), http://health.usnews.com/health-news/blogs/eat-run/2012/10/03/is-smellvertising-sabotaging-your-diet.
73. MICHAEL R. SOLOMON, THE TRUTH ABOUT WHAT CONSUMERS WANT 11 (2009).
74. MARTIN LINDSTROM, BUY·OLOGY: TRUTH AND LIES ABOUT WHY WE BUY 147 (2008) (quoting Georgia State University marketing professor Pam Scholder Ellen).
75. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 305 (1984) (internal quotation marks omitted)
76. (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974)).
77. More abstract, symbolic expression (such as "painting[s] of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll") is also protected, but it seems similarly unlikely that smell-related advertising would fall within this category of protected expression. Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 569 (1995).
78. See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 569 (2001) (assuming, but not deciding, that tobacco companies have some cognizable First Amendment interest in the manner in which their products are displayed).
79. Note that although artistic productions are entitled to a higher level of First Amendment protection, the product placements within them would still be considered commercial speech. See Matthew Savare, Note, Where Madison Avenue Meets Hollywood and Vine: The Business, Legal, and Creative Ramifications of Product Placement, 11 UCLA ENT. L. REV. 331, 370-75 (2004).
80. This is similar to ads withIn newspapers, which are regulated under the commercial speech standard, not under the stricter scrutiny that applies to restrictions on editorial content. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 504-14 (1996) (plurality opinion) (applying Central Hudson's intermediate scrutiny to law that restricted price-related advertising for liquor in newspapers)
81. Educ. Media Co. at Va. Tech, Inc. v. Swecker, 602 F.3d 583, 590-91 (4th Cir. 2010) (upholding regulation restricting advertisements for alcohol in college newspapers after utilizing commercial speech standard).
82. Ellen P. Goodman, Stealth Marketing and Editorial Integrity, 85 TEX. L. REV. 83, 93 (2006).
83. Savare, supra note 139, at 334-35 ("Many agencies are using terms such as 'product integration' in lieu of 'product placement' to connote a more exacting, subtle, and persuasive approach to marketing a good. Product Integrators defines 'product integration' as the 'seamless weaving of a manufactured product into the storyline of an entertainment production.'" (footnotes omitted)). It should be noted that the government has also paid television shows to incorporate particular themes in their programming, which-although raising distinct legal issues-is also a troubling and potentially manipulative practice. See generally Ariel Berschadsky, White House Anti-Drug Policy: Statutory and Constitutional Implications, 19 CARDOZO ARTS & ENT. L.J. 183 (2001) (discussing the White House's payments to television programs for broadcasting anti-drug programming).
84. John A. McCarty & Tina M. Lowrey, Product Integration: Current Practices and New Directions, in THE PSYCHOLOGY OF ENTERTAINMENT MEDIA: BLURRING THE LINES BETWEEN ENTERTAINMENT AND PERSUASION 17, 22 (L. J. Shrum ed., 2d ed. 2012).
85. Angela J. Campbell, Restricting the Marketing of Junk Food to Children by Product Placement and Character Selling, 39 LOY. L.A. L. Rev. 447, 483 (2006) (alteration in original)
86. (quoting research in Susan Auty & Charlie Lewis, Exploring Children's Choice: The Reminder Effect of Product Placement, 21 PSYCHOL. & MARKETING 697, 710 (2004))
87. see also Eva van Reijmersdal et al., A New Branch of Advertising: Reviewing Factors That Influence Reactions to Product Placement, 49 J. ADVERTISING RES. 429, 439-40 (2009) (reviewing literature on product placement and concluding that product placement influences viewer preferences even when the viewers do not remember having seen the product).
88. See generally Cristel Antonia Russell, Investigating the Effectiveness of Product Placement in Television Shows: The Role of Modality and Plot Connection Congruence on Brand Memory and Attitude, 29 J. CONSUMER RES. 306, 313-14 (2002).
89. Id. For other studies reaching similar results, see, for example, Sharmistha Law & Kathryn A. Braun, I'll Have What She's Having: Gauging the Impact of Product Placements on Viewers, 17 PSYCHOL. & MARKETING 1059, 1070 (2000) (testing the effect of product placement in a television sitcom and concluding that "[t]he seen-only products were least recalled but most influential on choice, indicating that the facilitative effects of placements might be most influential if they are not consciously accessed")
90. Moonhee Yang & David R. Roskos-Ewoldsen, The Effectiveness of Brand Placements in the Movies: Levels of Placements, Explicit and Implicit Memory, and Brand-Choice Behavior, 57 J. COMM. 469, 483 (2007) (finding that college-age subjects who viewed a product in a movie clip were more likely to select that product as a gift, even without any explicit memory of seeing the product).
