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Towards a New Paradigm in the Ethics of Women’s Advertising

John Alan Cohan

ABSTRACT. This paper identifies the ethical issues involved with women’s advertising, and argues that ads can be successful in generating sales without portraying women as things or as mere sex objects, and without perpetuating various weakness stereotypes. A paradigm shift in advertising appears to be at hand. This new model replaces images of women as submissive or constantly in a need of alteration, with a move to reinstate beauty as a natural thing, not an unattainable ideal. This paper also reviews general ethical issues of the advertising industry, including: (1) that advertising equates the pursuit of material gain with human happiness; (2) that advertising pushes its own values, artificial or false as they may be, as to what is “good” for the consumer; (3) that advertising plays on physical appetites and the body; (4) that advertising strives to bypass rational thinking, by desensitizing the viewer and playing on group dynamics.

Introduction This paper will focus on ethical issues pertaining to women’s advertising, and will take the view that it makes business sense for the advertising industry to adopt a new paradigm1 that emphasizes values which women hold to be important, and to discard certain practices, such as stereotyping women as weak, in need of help, or as sex objects. What I am calling the “standard paradigm” or “standard model” has had a grip on women’s advertising since the inception of Virginia Slims’ sponsorship of professional women’s tennis in 1970,2 with its emphasis on attaining impossible levels of beauty and thinness. This standard model still dominates women’s advertising today. I first will review the broad ethical issues facing the advertising industry, and then focus on

the ethical issues peculiar to women’s advertising. Other topics, treated elsewhere in the literature, include false and misleading advertising, regulation of advertising by the Food and Drug Administration (F.D.A.),3 advertising that affects children and teenagers, questions of bad taste, crudeness or vulgarity in advertising, and constitutional parameters of governmental regulation of advertising. To start out on a positive note, there is a good deal of good advertising. For instance, the popular Lancome line has just launched4 a $35 million advertising campaign featuring models who are not heavily retouched, leaving some of their freckles and other natural flaws visible. According to a spokesman at the Lancome advertising agency, “There’s less technique to the way the women are photographed, so it’s less artful. This offers women a much more human, approachable, intimate interpretation of beauty, . . . a way of saying ‘Get in touch with your inner beauty.’ ”5 This advertising approach, I think, may be the start of a paradigm shift that reestablishes images that encourage you to “find your own beauty,” rather than images of unattainable, idealized, perfection. I define advertising as a paid announcement, usually targeting a specific market group, designed to influence the purchase of goods or services. Advertising is considered to be commercial speech, and as such has been granted certain First Amendment protections over the years.6 The purpose of advertising is generally to inform targeted consumer groups of the availability and description of products and services, and to persuade consumers to buy them. Advertising is first of all a sales pitch. Advertising has an informative component,

Journal of Business Ethics 33: 323–337, 2001. © 2001 Kluwer Academic Publishers. Printed in the Netherlands.


John Alan Cohan things. Very little advertising gives emphasis on spiritual goals, on the big picture of what matters in life, or transcendental concerns (such as problems of the poor in faraway reaches of the globe). Advertising often fosters the philosophy that human happiness depends on the possession or prestige value of material things.9 2. Another complaint is advertising often generates its own values, artificial or false as they may be, as to what is “good” for the consumer. The attitude isn’t whether consumers need or want a particular product. Advertising strives to portray a product as something so appealing that you “ought” to desire this thing, that you need it, and that you should buy it. Many think that the advertising industry is too dominant in setting societal values. 3. A further complaint is that advertising often plays on our physical appetites, the body, the pursuit of pleasure, and the avoidance of pain. Preoccupation with the body in advertising affects men and women alike by making them more susceptible to persuasion. As Plato observed, “The body intrudes . . . into our investigations, interrupting, disturbing, distracting, and preventing us from getting a glimpse of the truth.”10 4. Next is the general ethical compliant that advertising strives to bypass rational thinking. A successful advertising campaign can persuade people to do all sorts of things – to consume products harmful to themselves such as tobacco, junk food, colas or alcoholic drinks – or products that are relatively useless – such as cosmetics. Advertising is today’s counterpart, I think, to the Sophists of ancient Greece, who were criticized because they used illogical methods of persuasion and gave their students more of illusion than truth. Advertising is like that. 5. Advertising is also a kind of entertainment, often with artistically superb photography, special effects, clever slogans, acting and music. But these entertainment techniques, otherwise which often are truly an art form, are deployed to attract and keep the attention of viewers and make them more susceptible to persuasion.

which serves a vital function in society. Without the widespread dissemination of basic facts about the availability of products and services, we would not have the high technological standard of living which has so elevated and enhanced the quality of our lives. I am taking the position that, in itself, advertising is neither morally good nor bad. The ethics of advertising has to do with an evaluation of the content and techniques deployed in given bits of advertising. Advertising is a pervasive presence in society – on television, radio,7 magazines, newspapers, handbills, posters, billboards, direct mail and on the Internet. Advertising is everywhere. We are besieged with commercials at airport baggage carousels, on corporate telephone lines, on flashing screens at the local market, etc. Advertising is a very big industry. In 1989 The Economist reported that, worldwide, advertising and marketing costs came to $620 billion, or $120 for every single person in the world. Today, advertising is even bigger, with the added dimension of Internet advertising. American business spends nearly $167 billion annually to give sales pitches via images of products in advertisements. Advertising far exceeds education spending, as noted by David Korten, a former Harvard Business School professor now working with advertising agencies in Asia:
[C]orporations are spending well over half as much per capita to create corporation-friendly consumers as the $207 per capita the world spends on public education. Furthermore, growth in advertising far outpaces increases in education spending.8

General ethical issues of advertising There are several general ethical concerns that have been discussed in the literature over the years. 1. One general ethical concern is that advertising tends to ratchet up the quest for material gain, leading consumers to believe that happiness depends on attaining a high material standard of living, and acquiring more and more

Towards a New Paradigm in the Ethics of Women’s Advertising 6. Truth in advertising laws say that advertisers have the moral duty to “tell the truth” about the product or service advertised. But often something quite indirect is the subject of an advertisement. Claims are often subjected such as being “the best,” the “most desirable” from among other cars on the market, for instance. Small exaggerations about the excellence of one’s produce or service (“puffery”) seems morally permissible, since the average person takes this into account as part of the norm, the context, the culture of advertising.


