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University of California, Hastings College of the Law

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2008

Neuroethics of neuromarketing
Emily Murphy
University of California Hastings College of Law, murphyemily@uchastings.edu

Judy Iles

Peter B. Reiner

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Recommended Citation
Emily Murphy, Judy Iles, and Peter B. Reiner, Neuroethics of neuromarketing, 7 J. Consumer Behav. 293 (2008).
Available at: https://repository.uchastings.edu/faculty_scholarship/1506

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Journal of Consumer Behaviour
J. Consumer Behav. 7: 293–302 (2008)
Published online in Wiley InterScience
(www.interscience.wiley.com) DOI: 10.1002/cb.252

Neuroethics of neuromarketing
Emily R. Murphy 1,2y, Judy Illes 1z and Peter B. Reiner 1*
1
National Core for Neuroethics, University of British Columbia, Vancouver, BC, Canada
2
Center for Law and the Biosciences, Stanford Law School, Stanford, CA, USA

 Neuromarketing is upon us. Companies are springing up to offer their clients brain-based
information about consumer preferences, purporting to bypass focus groups and other
marketing research techniques on the premise that directly peering into a consumer’s
brain while viewing products or brands is a much better predictor of consumer behavior.
These technologies raise a range of ethical issues, which fall into two major categories:
(1) protection of various parties who may be harmed or exploited by the research,
marketing, and deployment of neuromarketing and (2) protection of consumer auto-
nomy if neuromarketing reaches a critical level of effectiveness. The former is straightfor-
ward. The latter may or may not be problematic depending upon whether the technology
can be considered to so effectively manipulate consumer behavior such that consumers
are not able to be aware of the subversion. We call this phenomenon stealth neuromar-
keting. Academics and companies using neuromarketing techniques should adopt a code
of ethics, which we propose here, to ensure beneficent and non-harmful use of the
technology in consideration of both categories of ethics concerns.
Copyright # 2008 John Wiley & Sons, Ltd.

Introduction Nation called it ‘‘the most alarming invention


since Mr. Gatling invented his gun’’ and The
In 1957, the marketing executive James Vicary
New Yorker stated that ‘‘minds had been
announced that he had increased sales of food entered and broken’’ (Moore, 1982). With
and drink at a movie theater by secretly
growing public understanding that the brain is
flashing subliminal messages with the words
the mediator of behavior, the public’s reaction
‘‘Drink Coca Cola’’ and ‘‘Eat Popcorn’’. The
to neuromarketing intrusions into their brains
study was never published and may have even
may prove to be equally vigorous.
been a hoax (Karremans et al., 2006), but the The term ‘‘neuromarketing’’ identifies a new
episode illustrates the public’s strong reaction
field of research championed by both aca-
to covert manipulation. An article in The demics and self-labeled companies using
advances in neuroscience that permit power-
*Correspondence to: Peter B. Reiner, Professor, National
Core for Neuroethics, University of British Columbia,
ful insights into the human brain’s responses to
2211 Wesbrook Mall, S121 Vancouver, BC V6T 2B5, marketing stimuli (Renvoisé and Morin, 2007;
Canada. Senior et al., 2007). The goals of neuromarket-
E-mail: peter.reiner@ubc.ca ing studies are to obtain objective information
y
Fellow
z
Canada Research Chair in Neuroethics and Professor of about the inner workings of the brains of
Neurology consumers without resorting to the subjective

Copyright # 2008 John Wiley & Sons, Ltd. Journal of Consumer Behaviour, July–October 2008
DOI: 10.1002/cb
294 Emily R. Murphy et al.