91. The product placement of Reese's Pieces in E.T. is one of the most iconic and successful product placements of all time. Sales of Reese's Pieces increased by 65% within a month of the movie's release. Laurie A. Babin & Sheri Thompson Carder, Advertising via the Box Office: Is Product Placement Effective?, 3 J. PROMOTION MGMT. 31, 32 (1996).
92. Tobacco companies were, as with other advertising techniques, at the forefront of developing product placement-even going so far as to as place cigarettes in child-focused movies such as Superman (1978) and The Muppet Movie (1979). In the Superman movies, Lois Lane (who does not smoke in the comic book) puffs away on Marlboros, and Superman "battles his enemies amidst towering Marlboro billboards and ubiquitous Marlboro delivery trucks." Robert Adler, Here's Smoking at You, Kid: Has Tobacco Product Placement in the Movies Really Stopped?, 60 MONT. L. REV. 243, 244 (1999).
93. In the contract between Philip Morris and the studio producing Superman II, the studio agreed to avoid "any reference in the edited footage of the whole film that might reasonably be construed as detrimental to the Marlboro brand name." Contract Between Dovemead Limited and Philip Morris Europe, S.A. (Oct. 18, 1979), http://legacy.library.ucsf.edu/tid/cxz55e00/pdf.
94. Although the tobacco industry no longer pays for product placement, it may still be giving away free products and effects for use in movies and television. See Matthew S. Fuchs, Comment, Big Tobacco and Hollywood: Kicking the Habit of Product Placement and On-Screen Smoking, 8 J. HEALTH CARE L. & POL'Y 343, 348-49 (2005).
95. E.J. Schultz, The Only Beer in TNT and TBS Shows Now Comes from MillerCoors, ADVERTISING AGE (Mar. 20, 2013), http://adage.com/article/media/millercoors-strikes-product-placement-pact-tnt-tbs/240451/.
96. U.S. DEP'T OF HEALTH & HUMAN SERVS., THE HEALTH CONSEQUENCES OF SMOKING-50 YEARS OF PROGRESS: A REPORT OF THE SURGEON GENERAL 775 (2014) (describing "a large body of epidemiologic, behavioral, and experimental data" supporting the conclusion that "there is a causal relationship between depictions of smoking in movies and initiation of smoking among young people"); see also id. at 813 (reporting that "those who get the most exposure to onscreen smoking are about twice as likely to begin smoking as those who get the least exposure").
97. Jon D. Hanson & Douglas A. Kysar, Taking Behavioralism Seriously: The Problem of Market Manipulation, 74 N.Y.U. L. REV. 630, 662 (1999).
98. Satyendra Singh, Impact of Color on Marketing, 44 MGMT. DECISION 783, 783 (2006).
99. See TERRACHOICE, THE SINS OF GREENWASHING: HOME AND FAMILY EDITION 6 (2010), available at http://sinsofgreenwashing.org/index35c6.pdf (finding that 95% products labeled as "green" included claims that were either misleading or unsubstantiated).
100. Joon Yong Seo, The Role of Color in Environmental Messages and Claims: Green Can Be Both Beneficial and Misleading 66 (Aug. 2010) (unpublished Ph.D. dissertation, University of Utah), http://content.lib.utah.edu/utils/getfile/collection/etd2/id/230/filename/1830.pdf.
101. United States v. Philip Morris USA, Inc., 449 F. Supp. 2d. 1,560 (D.D.C. 2006).
102. U.S. DEP'T OF HEALTH & HUMAN SERVS., PREVENTING TOBACCO USE AMONG YOUTH AND YOUNG ADULTS: A REPORT OF THE SURGEON GENERAL 599-600 (2012).
103. M. Wakefield et al., The Cigarette Pack as Image: New Evidence from Tobacco Industry Documents, 11 TOBACCO CONTROL 73, 76 (2002).
104. David Hammond & Carla Parkinson, The Impact of Cigarette Package Design on Perceptions of Risk, 31 J. PUB. HEALTH 345, 348 (2009).
105. David Hammond et al., Cigarette Pack Design and Perceptions of Risk Among UK Adults and Youth, 19 EUR. J. PUB. HEALTH 631, 635 (2009).
106. See CRAWFORD MOODIE ET AL., A BRIEF REVIEW OF PLAIN PACKAGING RESEARCH FOR TOBACCO PRODUCTS (2009).
107. This is one reason that Australia has now mandated "plain packaging" for tobacco products that prohibits color variation and allows only the product's name in standardized font (in addition to a health warning). Demonstrating the power of product branding, smokers in Australia have complained that cigarettes sold in plain packaging taste worse than branded cigarettes, and they report that all cigarette brands now taste the same. Long-Term Smokers Find Plain-Packaged Cigarettes Taste Worse, GUARDIAN (July 14, 2014, 11:14 PM), http://www.theguardian.com/society/2014/jul/15/smokers-find-plain-packaged-cigarettes-taste-worse.