relentlessly; (3) professionally developed, with all of the attendant research sophistications to improve the probabilities of attention, comprehension, retention, and/or behavioral impact; and (4) delivered to an audience that is increasingly detached from traditional sources of cultural influence like families, churches, or schools.16

The techniques of advertising Advertising strives to generate a sense of identification of the viewer with the thing being advertised. Advertising today is almost a “science” based on techniques that desensitize the viewer and play on collective or group dynamics in order to sell products. Research gained from focus groups with eye tracking devices helps determine how ads are read by audiences. Advertising utilizes teams of experts to translate the desired message into the advertising image. Techniques of advertising include the following: 1. Various subliminal techniques are used to influence of consumer behavior. Subliminal techniques are based on the idea that human beings are influenced by, among other things, impressions which the brain gathers through our senses. Only a fraction of our total brain’s experience is something conscious to our everyday awareness. That is, our brains take in a much great proportion of sensual input or stimulus than our minds admit to ordinary experience. Human beings, it is argued by Freudians and others, form decisions and are motivated to take action in large part based in our reaction to sensory input of which we are largely unconscious. The constant flow of “pictures” and other visuals in advertising, often in rapid-fire succession, it has been argued, is a technique with several functions: It holds the attention of audiences, and to a widely varying extent, it can neutralize the viewer’s faculties. This neutralized state is helpful in order to foster a more passive, receptive frame of mind, a greater suggestibility, a milder state, analogous, roughly speaking to a kind of hypnosis. A “passive” state is one in

The power of advertising to influence behavior People do not typically admit that they are influenced by advertising, but they are.11 Advertising has been called “the most influential institution of socialization in modern society. . . .”12 Americans are very “culturally conditioned” by ads.13 Advertising has the power to change a set of values held by the collective majority. It can influence people to switch their attitude regarding things which they might ordinarily think of as morally wrong – to an attitude that it’s morally right or acceptable. We are influenced by advertising from the earliest age onward:
The slogans, catchwords, values, mottoes, and other lessons tattooed on young minds even before young people learn to read are not educational but commercial. They displace, contradict, and cancel, in many cases, in advance, those lessons and values which education seeks and will seek at public expense to teach and inculcate.14

Research shows that
six-month-old babies are already forming mental images of corporate logos and mascots. By the time they are three years old, most children are making specific requests for brand-name products.15

Advertising is:
(1) pervasive, appearing in many modes and media; (2) repetitive, reinforcing the same or similar ideas


John Alan Cohan The role of sex in advertising Sex appeal and the use of erotic stimuli have been at the forefront of the advertising industry from its earliest conception. A cardinal canon of advertising, proven and tested, is that sexual arousal affects how people form attitudes. The human female is used as a means of attracting attention to a product or service. So, if you can associate your product with the sexy part of a woman’s body, you can boost sales. Many advertisements are therefore designed to have an erotic effect upon individuals. In fact, both men and women find the sexual innuendoes of female bodies to be emotionally appealing, which helps incline both men and women to want to buy the product. Sex in ads arouses us in order to sell us things, to press our sexuality into the service of the consumer culture. Advertisers sometimes use homoerotic images and symbols to do the same.
Advertising, for almost as long as it has existed, has used some sort of sexual sell, sometimes promising seductive capacities, sometimes more simply attracting our attention with sexual stimuli, even if irrelevant to the product or the selling point.18

which the viewer is relatively relaxed – a perfectly normal state that many of us are in at varying times of the day, a state of nonlinear, nonthinking, more meditative and receptive – what many call “right brain function.” Humans in this state, it is argued, are more conducive to persuasion. Subliminal techniques serve to get the viewer in as suggestible state as possible. A constant barrage of commercial images can have the effect of desensitizing viewers so as to help change their point of view. Viewers may come to regard something as “right” which one formerly found to be wrong, objectionable or even sinful. 2. Repetition is an essential technique for developing skills and talents in life; we couldn’t teach manners to children without the use of repetition. However, the repetition in advertising attempts to stimulate latent desires or establish new “needs” by bypassing rational thinking. And once advertising inculcates these new “needs,” advertising strives to make these “needs” a permanent thing in the lives of consumers. 3. Bandwagon psychology is another technique which heightens the success of advertising. As discussed by Richard Dawkins in The Selfish Gene,17 certain desires, tendencies and traits get replicated in a culture on a massive scale. Replicated traits are called memes (a term something like “genes,” which implies multiplication of something by imitation or other replication). Once memes impact a collection of minds, they take root and spread to other minds; memes replicate whether or not there is some actual benefit to society, like a virus. If an advertising campaign generates a consumer craze, it’s because consumers develop an emotional reaction, a desire to get on the bandwagon. It’s a large scale collective transformation of desires, like superstitions that people believe for their mythical appeal. The appeal is based little upon any objective advantage a product might have, but on techniques of persuasion.

In society it is commonplace to use sex appeal in our daily lives in order to get ahead or to attract the attention of others. Sex as, an emphasis in advertising, some say, makes for amusing, entertaining, titillating content. In fact, it does capture everyone’s attention, which is what a skillful advertising campaign wants to happen. Community standards regarding sex are in a constant state of flux. Many think that exposing more flesh, using younger or more alluring models does no more than keep up with sexual progress in society, which is more open and less constrained on matters of sexual conduct today. Some advertisements would have been regarded as pornographic or obscene a few years ago.19 It is no longer considered shameless to observe something likely to erotically arouse you or to focus on sexually salacious features of images presented in the media. Sexually suggestive ads are so common that it becomes a complicated matter

Towards a New Paradigm in the Ethics of Women’s Advertising to argue that they are “wrong,” or in what way they are “wrong,” or whether they are better spoken of as vulgar or tasteless, thus offending the rational sensibilities of some people – or whether they are nothing more than something of a hype which ordinary audiences readily see for what they are.