reports that have long been the mainstay of neuromarketing industry to prevent harms and
marketing studies. Thus, neuromarketing pur- preserve business integrity and consumer
ports to provide qualitatively different infor- trust.
mation, ostensibly superior to that obtained by
traditional means, about the economically
The market for neuromarketing
valuable topic of consumer preferences.
There is, of course, nothing inherently Although the electroencephalography (EEG)
problematic about the use of scientific tech- has been in use for the study of marketing
nology to advance commercial interests (Eaton preferences for over 35 years (Krugman,
and Illes, 2007). But the use of technology that 1971), there is little doubt that we have
probes the inner workings of the human entered a new age of neuromarketing in which
brain, especially beyond what one might advanced technology is being used in unpre-
divulge in traditional behavioral testing, cedented ways to probe consumer prefer-
raises substantial ethical issues. These concerns ences. A raft of peer-reviewed papers and
fall into two major categories: (1) protection of books have appeared in recent years in which
various parties who may be harmed or positron emission tomography (PET), func-
exploited by neuromarketing and (2) protection tional magnetic resonance imaging (fMRI) and
of consumer autonomy. The public outcry quantitative EEG analyses have been used to
in response to Vicary’s subliminal imagery assess consumer behavior (Smith et al., 2002;
reflects a clear ethical boundary – the autonomy Dickhaut et al., 2003; McClure et al., 2004;
violation produced intrinsic discomfort with Mast and Zaltman, 2005; Ahlert et al., 2006;
consumers having their preferences manipu- Knutson et al., 2007; Koenigs and Tranel,
lated when they did not and could not know as 2008; Plassmann et al., 2007; Renvoisé and
much. A similar boundary can be drawn for Morin, 2007; Schaefer and Rotte, 2007a, b). It
contemporary marketing, particularly when has already been anticipated that other
informed by information gleaned from novel neuroimaging technologies such as magne-
neurotechnologies. Neuroethics, in proactively toencephalography and cortical manipulation
dealing with ethical issues unique to knowledge with transcranial magnetic stimulation, as well
about and manipulation of the human brain, is as combinations of modalities will be adopted
well-positioned to offer guidance for beneficent by ‘‘market researchers who wish to deploy a
and non-harmful deployment of neuromarket- specialized neuromarketing profile’’ (Senior
ing techniques. et al., 2007). We refer the reader interested in
We will first briefly review the state of the art details of each technology to the recent
and state of the market in neuromarketing. overview by Senior et al. (2007) as well as
The second section tackles current ethical other papers in this Special Issue; different
issues in neuromarketing, which apply irre- neuroimaging techniques have strengths and
spective of the technological capabilities. We weaknesses in temporal and spatial resolution.
focus our discussion on potential harms The choice of modality by neuromarketers will
to research subjects, exploitation of vulner- no doubt be informed by a priori hypotheses
able niche populations, and the integrity of and pilot research about relevant brain areas
business relationships, public trust, and con- and activation patterns useful for predicting
sumer confidence. The third section will actual consumer behavior.
thoroughly explore the most substantial neu- The convergence of increased power in the
roethical concern associated with neuromar- form of technology and advances in our
keting: the incursion on autonomy made by understanding of cognitive function has
neuromarketing if it achieves a level of emboldened some to make sweeping con-
effectiveness that amounts to consumer coer- clusions about the power of neuromarketing.
cion. We conclude with pragmatic recommen- Indeed, at least ten commercial enterprises
dations: an ethical code to be adopted by the have been established with the explicit

Copyright # 2008 John Wiley & Sons, Ltd. Journal of Consumer Behaviour, July–October 2008
DOI: 10.1002/cb
Neuroethics of neuromarketing 295