108. Patrick Hartmann & Vanessa Apaolaza Ibáñez, Green Value Added, 24 MARKETING INTELLIGENCE & PLANNING 673, 676 (2006) (discussing evidence that people buy "green" products largely because such purchases make people feel better about themselves).
109. Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 548 (6th Cir. 2012), cert. denied, 133 S. Ct. 1996 (2013).
110. Zahr Said, Embedded Advertising and the Venture Consumer, 89 N.C. L. REV. 99, 158 (2010).
111. Angela Y. Lee, The Mere Exposure Effect: Is It a Mere Case of Misattribution?, 21 ADVANCES CONSUMER RES. 270, 274 (1994) ("[T]he mere exposure effect cannot be undone by knowledge of prior exposure."). In addition, disclaimers are of course an ineffective way of informing children who cannot understand them.
112. See Keith A. Gorgos, Straightforward Information Sold Separately: Why Current Regulation Fails to Adequately Protect Children from Deceptive and Unfair Advertising, 14 J. TECH. L. & POL'Y 107, 131 (2009).
113. Sheree Josephson & Michael E. Holmes, Clutter or Content? How On-Screen Enhancements Affect How TV Viewers Scan and What They Learn, 2006 PROC. ASS'N FOR COMPUTING MACHINERY SYMP. ON EYE TRACKING RES. & APPLICATIONS 155, 161 (finding that a crawling headlines aided recall only when they were congruent with the program's content, and otherwise diminished recall).
114. Thompson v. W. States Med. Ctr., 535 U.S. 357, 375 (2002) (internal quotation marks omitted)
115. (quoting 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503 (1996)).
116. Ignoring this dynamic, the D.C. Circuit Court of Appeals recently struck down the FDA's proposed graphic warnings for cigarette packages and advertisements. These warnings could be seen as Congress's attempt to "fight fire with fire," that is, to respond to the tobacco industry's own noninformational, lifestyle advertising with more visually and emotionally powerful counter-messaging. The circuit court ruled that because the proposed warnings were "not 'purely' factual" and were instead "primarily intended to evoke an emotional response," they were subject to heightened scrutiny and were invalid. R.J. Reynolds Tobacco Co. v. Food & Drug Admin., 696 F.3d 1205, 1216-17 (D.C. Cir. 2012).
117. This may explain why anti-tobacco ads are effective at keeping adolescents from smoking only when they are not also exposed to pro-tobacco advertising. When adolescents are exposed to both anti-tobacco and pro-tobacco advertising, "anti-tobacco media exposure [does] not mitigate the harmful effects of the pro-tobacco media." Jie Wu Weiss et al., Longitudinal Effects of Pro-Tobacco and Anti-Tobacco Messages on Adolescent Smoking Susceptibility, 8 NICOTINE & TOBACCO RES. 455, 462 (2006).
118. Because of the risk of unintended consequences inherent in command-and-control regulation, Ryan Calo recently proposed two creative options for regulating potentially manipulative marketing that do not rely on prohibiting specific types of advertisements: (1) a "paid-option regime," in which media providers would be required to offer consumers the option of paying to opt out of marketing altogether, and (2) "[c]onsumer [s]ubject [r]eview [b]oards," through which companies would internally review the possible manipulative effects of marketing on consumers, applying preestablished principles. Ryan Calo, Digital Market Manipulation, 82 GEO. WASH. L. REV. 995, 1045-48 (2014).
119. This is, in a rough sense, the doctrinal approach that has been applied by the Supreme Court of Canada, which applies a commercial speech analysis similar to the Central Hudson test. Micah L. Berman, Commercial Speech Law and Tobacco Marketing: A Comparative Discussion of the United States and Canada, 39 AM. J. L. & MED. 218, 225-31 (2013).
120. In Canada v. JTI-MacDonald Corp., the Supreme Court of Canada upheld a law that permitted "informational" tobacco advertising-advertising about a product's characteristics, availability, or price-but barred lifestyle tobacco advertising that "associates a product with⋯ a way of life such as one that includes glamour, recreation, excitement, vitality risk or daring."
121. Canada (Att'y Gen.) v. JTI-MacDonald Corp., [2007] S.C.R. 610, para. 28 (Can.). Such "lifestyle" advertising, the Court held, does not further the "values protected by the free expression guarantee: individual self-fulfillment, truth seeking and democratic participation." Id. para. 34.
122. See C. Edwin Baker, The First Amendment and Commercial Speech, 84 IND. L.J. 981, 991 (2009) (writing that "exercises of power of one person over another should be subject to collective regulation while exercises of persuasion⋯ almost never should be").