in need of help, incomplete, mindless – make up the most susceptible targets for the advertising industry. 2. Women’s advertising redefines attractiveness from something natural to an unattainable ideal. There is a certain flawlessness depicted in models with impossible youth, impossible perfection – accomplished with professional makeup, hair, and photo retouchers. Some images depict women of such perfection that they seem inhuman. In fact,
the flawlessness of images in advertising is . . . an illusion. . . . Each image is painstakingly worked over: Teeth and eyeballs are bleached white; blemishes, wrinkles, and stray hairs are airbrushed away. . . . By inviting women to compare their unimproved reality with [such] . . . perfection, advertising erodes self-esteem, then offers to sell it back – for a price.23

Specific ethical issues in women’s advertising The advertising industry has a strong stake in producing ads which will get their message across to women. Women are responsible for about 80% of individual consumer spending, and a majority of household spending. Overall, women account for approximately 70% of all retail sales in the United states.20 Not just cosmetics and fashion ads, but ads for many other products and services specifically target women and teenage girls.21 Ethics in women’s advertising is becoming a popular topic. Maureen Dowd of the New York Times recently observed that lots of women gobble up the fashion magazines and get duped into believing that the advertised “looks” will make them appealing to men, and then go out and copy that look. Never mind that it’s a packaged advertised image.22 Her point, that women are easy targets for the advertising industry, helps bring into focus the peculiar ethical issues in women’s advertising. I suggest the following as three principal ethical issues in women’s advertising: 1. Many ads present sex stereotypes to do with weakness roles of women – showing women as submissive, and suggesting that women are constantly in a need of alteration or improvement, or are to feel ashamed of themselves, and dissatisfied in life. Many ads portray women as confused, childish, contradictory, or generally in need of help. The message is that a sexy woman – the type that men want – is one who is easily manipulated, vulnerable, weak, etc. This encourages women to believe they are, or that they desire to be or ought to be weak, mindless, and needy. Women who identify with or have the kind of weaknesses portrayed – being vulnerable,

The complaint here is the style of advertising pushes perfection to such a great extent that there is no room for inner beauty. Women are inculcated by advertising to believe beauty myths, which in turn motivate them to take extreme, and expensive, measures to achieve “right” appearance. The message is that only if you acquire beauty, as depicted by the advertising images, can you attain to happiness and bliss. The ads encourage women to desire to attain this standard and, at the same time, women feel frustrated because the standard seems unattainable once they pause to think about it. Still, they will associate the product with this desire and go out and buy it. 3. A third ethical concern is the kind of sexual images women are bombarded with. Advertising often portrays women as things or as mere sex objects by use of stunningly disordered models, fragmented body parts, or women displayed as dolls or animals, a woman’s face as a mask, and her body as an object. Ads of this kind suggest that women’s features are things separate and more important than a woman’s true self. Female models are often depicted in the fragmentation technique, showing only body parts (i.e., sexual parts), endorsing the idea that bodies and presumably the “people” inside of them, are


John Alan Cohan Many commentators think that depicting women as sex objects fuels a climate that tolerates violence against women. No one claims that advertising is by any means the sole cause of violence towards women. Clearly, violence towards women has existed throughout recorded history, long before the advertising industry was ever part of our culture. However, statistics show that, while rates of violent crime committed against men are declining, rates of violent crime against women have remained fairly constant.28 And studies show that men exposed to a menu of ads which depict women as sex objects are more accepting of interpersonal violence, primarily against women, than are men exposed to other types of ads. To cite one typical study:
. . . [M]ales who see print media advertisements in which women are presented as sex objects are more likely to evidence increased sex role stereotypic and rape myth beliefs, and are likely to be more accepting of interpersonal violence (primarily against women), than are males exposed to other types of advertisements.29

fragmented, that there is no unified or coherent “self.”24 Sex in ads too often is brutal and violent, rather than intimate and consenual:
Many of the sexual tableau [in ads] are not of intimate, consensual sex, which one might term erotica. Rather, they present bodies, or body parts, with the cool estrangement of commodities. Or they depict sex that is brutal and violent. . . . The issue, then, is not just that we are inundated with sexual images but the kind of sexual images we are inundated with. . . . Sex in ads is inherently exploitive. . . .25

Another area, a topic unto itself discussed extensively in the law journals, pertains to gender equality. Treating women as things instead of as autonomous, rational agents runs contrary to the spirit and intentions which ground our laws on gender equality. All of this tends to erode women’s self-esteem. A Psychology Today study indicates that it’s “no longer possible to deny the fact that images of models in the media have a terrible effect on the way women see themselves.”26 The values promoted by advertising – take “thinness,” for instance – impact jobs where women predominate, like flight attendants, waitresses, receptionists, and secretaries. A premium is placed on being attractive – meaning thin. Women face more pressure to be thin than men and are more stringently punished by society when they fail.
The false image of female beauty saturating commercial images – impossible thinness, impossible youth, impossible perfection – inhibits free participation in any body-related activity.27

Impact on society at large The depiction of women as sex objects affects attitudes of men, who from the earliest age are besieged with images of the “ideal” woman. For many men, it becomes frustrating to search in vain for that ideal woman. Men get a sense of betrayal or dissatisfaction to see that women in their life have flaws or are inevitably too tall, too short, too fat, too skinny or too buxom.

Thus, there is some statistically meaningful correlation which links the depicting of women as things, in advertising, to violence towards women. Violence stems from the perception of possess-ability, that is, the desire to control. Many “normal” men view women as things, as cute objects. It it not uncommon in the United States, for instance, to hear men refer to women as commodities, using commodity-type language, such as “Check that out!” or “How would you like a piece of that?” Often rapists refer to their victims not as “she” but as “it.” Many rapists are aroused by power, dominance and violence. The notorious serial murderer Ted Bundy said that his victims had no flesh-and-blood reality to him. I find it appropriate to quote Catharine MacKinnon from her renown essay on the harm pornography does to women. Her comments are equally suited to advertising for women, insofar as it plays upon weakness myths:
The more it is seen, the more it is normalized, the more women’s status and treatment comes to correspond to it, the more its harm merges into the appearance of women’s nature and becomes

Towards a New Paradigm in the Ethics of Women’s Advertising
invisible, and the more consumers are hooked on it. [I]f it is made public enough, the harm will not be seen. . . .30