objective of using these advanced technologies and commercial settings have both ethical and
to provide neuromarketing (Emsense, FKF legal responsibilities to obtain informed con-
Applied Research, Lucid Systems, Neurofocus, sent and protect the privacy of research
Neuroco, Neurosense Limited, OTOInsights, subjects whose brain function is probed with
Sales Brain, Sands Research, and Thought imaging technologies, as per the Common Rule
Sciences) and at least one US patent has been (DHHS, 1991). The legal framework for such
issued on the topic (Zaltman and Kosslyn, privacy protection in the United States is
2000). Neuromarketing studies have garnered covered under PRIVACY RULE of the Department
a great deal of attention from the public, with of Health and Human Services (DHHS, 2005);
extensive coverage in both the mainstream while this applies in some instances, it is
press (Kelly, 2002; Roston, 2004; Greene, notable that such protections are apparently
2007; Haq, 2007; Park, 2007; Saletan, 2007; absent when the subject is participating in a
Baker, 2008; Brainard, 2008) and internet study being carried out for marketing purposes
weblogs (Dooley, 2007). One study has even (Tovino, 2005). Thus standards for protecting
cautioned against a ‘‘neurorealism’’ created by the privacy of individuals participating in
press coverage of novel technologies and their neuromarketing studies in the United States
real or potential applications in society (Racine are at the very least considerably comprom-
et al., 2005). ised. In academic and medical research
centers, subjects volunteering to participate
in neuroimaging-based studies are protected
Protection of vulnerable parties by Institutional Review Board guidelines,
in research, selling, and which can include strict experimental guide-
representation of neuromarketing lines because most imaging technologies
We first consider a set of issues that merit are considered to be FDA-regulated medical
ethical analysis irrespective of whether the devices (FDA, 1998). However, when moved
most speculative claims of neuromarketing into commercialized and private enterprise,
hold up to rigorous scientific analysis. Ethical such subject protections may not be present,
development of neuromarketing requires and the particularly loose restrictions sur-
protection of the research subjects, respon- rounding studies for marketing purposes are
sible business-to-business advertising, and especially worrying. Moreover, if new tech-
accurate representation of the state of the nologies are developed that fall outside the
art of the technology to the public. Each of purview of regulatory authorities, even these
these duties can be ensconced in an industry- protections may be lost. A key initiative for
wide code of ethics that we propose be neuroethics in neuromarketing is to develop
adopted by all researchers and vendors of published codes of subject protections equal
neuromarketing and enforced by a discerning to those required by academic and medical
marketplace of neuromarketing consumers research centers. fMRI, the most prevalent of
doing business with companies voluntarily the neuromarketing imaging modalities, is
adhering to the code of ethics. Not only would arguably a low-risk technology; nonetheless,
adoption of a code of ethics be justified on risks of various sorts are inherent in all brain-
moral grounds, but it would also serve to imaging research and all subjects regardless of
insulate this young and dynamic industry from the purpose of the study are deserving of
accusations of irresponsible behavior. adequate protection and appropriate informed
consent procedures.
Even thornier than the issue of subject
protection is the notion that advanced tech-
Human subjects’ protection
nology in the neurosciences, in particular
It is well established that federally funded fMRI, might allow invasion of the inner
scientists working in academic, government, sanctum of private thought. It bears repeating

Copyright # 2008 John Wiley & Sons, Ltd. Journal of Consumer Behaviour, July–October 2008
DOI: 10.1002/cb
296 Emily R. Murphy et al.