123. Piety, supra note 116, at 421 (footnotes omitted). This has long been the ultimate goal of product advertising. One of modern advertising's early innovators, Edward Bernays, coined the term "engineering of consent" in the early twentieth century in order to emphasize that "the illusion of agency was a critical component of the consumer culture." ALLAN M. BRANDT, THE CIGARETTE CENTURY 87-88 (2007).
124. See David G. Yosifon, Resisting Deep Capture: The Commercial Speech Doctrine and JunkFood Advertising to Children, 39 LOY. L.A. L. REV. 507, 512-19 (2006) (explaining "critical realism").
125. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
126. See, e.g., United States v. Stevens, 559 U.S. 460, 472 (2010) (declining to recognize "depictions of animal cruelty" as unprotected speech).
127. Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2671 (2011). What the Supreme Court meant by this passage is somewhat unclear. Endorsements and jingles-though not necessarily informational-can be methods of communicating information. The Court did not clarify whether it was the endorsements and jingles themselves that were entitled to First Amendment protection, or only the information they communicated. The puffery doctrine has been largely developed outside of the First Amendment context. It is based on the notion that consumers will disregard claims that are obviously exaggerations. But as David Yosifon notes: The idea that statements constituting puffery do not influence consumer behavior or decision-making is given the lie by the fact that a substantial proportion of contemporary advertising consists of nothing but puffery. If puffery were as inconsequential as the puffery doctrine holds it to be, then profit-maximizing corporations would not engage in it⋯. Yosifon, supra note 203, at 532-33.
128. As Christopher Robertson suggests, it may be "category mistake" for courts to even ask whether noninformational speech is truthful or not; the question presumes that the communication can be categorized as true or false. Christopher Robertson, When Truth Cannot Be Presumed: The Regulation of Drug Promotion Under an Expanding First Amendment, 94 B.U. L. REV. 545, 559 (2014).
129. But see Samantha Graff et al., Government Can Regulate Food Advertising to Children Because Cognitive Research Shows That It Is Inherently Misleading, 31 HEALTH AFF. 392, 395-96 (2012) (arguing that any advertising directed to young children should fail the first prong of the Central Hudson test). Advertising to children presents a set of different issues not explored in this Article.
130. Samantha Rauer, When the First Amendment and Public Health Collide: The Court's Increasingly Strict Constitutional Scrutiny of Health Regulations That Restrict Commercial Speech, 38 AM. J.L. & MED. 690, 702-03 (2012) ("The Court⋯ has never struck down a public health regulation because the related government interest cannot pass the second prong of Central Hudson. The protection of public health⋯ is usually successfully defended as being a substantial government interest."). Some lower courts have begun to question whether the government can ever assert a substantial interest in restricting truthful, nonmanipulative commercial speech.
131. See, e.g., Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 535 (6th Cir. 2012) ("[A] State's paternalistic assumption that the public will use truthful, nonmisleading commercial information unwisely⋯ will not support a finding of a substantial state interest." (internal quotation marks omitted)
132. (quoting 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 497 (1996))
133. Nat'l Ass'n of Tobacco Outlets, Inc. v. City of Worcester, 851 F. Supp. 2d 311, 316 (D. Mass. 2012) ("[Plaintiffs] contend that the City has no legitimate interest in prohibiting non-misleading advertising to adults to prevent them from making decisions of which the City disapproves. I agree.").
134. Like the interest in public health, the interest in preserving the fairness of the consumer exchange is also clearly a substantial government interest. See, e.g., 44 Liquormart, 517 U.S. at 501 (plurality opinion) ("When a State regulates commercial messages to protect consumers from misleading, deceptive, or aggressive sales practices, or requires the disclosure of beneficial consumer information, the purpose of its regulation is consistent with the reasons for according constitutional protection to commercial speech and therefore justifies less than strict review.")
135. Edenfield v. Fane, 507 U.S. 761, 768 (1993) (recognizing substantial government interest in preventing "fraud and other forms of deception")
136. In re R. M. J., 455 U.S. 191, 203 (1982) (recognizing a substantial government interest in preventing inherently misleading advertising or advertising proven "subject to abuse"). Therefore, the hybrid interest proposed above should qualify as a substantial government interest. See Pearson v. Shalala, 164 F.3d 650, 656 (D.C. Cir. 1999) (acknowledging "that the government's interest in preventing consumer fraud/confusion may well take on added importance in the context of a product, such as dietary supplements, that can affect the public's health").
137. See Main, supra note 93, at 634-37. Under Central Hudson review, the Court will not "supplant the precise interests put forward by the State with other suppositions." Fla. Bar v. Went For It, Inc., 515 U.S. 618, 624 (1995) (quoting Edenfield, 507 U.S. at 768).
138. Thompson v. W. States Med. Ctr., 535 U.S. 357, 371 (2002) ("[W]e have made clear that if the Government could achieve its interests in a manner that does not restrict speech, or that restricts less speech, the Government must do so.").