Depicting women as things conflicts with deontology, but not with utilitarianism Depicting women as commodities or in the other ways discussed above does not pass analysis on the deontological, Kantian model, which holds that there are basic rights which override considerations of value and which everyone holds to be true. Kant’s deontology holds that “humanity” or “rational nature.” has unconditional value. Rational nature is a thing of unconditioned value because it alone has the capacity to propose an end to itself. That means we must treat people wherever you find them (in yourself and in others) as an end. What does it mean for persons to be ends-in-themselves? Kant means “ends” as a constraint: We should never treat others as a means to some further end. That implies a duty of respect for persons, treating them as ends in themselves. Since all human beings have unconditional value, it is never appropriate to regard other human beings merely as a means to some further end, as if they had instrumental value only. Thus, depicting women as tools for sexual adoration, treats women as a commodity, as a means to something else, rather than as ends in themselves. Under the Kantian model, advertisers have the duty to refrain from so depicting women. The other systematic moral theory – the utilitarian model holds that maximizing happiness and well-being, “the greatest good for the greatest number,” is the object of morality. From a utilitarian standpoint, advertising that depicts women in the ways discussed above works to produce a lot of happy people who enjoy the prosperity stimulated by the advertising industry. This sum total of happiness outweighs whatever negative utility and attendant unhappiness is generated by depicting women as things. Also, utility may argue that the advertising industry merely mirrors the way society holds itself. That is, the culture has fostered or sowed the type of climate it wants, and advertising simply feeds off

of that – just as the content of movies, TV, novels, and other media is often fueled by the way society already carries on. This utilitarian outcome could shift in a society which recognizes the importance of the types of images presented in advertising, and which encourages the industry to reestablish images which are empowering to women.

Ethical responses “Advertising, as a cultural form, displays a preoccupation with gender that is hardly matched in any other genre.”31 As noted above, the average consumer does not notice anything wrong with the common portrayals of women in advertising. The advertising industry aids the economic growth of an economy. There is never likely to be any far-reaching threat of governmental regulation to motivate self-restraint in the advertising industry because of the First Amendment hurdles, discussed in Appendix A. But that does not imply that it is ethically sound to say that a free enterprise system must support any means available to technology to persuade others to buy anything lawful to sell.32 There is no reason why advertising can’t both emphasize the desirability of high material standards, while reminding us that material gain is merely a means to an end, not an end in itself, and that there are higher purposes and ends in life. Women’s advertising, I think, can be successful while turning to more positive images that will serve to enhance, not denigrate, women’s selfesteem. Advertisers want to read the market and produce what the market will buy. Hence, they don’t have any particular stake in portraying women as things. It’s just that so far the standard paradigm has worked that way. Institutions have a certain inertia when it comes to changing their edifice. Even when the reasons for an institution no longer exist, the institutional process continues. This inertia is compounded by misinformation, folklore, or deception; it’s a fragile apparatus which is interrelated to the collective impositions of society. A paradigm shift occurs when social and psychological factors, politics,


John Alan Cohan the ads encouraged the idea of growing up too fast, and getting sexually active too young. This philosophy is at odds with the prevailing American norm about what is best for young children. Parents generally want their children to be taught to delay sex until marriage. Sexually suggestive ads directed to children conflict with the core element of most sexual education programs in the U.S., with the increasing emphasis on abstinence.37 Executives are coming up with more strategies that show greater sensitivity towards women. Executives at Nike launched a television and print ad campaign in spring, 2001, that show ordinary women working out. For instance, a runner sprinting through a city’s rain-drenched business district says, “I am not Marion Jones.” In another campaign, Sealy Inc., the largest manufacturer of mattresses, launched a multimedia campaign featuring Dot Richardson, a two-time Olympic gold medalist in softball and an orthopedic surgeon. The fast-paced spot takes the viewer through an example of a hectic day she leads in her dual live. At the end of the commercial, Dr. Richardson is seen collapsing into her bed as she proclaims, “I love this bed.” The spot ends with the tagline: “Sealy Posturepedic. We support you night and day.” The idea is to capture the breadth of her personality and to show that she understands the value of a good night’s sleep, and can speak of it from a highly professional level. In addition, Avon Products has launched a theme, Kiss Goodbye to Breast Cancer. One dollar of every lipstick sale will be contributed to raising $100 million for breast cancer research and prevention. “Lip prints” of the tennis players Venus and Serena Williams are being featured in a print campaign in magazines like Elle, Cosmopolitan, In Style, Parents, Redbook, Essence and Health. Advertising also includes public service TV spots, as well as paid outdoor and radio ads. Conclusions and recommendations I make the following recommendations to assist in a paradigm shift for the advertising industry. First, some broad recommendations:

personal influence, historical chances, and other ephemeral factors converge. We can search for non-coercive solutions. There is no reason for a laissez faire attitude among consumers and the media, who can urge advertisers and companies to achieve a paradigm shift similar to the Lancome campaign mentioned above. Such a shift would offer women a more human, approachable, intimate interpretation of beauty – more to do with inner beauty than an idealized, unattainable standard. Consumer revolt is an American tradition, fueled by our vibrant First Amendment rights. Consumers can refuse to purchase products whose advertisements depict women in offensive ways. Revolt by consumers and by critics in the media helps to motivate higher standards and can affect pocketbooks of the offending practitioners. Consumers can become more vigilant in recognizing the subtle messages presented in advertising, and teach our children to understand that advertising is not reality. Remember the “heroin chic” ads which became political fodder in 1997? They featured models with darkened eyes, emaciated skin, skinny arms, and dazed expressions, as well as scenes in “squalid rooms with dazed expressions,” and “frail models with mussed hair, dark circles under their eyes.”33 President Clinton attacked the fashion industry in May l997, saying “You, the fashion industry, need not glamorize addiction to sell clothes. The glorification of heroin is not creative, it’s destructive.” But similar images still appear in fashion marketing today.34 In fact, heroin use was up, particularly among the youth, when that campaign hit.35 The advertising industry’s own code of ethics, as discussed in Appendix C, makes it unethical to produce “statements, suggestions, or pictures offensive to public decency or minority segments of the population.” But it was public outcry from women’s groups that brought out how offensive the pictures were to public decency, and dealt those ads a short shelf life. Consumer backlash also involved a 1995 Calvin Klein campaign establishing the motif of “kiddie porn” in various popular teen magazines.36 The ads used 8th grade models with clearly salacious poses. A chief complaint was that