that such a breach is not possible today and sorts. Independent critics have openly and quite
may or may not be technically achieved in the rightly condemned neuromarketing efforts that
future. Nonetheless, a vigorous discussion has overstate the benefits of the approach. The
emerged regarding this possibility (Kulynych, editors of the high-impact journal Nature
2002; Illes and Racine, 2005; Tovino, 2005; Neuroscience succinctly reviewed the dangers
Greely, 2006; Alpert, 2007; Appelbaum, 2007; of over interpretation of neuromarketing results,
Illes, 2007; Tovino, 2007) and it is certainly noting that the traditional skeptical approach of
worth considering how society might manage scientific inquiry is being displaced by a wave of
such information if it became technically media hype which suggests that fMRI ‘‘is on the
feasible. verge of creating advertising campaigns that we
will be unable to resist’’ (Editorial, 2004). In this
Preventing exploitation of niche sense, neuromarketing represents just one
populations example of a more general problem in neuroi-
maging research – the question of the degree to
Special ethics review should be a minimum which results which are certainly fascinating
standard for neuromarketing research that and worthy of continued attention can be used
either involves or targets vulnerable popu- to derive bona fide insights about the working
lations. Among the individuals that would fall of the human brain (Illes and Racine, 2005), and,
under this umbrella are persons (or family with particular relevance to the claims of
members of persons) with neurological disease neuromarketing, the accurate prediction of
or psychological disorders, children, and other human behavior. Business consumers of neuro-
members of legally protected groups (Civil marketing may find their advertising dollars
Right Act (2008) 42 U.S.C.A. xx 2000e et seq.; misspent if the technology does not live up to its
Coenen, 2007). While such ‘‘segmentation’’ claims and pass the real-world test of accurate
and ‘‘target marketing’’ is standard business prediction of actual consumer behavior. How-
practice in the marketing industry, there is a ever, we are not overly concerned here with
fine line between target marketing and exploi- business-to-business relationships; harms there
tation (Sims, 1997). Our neuroethical concern is are primarily the potential for financial loss,
about potential harms to vulnerable persons but are not inherently unethical (though they
as: (1) subjects in unregulated neuromarketing may not meet industry standards of ‘‘truth-in-
research (introduced above), (2) targeted advertising’’) (Frazier, 2007). However, poten-
populations who may be especially sensitive tial for actual harm exists if such ‘‘neurohype’’
to trumped-up claims of product effectiveness around the perceived capabilities of neuromar-
based on information derived from advanced keting create fear, anxiety, or mistrust in the
neuroscience technologies, and (3) people general public.
particularly exposed to ‘‘stealth neuromarket- Scientists working in the field of neurobiol-
ing’’ techniques that such research and devel- ogy recognize the considerable challenge
opment may produce (see below). Fortunately, involved in the translation of the brain’s
the prevention of such harms to vulnerable extraordinary connectivity – the human brain
persons aligns with profit motive, for as Sims is arguably the most complex biological organ
(1997) points out, when targeting a particular in the known universe, with tens of billions of
market ‘‘maligns those it tries to serve,’’ it cells, each of which make thousands of
undercuts its own business interests. connections with other cells (Purves et al.,
2008) – into the complex repertoire of
behavior exhibited by humans. At the same
Responsible business-to-business
time, the general public finds color-coded
advertising and public representation
images of brains in action accompanied by
It is perhaps not surprising that neuromarketing neuroscientific explanations to be particularly
oversells its wares – an occupational hazard of persuasive (Dumit, 2003; McCabe and Castel,

Copyright # 2008 John Wiley & Sons, Ltd. Journal of Consumer Behaviour, July–October 2008
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Neuroethics of neuromarketing 297

2007; Weisberg et al., 2008). This tension leads Stealth neuromarketing


to a situation where highly sophisticated
scientists, subject to both public adulation In our view, the most vexing of the issues
and profit motive, are tempted to provide raised by neuromarketing is in the realm of
simplistic answers to what in reality are highly autonomy. One could argue that the essential
nuanced questions. objective of marketing as a discipline is to
The neuromarketing field has already seen manipulate consumer behavior – effectively, a
egregious abuse of such information. In an op- ‘‘soft’’ attack on autonomy. Moreover, many of
ed piece in the New York Times, a group of the traditional tools of marketing such as focus
academics and neuromarketers presented a groups and polls rely upon nuanced interpret-
small body of unpublished data on the ations of human psychology to draw con-
results of an fMRI study of political preferences clusions about consumer behavior and then
of so-called ‘swing voters’ (Iacaboni et al., use that information to inform marketing
2007). The results were presented essentially decisions. The implicit question in the present
as de facto probes into the minds of their discussion is whether the new tools of
subjects in one of the most widely read neuromarketing will provide sufficient insight
newspapers in the world; for several days into human neural function to allow manip-
after its publication, the article topped the ulation of the brain such that the consumer
rankings of those most frequently emailed by cannot detect the subterfuge and that such
readers of the online version of the New York manipulations result in the desired behavior in
Times. Given widespread concerns about at least some exposed persons. Such stealth
over-interpretation of fMRI data (Illes et al., neuromarketing is not possible with current
2006b), it was notable that the op-ed piece technology, but if developed would represent
contained none of the qualifications that a major incursion on individual autonomy. In
would normally accompany a scholarly article this analysis, we deliberately consider a set of
in a peer-reviewed journal. Academic col- issues that will only arise with developments in
leagues responded with considerable outrage technology that are yet to be realized and may
in letters to the editor (Aron et al., 2007) and never come to fruition. Nonetheless, it is in the
most visibly in a scathing editorial in Nature best interest of all parties involved in the
(Editorial, 2007). Incidents such as this draw discussion that these issues are considered
attention to the absence of a code of ethics for today rather than at some unspecified time-
responsible media – if not academic – point in the future, possibly in response to an
representation in the field of neuromarketing. adverse event. To appreciate how stealth
Such misrepresentation can do considerable neuromarketing may come to pass, we present
damage to the public trust of science and may a short discourse on phenomena in which
even generalize in public perception to create decision-making and motivation occur without
anxieties about the perceived motivations of explicit conscious awareness.
neuroscientists conducting human neuroima- It is well established that cognition is not a
ging research. In the current climate of monolithic process but rather one with various
tightening public funds for basic research, submodalities carrying out a variety of func-
any such anxiety threatens the future of the tions, some of which have been reasonably
field, with potential harms to public health. well delineated. Of relevance to the present
Academic and private sectors of neuroscience discussion are two well-studied phenomena in
research need to maintain close partnerships cognitive neuroscience. The first is blindsight
and work together to promote public trust and (Weiskrantz, 1990), in which individuals with
investment in neuroscience research. That damage to portions of their visual cortex
trust can be earned with forthright communi- declare themselves unable to see objects
cation and full disclosure of risks, benefits, and placed in the damaged portion of their visual
limitations of research findings. field, but when asked to guess are easily able to