Towards a New Paradigm in the Ethics of Women’s Advertising 1. Advertisers should hire consultants familiar with the ethical issues of advertising to provide input on ads which may be viewed as potentially offensive to women. 2. Agencies need to do soul-searching as to what images they use in defining popular culture. What are the overt and hidden messages (about gender, age, and consumption) in these images? Are these images sexist, violent or degrading to people in general or women in particular? 3. Companies can encourage their creative teams to transform negative images to ones which empower women. This can be done, like the Lancome campaign mentioned above, by depicting women as human beings with brains and with rational will rather than emphasizing women as “things.” 4. Media should screen advertising and refuse material they deem unethical. Managers might evaluate the overall status of an ad by asking, “Is the content of this piece consistent with promotion of human dignity?” Next, I make specific content-oriented suggestions for the advertising industry: 1. In print advertising for fashion, cosmetics, perfume, etc., creative teams should hire models who are of diverse ages, of imperfect weight and size. Models should look healthy, vibrant, and should be depicted as being connected to other models in the scene rather than alienated or fragmented. 2. Photography is a classic art form which, together with creative lighting, can be deployed to capture classic poses and more natural expressions on the faces of models. 3. Printed messages of factual nature, still life photography, and other minimalist approaches can have a broad demographic appeal. Many products are suited to this treatment, such as food, soap, health care products, financial products, and fashion industry products. For instance, what could be more beautiful than seeing a still life picture of a diamond ring in a glass of champagne, or a beautiful bar of sudsy soap


in a classic soap dish? These can be accompanied by a brief slogan or minimalist statement in text. 4. Advertising need not “give up” sex appeal, but can be more inclusive by depicting older women (and men), with less than perfect figures, together with a more natural look. This can cover a broad range of appearances: For instance, an advertisement for some fashion accessory or cosmetic might show a middle-aged, overweight model, immaculately groomed (wearing the advertised cosmetic or accessory) in a packed elevator; the picture can show that a handsome man next to her is making a pass, obviously being charmed by her, and he is ignoring a knockout gorgeous women on the other side, who has a perfect figure but lacks the immaculate grooming that goes with the product being advertised. The message conveyed by an advertisement of this type is more inclusive of ordinary middle-aged women, and can be an attractive selling point. 5. A lot can be done with the ordinary. Creative teams can come up with nostalgic scenes that appeal to ordinary values. For instance, fashion or cosmetics advertising can show models – again, models who have a broad range of appearances, a healthy and natural look, and older in appearance – who are attending to routine matters of daily living (such as caring for children, cooking, or hailing a taxi), while clothed in the most beautiful fashions, cosmetics, and accessories. This can be a good selling point, reaching and appealing to a broader sector of women in all walks of life. These type of scenes might show the desirability of wearing fashionable products, cosmetics or eyewear in the context of an overworked female surgeon, for instance, or a female bus driver. 6. Endorsement advertising might be implemented on a selected scale, utilizing public figures such as female athletes and retired public figures. They can serve as an inspiration to other women as well as provide a selling point.


John Alan Cohan
an advertisement – such as prohibiting tobacco advertising at sports events, or prohibiting use of child pornographic depictions in advertising, or prohibiting advertising of certain products except at times when children are least likely to be watching TV (10:00 P.M. to 7:00 AM) must pass these four prongs: 1. Is the communication misleading or unlawful? If the answer is yes, then the inquiry stops and the constraint on commercial speech is allowed.43 [This is because pre-existing law already authorizes constraint of false or deceptive advertising, with powers of enforcement vested in the Federal Trade Commission and counterpart state Attorney Generals.] 2. If the activity is lawful and the communication is not misleading, then is there a “substantial governmental interest” being asserted in enforcing the constraint?44 3. How, if at all, does this constraint on commercial speech “directly advance” the government’s interest?45 4. Is the constraint “no more extensive than necessary” to further the government’s interest?46 If the analysis goes through these criteria, the commercial speech regulation will be upheld. However, application of facts to these 4 prongs will vary depending on the individual governmental official or judge who might take on the task. As with other areas of law, such as criminal procedure, this is a difficult area because of the wide differences in analyzing a given set of fact among fact-finders. A standard of this kind is inherently flawed because it cannot “scientifically” be applied consistently; it isn’t a law of nature but is merely a judicial blueprint for analyzing particular cases. Liberal jurists want to give commercial speech more protection, but the trend has been to permit restraint on advertising in cases in which the 4-prong test is strongly suited. In Posadas de Pureto Rico Associates v. Tourism Company,47 the Court upheld a law in Puerto Rico which prohibited casino gambling advertising in publications or broadcasts likely to be seen by Puerto Rico citizens. The law was “no more extensive than necessary” because it permitted advertising in venue aimed at tourists. It held that while the casino advertising wasn’t false or deceptive, still the government had a substantial interest in the “health, safety, and welfare of its citizens,” and that the prohibition “directly advanced” the government’s interest and was “no more extensive than necessary” to further that interest.48

7. Advertising from banking, financial, insurance, or health care companies often is directed predominately towards women. Advertising in these contexts could more directly incorporate ordinary-looking, middle-aged women and minority women, showing them as leaders of family decisionmaking on the subject matter. In conclusion, I want to say that there is no reason why advertising can’t be successful in generating sales, while imparting a truer reflection of the values women esteem. Appendix A Summary of Constitutional Law of Government Regulation of Advertising
Advertising is regulated by the Federal Trade Commission (F.T.C.) regarding untruthful or deceptive advertising, and by other governmental agencies, by State laws, the Better Business Bureaus and such trade associations as the National Association of Broadcasters, the Direct Mail Advertising Association – and others which have drawn up codes for advertising. The Food and Drug Administration (F.D.A.) supervises advertising that involves drugs and medical devices. Governmental regulatory bodies have teeth, such as the F.D.A. and F.T.C., and they enforce rules not laid down by industry but implemented by what is thought to be in the public interest. Advertising is “commercial speech” under Supreme Court precedent. Government can regulate or restrain commercial advertising up to a point. 38 But that doesn’t mean there can be “some sort of sweeping proposition that advertising is unprotected per se.”39 Presently, advertising enjoys a “second-class level of First Amendment protection” in that there are “some commonsense differences between speech that does ‘no more than propose a commercial transaction’” and other types of speech which “suggest that a different degree of protection is necessary.”40 That is, commercial speech has a “limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values.”41 Attempts by government to regulate or restrict advertising and other commercial speech are allowed by passing a four-prong test established by Central Hudson Gas & Electric v. Public Service Commission of New York.42 A regulation that restricts the content of

Towards a New Paradigm in the Ethics of Women’s Advertising
Another aspect of constraint on advertising in that case involved a consideration of the underlying “product” being advertised – in this case, gambling, which isn’t a constitutionally protected right, and which the State can ban outright, along with other things in the category of vice. A similar question could arise in places such as Nevada, where prostitution by licensed brothels has been legalized. Can brothels advertise in the press or on TV? The answer is that the State can constrain such advertising, based on the above analysis, if the government could ban or restrict the underlying activity itself. This can get murky because the government can theoretically, via the police power, impose restrictions on a great variety of activities which we take to be our “right.” In drafting new laws, legislators would be wise to refer to the Puerto Rico statue as a model, and remember to put in some “exception,” such as allowing advertising of the brothel “on adult sites of the Internet,” for instance, to make the law more likely to pass constitutional muster.


Appendix B The Virginia Slims Campaign
Tobacco advertising at sporting events was banned in 1996 by the Federal government under F.D.A. regulations.49 The ban was challenged in Federal court system, and then was largely incorporated into the settlement reached by the F.D.A. and the tobacco industry in 1997. This ban came about largely on the heels of one of the most impactful advertising campaigns in modern times – the Virginia Slims sponsorship of professional women’s tennis, launched in 1970. That campaign allowed the name of Virginia Slims to be displayed at sports events and viewer audiences, inevitably to the attention of women and teenage girls interested in women’s tennis, at a time when tobacco could not otherwise be advertised on TV. The Virginia Slims campaign targeted women and teenage girls by ingeniously deploying two major themes: independence and weight control. The theme of independence was exemplified by the Virginia Slims slogan “You’ve Come A Long Way, Baby!” This slogan “contrasted women’s lack of historical rights with the modern situation in which women could have everything, even ‘a cigarette brand for your very own.’ ”50 The F.D.A.’s argument in support of a ban on tobacco advertising at sporting events was that such

sponsorship creates a “friendly familiarity” between tobacco and sports enthusiasts.51 It creates an “attractive and exciting image” of tobacco products “that can serve as a ‘badge’ or identification,” and create “an impression of prevalence and normalcy about tobacco use.”52 The Virginia Slims campaign was created by an all-male advertising team charged with establishing a brand name “personality.” Their philosophy was that 90% of what you communicate is nonverbal, just symbols or gestures. Much of the pressure to feel attractive and thin is, in the first instance, a situation – a set of values constructed by the advertising industry itself. That argument is based on the observation that during much of the 20th Century society reflected post-Victorian values, which meant that plumpness was part of women’s beauty, not thinness. Women’s cigarette brands use “code words” related to weight such as slim, light, thin, super-slim, ultra light. The fact that cigarettes were featured with words like slim, light, thin, etc., was therefore troublesome.53 The problem was compounded because many teenage girls are obsessed with their appearance and have a need to perceive themselves as being attractive and thin. The campaign was very successful in increasing the number of adolescent females who took up smoking. Smoking rates among young women increased sharply in the late 1960’s following the introduction of Virginia Slims and other “female brands.”54 The Virginia Slims campaign was cited in the various State Attorney General lawsuits against the tobacco industry. The State of Wisconsin, for instance, alleged that the industry targeted young girls as part of its overall strategy to entice teenage smokers: One of the most important psychological needs of most adolescent girls is to become independent from their parents. By associating smoking with women’s liberation, Philip Morris hopes to create in the minds of these teenage girls the vision of smoking as a symbol of autonomy and independence. . . .55 Advertising executives were acutely aware that teenage girls are particularly responsive to cigarette advertising.56 The ethical solution for advertising executives who handled the Virginia Slims campaign would have been to jettison the project because, as such, it was a sophisticated campaign designed to appeal to teenage girls and women, while withholding information about the addictive properties of tobacco and its serious health effects.

334 Appendix C

John Alan Cohan
industry does involve such subliminal and hidden techniques and, all the same, whether such techniques are successful in the first place. Idea is that people can be made to move or act on impulses activated by sensory impressions that they are not conscious of.

Professional Self-regulation of Advertising Ethics
The Standards of Practice (Code of Ethical Conduct) of the American Association of Advertising Agencies (known as “4As”) was first adopted in l924, and revised in l990. 57 The 4As is the most prominent professional association in the advertising industry. However, the code of professional ethics of the 4As is less rigid and has a toothless policing authority compared to codes of professional conduct in other fields such as engineers, doctors, attorneys, pharmacists, stockbrokers, accountants, etc. This code of ethics seeks to provide industry members with a standard to guide their actions. It is designed to encourage members to improve the moral level of advertising and, at minimum, to comply with existing norms as dictated by their industry. The 4As code of ethics is called the Standards of Practice, and is barely one page of text! The one section that is relevant to ethics, section “e” of its Creative Code, singles out “Statements, suggestions, or pictures offensive to public decency or minority segments of the population.” This section would seem to apply to a broad range of concerns. This section implies that advertising executives and creative people have the ethical duty to refrain from recommending, i.e., producing “statements, suggestions, or pictures offensive to public decency or minority segments of the population.” The 4As has little enforcement power. The most that can happen to an offending party is revocation of membership. Some regard the advertising industry’s “self-regulation” to be just feathering of their own nests, and that they don’t sufficiently protect the public, particularly since the 4As are not directly responsible to the public. The industry’s self-regulation simply provides non-coercive guidance, and, from what appears clear in today’s advertising content, is often eclipsed by considerations of marketing advantage of its membership. * * * E.g., vulgar or tasteless advertisements would offend one’s rational sensibilities; or the repetition of banal slogans would be something of a hype that people ought to readily see for what it is; Advertising has, itself, eclipsed the standards, made them imprecise, difficult to determine, through its own raucous, off-key, cutting edge and vulgar – and repetition – that has been the case. There is disagreement as to whether the advertising