Copyright # 2008 John Wiley & Sons, Ltd. Journal of Consumer Behaviour, July–October 2008
DOI: 10.1002/cb
298 Emily R. Murphy et al.

identify the object. These experiments unequi- Recommendations


vocally demonstrate that there is a distinction
between perception and conscious awareness. We conclude with a preliminary version of a
The second phenomenon is implicit learning code of ethics that we recommend be adopted
(Reber, 1993), in which normal subjects are by the neuromarketing industry. The over-
presented with seemingly random strings of arching goal of this code of ethics is to promote
letters and asked to memorize them. Unknown research and development, entrepreneurship,
to the individuals is the fact that there is a set of and profitable enterprise alongside beneficent
rules being employed, but their attention is and non-harmful use of neuroimaging techno-
directed towards memorization in the first part logy at all stages of development, deployment,
of the experiment. Later they are asked to and dissemination. These codes should be
describe the rules, and after protesting that discussed within the neuromarketing com-
they did not know there were any rules, they munity with the advice of independent aca-
are asked to guess. Remarkably, subjects demic researchers working in the area of
correctly identify the rules over 70% of the neural correlates of decision-making, social
time. A recent brief report in Science (Aarts behavior, and consumer preferences, as well as
et al., 2008) takes these phenomena one step neuroethicists and professionals in marketing
further and demonstrates how subliminal industry ethics. Proactive development of such
priming effects can actually motivate and guidelines within the professional community
mobilize people to respond more quickly will provide credibility and garner greater
and spend extra effort on a simple motor task. acceptance than those that may be imposed
The simple but elegant study provides evi- upon the field by regulatory bodies, especially
dence for the ‘‘human capacity to rely on if they arise in response to adverse events (Illes
mental processes in preparing and motivating et al., 2003). Timeliness in this effort is critical
behavior outside of awareness’’ (Aarts et al., given the rapid pace of advancements in the
2008). As the authors note, such responses are field.
of considerable utility insofar as they prepare
individuals to react quickly as circumstances  Protection of research subjects. Policies for
necessitate; at the same time, subliminal responsibly managing clinical findings,
priming represents an additional step towards including provision of sufficient subject pro-
realization of stealth neuromarketing. tections, procedures for informed consent,
If it is possible to carry out highly sophisti- and explicit protocols for dealing with inci-
cated cognitive tasks such as visual perception dental findings (Illes et al., 2006a) are a
or understanding grammatical rules, as well as requirement for any entity involved in brain
to enhance motivation and mobilization of research. Furthermore, private companies
voluntary action without the relevant neural offering financial incentives for participation
computation arising to the level of perceptual in research studies significantly greater than
awareness, then it follows that at some point in those offered in academic settings should be
the future insights from advanced technology in cautious of undue influence of such incen-
the neurosciences might allow corporations, tives, which may cross over into indirect
governments and others to influence decisions coercion. While most technologies used
and actions regarding brand preference without by neuromarketing may be considered mini-
the individual being aware of the subterfuge. mal risk, subjects should be advised and
We would propose such an eventuality as the reminded of their right to withdraw from
sensible point at which the erosion of personal any study for any reason, including minor
autonomy becomes so substantial that one discomfort.
might consider regulatory control, voluntary or  Protection of vulnerable niche populations
otherwise, to protect the citizenry from from marketing exploitation. Policies for
unwanted intrusions on individual agency. research subjects’ protection should include