Scientists move from one “paradigm,” or theoretical framework, to another based on social and psychological factors as well as experimental ones, as discussed in “The Structure of Scientific Revolution,” a book first published in l962 by the philosopher of science, Thomas Kuhn. Even with scientific theories, their acceptance by society has much to do with ephemeral factors such as politics, personal influence and historical chances. A paradigm shift in the advertising industry also would rely on these factors. 2 The Virginia Slims campaign is discussed in Appendix B of this paper. 3 I mention here of particular interest the brouhaha about the F.D.A.’s new rules permitting drug advertisements directly to consumers on television and in print. Drug safety experts complain that the flood of ads misinform consumers and put pressure on doctors to write unnecessary, or inappropriate, prescriptions. A recent F.D.A. survey showed that among 960 people who had visited a doctor in the previous three months, 27% were induced by an advertisement to ask their doctor about medical conditions they had never discussed before. Drug ads so far have involved drugs for herpes, allergies, depression, sexual dysfunction, baldness, obesity and the flu. Recently the F.D.A. issued a public health advisory warning that doctors were relying too much on Relenza, a heavily advertised medication for the flu; several patients have died because of inappropriate use of that drug instead of more aggressive treatment. See, Sheryl Gay Stolberg, “Want a New Drug? Plenty to Choose From on TV,” The New York Times, January 23, 2000, Week in Review, at 5. According to Dr. Raymond Woosley, chairman of the pharmacology department at Georgetown University, “Doctors are being pressured. People are saying, ‘I will go to another doctor if I don’t get [the prescription] from you.’ ” Id. 4 In March, 2000. 5 Quoting Tony DeGregorio, president at the New York office of Publicis, the Lancome advertising agency. The New York Times, 12/17/99 at C8. 6 See Appendix A for a summary of constitutional law governing advertising and other commercial speech.

Towards a New Paradigm in the Ethics of Women’s Advertising
Radio advertising revenue came to $15.5 billion in 1999 according to the Radio Advertising Bureau. Radio is now using a technology called “Cash” to compress audio and visual signals to make more time for commercials. Pockets of silence in between syllables or words are shrunk, so the pace is quicker than in the actual situation – and that can mean several minutes more advertising time per hour. Just about every live radio program uses it, even the Inspirational Network in Charlotte, N.C. (to speed up sermons and religious programming). 8 David C. Korten, When Corporations Rule the World (Hartford, Berrett-Koehler, l996), 152–153. 9 Czechoslovakian playwright and politician Vaclav Havel warns that consumerism leads to spiritual and moral decay. Consumerism, he says, is a desperate substitute for living. When life becomes reduced to a hunt for consumer goods, freedom becomes trivialized to mean a chance to “freely choose” which brand to buy, or so we think. 10 Phaedo 66d, cf. Philebus 250c, Republic 485c–e. 11 In her book, “The Overspent American,” Harvard economist Juliet Schor shows that for every hour of television adults watch per week, spending rose by $208 a year. For an average viewer that means watching TV for 10 hours per week results in spending an additional $2,080 per year compared to those who watch no TV. 12 Sut Jhally, The Codes of Advertising: Fetishism and the Political Economy of Meaning in the Consumer Society 1 (l987). 13 Nina Burleigh, Advertisers Still Lagging Behind the Times, Chicago Tribune, Apr. 7, 1991, §6 at 8. As noted by Ms. Burleigh, children are particularly vulnerable to the influence of advertising. 14 Harry J. Skornia, Television and Society 158 (1956). 15 James U. McNeal & Chyon-Hwa Yeh, Born to Shop, American Demographics, June 1993, at 34, 36–39. The president of Kids ‘R’ Us, Mike Searles, says, “If you own this child at an early age, you can own this child for years to come.” Ron Harris, Children Who Dress for Excess: Today’s Youngsters Have Become Fixated with Fashion, L.A. Times, November 12, l989, at A1. 16 Pollay, supra, at 21. 17 Oxford University Press, 1986. Bandwagon associations also help boost the playing field as to how much people want to spend on things. Author Robert Frank coined the phrase “Luxury Fever” in a book of that title, in which he says: “If you read about someone high on the ladder buying a $50,000 wristwatch, then you don’t feel like such a spendthrift if


you buy a $1,000 watch.” The New York Times, 5/3/98, Money Section at 12. 18 Richard W. Pollay, The Distorted Mirror: Reflections on the Unintended Consequences of Advertising, J. Marketing, April l986, at 18, at 28. 19 In recent years it has become a problem to draw lines between “pornography” and mainstream commercial images. In an ubiquitous environment of advertising consumers are besieged by a myriad of images that once were the domain of hard core pornography. 20 Cheryl B. Preston, Significant Bits and Pieces: Learning from Fashion Magazines about Violence against Women, 9 UCLA Women’s L.J. 1 at 74 (Fall-Wint ’98). 21 For instance, in Super Bowl XXXIV there were more commercials aimed at women, for products like Bud Light beer and Tropicana orange juice. Stuart Elliott, “Big Plays, Surprise Heroes, Shocking Defeats and Other Super Bowl XXXIV Marketing Memories,” The New York Times, 2/1/00, at C10. 22 Maureen Dowd, “Chicks Nix Hose on Stix,” The New York Times, January 19, 2000, Op-Ed page. 23 Michael F. Jacobson and Laurie Ann Mazur, Marketing Madness: A Survival Guide for a Consumer Society 75 (l995). 24 The technique of fragmentation is also used in pornography, which often depicts or emphasizes particular body parts in isolation, maybe filling the whole screen. Fragmentation gives the message that “subjects” are deprived of individuating or identifying features – that the people who make up these scenes are just fungible things, like factory made parts that have no unique identity. 25 Jacobson and Mazur, supra, at 84–87 (first emphasis added). 26 David M. Garner, “The l997 Body Image Survey Results,” Psychol. Today, Jan./Feb. 1997, at 30, 34. 27 Cheryl B. Preston, “Consuming Sexism: Pornography Suppression in the Larger Context of Commercial Images”, 31 Georgia L.R. 771 (1997) at 839–840. 28 See U.S. Dep’t of Justice, Bureau of Justice Stat. Factbook, Violence by Intimates, Analysis of Data on Crimes by Current or Former Spouses, Boyfriends, NCJ167237, March l998. 29 Kyra Lanis and Katherine Covell, Images of Women in Advertisements: Effects on Attitudes Related to Sexual Aggression, 32 Sex Roles 639, 646 (l995). 30 MacKinnon at 161. 31 Quoting Sut Jhally, supra, at 136. 32 We no longer live in a society with a complete laissez faire philosophy towards where caveat emptor,


John Alan Cohan
Id. at 569–570. 478 U.S. 328 (1986). 48 Id. at 341. 49 Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, 61 Fed. Reg. 44,396 (1996) (codified at 21 C.F.R. pts. 801, 803, 804, 807, 820, and 897). The F.D.A. Regulations state that “no manufacturer, distributor, or retailer shall sponsor or cause to be sponsored any athletic, musical, artistic or other social or cultural event, in the brand name, logo, motto, selling message, recognizable color or pattern of colors, or any other indicia of a product identification similar or identical to those used for tobacco or smokeless tobacco products.” Id. at 44,527 (21 C.F.R. 897.34(c)). 50 Anne Marie O’Keefe and Richard W. Pollay, “Deadly Targeting of Women in Promoting Cigarettes,” 51 JAMWA 67, 68–69 (1996). Recall that in the late 1980’s, cigarettes were the second most heavily advertised product in magazines. Patricia A. Davidson, “Tales From the Tobacco Wars: Industry Advertising Targets Teenage Girls”, 13 WIS. Women’s L.J. 1, 6 (l998). 51 Many such enthusiasts are children and adolescents who “are still forming attitudes and beliefs about tobacco use” and see smoking “as a coping mechanism, a gauge of maturity, a way to enter a new peer group, or as a means to display independence.” Children will repeatedly see and “begin to associate the event, which they are enjoying, with the imagery and appeal of the product.” Id. 52 Id. at 44.529. 53 Michele Bloch and Deborah McLellan, “Women, Girls and Tobacco Use,” in IV Tobacco Use: An American Crisis, 69, 71 (Thomas P. Houston, ed., 1993), at 71. 54 John J. Pierce et al., “Smoking Initiation by Adolescent Girls, 1944 Through 1988: An Association With Targeted Advertising,” 271 JAMA 608, 610 (1994). 55 Patricia A. Davidson, “Tales From the Tobacco Wars: Industry Advertising Targets Teenage Girls,” supra at 7. 56 See, Richard W. Pollay, “Hacks, Flacks, and Counter-Attacks: Cigarette Advertising, Sponsored Research, and Controversies,” 53 J. Soc. Issues, 53, 55 (1997). Another ethical issue, beyond the scope of this article, involves advertising of junk food at sporting events, such as experienced in 1984, when Mars Company paid $5 million to have Mars and Snickers bars declared the official snack foods of the 1984 Olympic Games.
47 46

or “buyer beware.” To the contrary, in many contexts, in medicine, pharmacology, accounting, engineering or the law-consumers are entitled to rely on professional recommendations to undergo a procedure or buy a service, or that such service is needed for reasons that are important to the client or patient. A doctor who recommends unwarranted procedures just so he or she can generate profits would be subject to malpractice and medical discipline. And lawyers are prohibited from ambulance chasing or persuading clients in vulnerable situations to engage their services. Why? Because fundamental fair play requires that consumers be allowed to follow rational decision-making based on full disclosure of relevant facts. 33 9 UCLA Women’s Law Journal, supra, at 30. 34 John Galliano’s winter 2000 fashion show unveiled his spring-summer haute couture collection in Paris using Dior models, shockingly thin, posed as starving, homeless women. They came down the runway wearing things like torn linings, inside-out labels, accesssorized with tiny green J&B whiskey bottles, tin cups dangling from their derriere, plastic clothpins and safety pins. One model posed as a lunatic ballerina in a natty straitjacket, with ghostly white makeup. The fashion designer explained that he was “inspired” by the French homeless as well as the mentally ill. 35 See, Warren Riche, “Heroin Finds Market in Young People: Use Doesn’t Approach Level of the 1970s, But Purity if Up, Age of User Down,” Christian Science Monitor, March 23, 1998, at 4). 36 “Kiddie porn” is a problem that has elicited Federal legislation prohibiting the production, sale, distribution or possession of child pornography. 37 Jodi Wilgoren, “Abstinence Is Focus of U.S. Sex Education,” New York Times, 12/15/99 at A16. Most school districts have changed their sex education policies over the past decade, with a third increasing the emphasis on abstinence. Legislation in l996 allocated $440 million in state and federal money for abstinence-only programs. A separate issue is the exploitation of child models who are paid for sexually suggestive modeling. 38 Valentine v. Christensen, 316 U.S. 52 (1942). 39 Bigelow v. Virginia, 421 U.S. 809, 820 (1975). 40 Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc., 425 U.S. 748, 772 n. 2 (1976). 41 Florida Bar v. Went For It, Inc., 515 U.S. 618, 623 (1995). 42 447 U.S. 557 (1980). 43 447 U.S. at 563. 44 Id. at 564. 45 Id.

Towards a New Paradigm in the Ethics of Women’s Advertising
A study to examine the overall influence of its Standards of Practice (Code of Ethical Conduct) on members and nonmembers was reported in the Journal of Business Ethics, Vol. 17, 1155–1161, 1998. Some researchers question whether professional association codes have much influence. Others think that the codes can and do have an impact on decisionmaking and policy. Of course, as with any code of ethics, the professionals must first be made aware that such rules of ethic exist. Another code is issued by the Advertising Standards Authority, which advises advertisers. 58 Cheryl B. Preston, Significant Bits and Pieces:


Learning from Fashion Magazines about Violence against Women, supra, at 11. 59 Michael Janofsky, “Naked Bodies: Oh, My Goodness Words. They Attract Plenty of Attention But Can They Hold It?”, N.Y. Times, October 4, 1993, at D8.

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