Copyright # 2008 John Wiley & Sons, Ltd. Journal of Consumer Behaviour, July–October 2008
DOI: 10.1002/cb
Neuroethics of neuromarketing 299

additional ethics review for research done on sustained validity will require neuromark-
protected or potentially vulnerable subject eters to align their product with changing
populations. In addition, neuromarketing- technologies and expanding neuroscience
influenced advertising targeted at specific knowledge. Maintenance of safety and effi-
protected consumer groups should aim to cacy verification in any research, develop-
beneficently serve the special needs of the ment, and deployment of neuromarketing is
population without marginalizing, malign- absolutely required.
ing, or otherwise causing harm, whether
psychosocial or financial in nature. These recommendations form the basis for
 Full disclosure of goals, risks, and benefits. immediate and short-term action in the neuro-
Disclosure can be achieved through the marketing community and longer-term empiri-
publication of ethics principles that have cal research. Multidisciplinary collaboration
been adopted to protect the privacy and will enable efficient and positive progress
autonomy of human subjects and consu- along this continuum.
mers. Publication infers all aspects of the In the 50 years since Vicary’s subliminal
process from consent documents to report- imagery marketing stunt, interest in the possib-
ing and advertising and applies to both writ- ility that neuroscience might be used in the
ten and verbal communication. service of a marketing agenda has remained
 Accurate media and marketing representa- robust, with the current resurgence of interest
tion. Neuromarketing companies bear the and proliferation of companies in the new
burden of accurately representing their neuromarketing being noteworthy. It should
wares in media and business-to-business be emphasized that there is no evidence that at
marketing materials. At a minimum, this the present time that any advanced neurotech-
standard encompasses full disclosure of nology permits the types of insights and sub-
scientific methods and measures of validity sequent manipulation that Vicary envisaged
in mass media formats such as invited (Illes and Racine, 2005; Illes, 2007). However,
opinions, editorials, and news reports. the fact that one must insert qualifiers such as
Adherence to a code of responsible com- ‘‘at the present time’’ provides ample reason to
munication and truth-in-advertising will help carefully consider the implications that such a
maintain a positive and trusting public per- development might have and the means by
ception of brain science research as well as which it might be sensibly managed. In the
promote development of effective technol- meantime, there are a host of ethical issues in
ogies. the research, marketing, and deployment of
 Internal and external validity. Eaton and neuromarketing on the table right now. Such
Illes (2007) have outlined the challenges in proactive conduct is at the heart of the neu-
initial and sustained product validity in the roethical agenda.
commercialization of any neurotechnology.
We extend their recommendations here
to any marketing product influenced by
Acknowledgements
neuromarketing research with particular
attention to the point that the validity ques- This study was supported by grants from the
tions ‘‘arise most acutely for neurotechnol- Canadian Institutes of Health Research (Insti-
ogy that can be deployed without a tute for Neuroscience, Mental Health and
regulatory gatekeeper, such as the FDA’’ Addiction and the Ethics Office of CIHR), the
(Eaton and Illes, 2007). At a minimum, Canadian Foundation for Innovation, the
internal validity checks should ensure a suf- British Columbia Knowledge Development
ficiently comprehensive research database Fund, the Dana Foundation, the Greenwall
to provide meaningful and effective results Foundation, and the MacArthur Foundation-
to neuromarketing consumers. External and funded Law and Neuroscience Project.

Copyright # 2008 John Wiley & Sons, Ltd. Journal of Consumer Behaviour, July–October 2008
DOI: 10.1002/cb
300 Emily R. Murphy et al.

Biographical notes lization of neuroscience, with a particular


interest in the emerging debate over cognitive
Emily R. Murphy is a research fellow at the
enhancers.
Stanford Law School Center for Law and
the Biosciences, a research fellow on the
MacArthur Foundation-funded Law and Neuro-
science Project, and a visiting fellow at the References
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