"Consumer advocates say Americans are under siege by advertisers, and that the

problem is more serious than just irritating dinnertime phone calls or endless ads
during movie previews and commercial names for sports stadiums. The advocates
blame increasingly intrusive advertising for such societal ills as childhood obesity,
rising health-care costs and lost productivity because workplace e-mail boxes are
clogged by unsolicited emails, known as spam. Public outcry has resulted in a
national do-not-call list aimed at curbing telemarketing and may soon trigger a do-
not-e-mail list to deter spammers. Other advertising critics are seeking greater
restrictions on advertising to children. Advertisers and some advocacy groups,
however, warn that many of the proposed restrictions violate First Amendment
protections for free speech", Marshall P(2004).

http://library.cqpress.com.libproxy.lib.csusb.edu/cqresearcher/document.php?

id=cqresrre2004012300

Pro Con
Gary Ruskin Darryl Nirenberg
Executive Director, Commercial Alert . Counsel, Freedom to Advertise Coalition.
Written for The CQ Researcher, January Written for The CQ Researcher, January
2004 2004
It is a basic principle of law and common The proposal offered by Commercial
morality that advertisers must be honest Alert to require that television programs
with viewers. Advertisers can puff and be continually interrupted with “large”
tout and use all the many tricks of their and “conspicuous” pop-ups disclosing
trade. But they must not pretend that their placements as they appear represents an
ads are something else. unconstitutional infringement on
commercial speech rights.
This principle has been a cornerstone of
communications law since the beginning The proposal is impractical, would ruin
of the broadcast era. Congress first the entertainment experience for viewers
required broadcasters to identify their and would be unreasonably burdensome
sponsors in the Radio Act of 1927. The on programmers and advertisers. It
reasoning is obvious: “Listeners are ignores the facts that existing Federal
entitled to know by whom they are being Communications Commission regulations
persuaded.” adequately address the issue of
commercial sponsorship and that the
Yet current practice in the broadcast Federal Trade Commission, which
industry violates this principle broadly examines specific issues regarding
and systematically. Broadcasters not only product placement disclosure on a case-
fail to identify their sponsors; worse, they by-case basis, previously denied a petition
fail to identify the ads themselves and similar to Commercial Alert's.
instead pretend that the ads are merely
parts of shows. Such violation has become Product placement has occupied a well-
the new way of doing business. accepted place in film and television for
decades. In the real world, people eat,
Put simply, TV networks and stations are drink and wear brand-name products. The
shifting advertising from commercial visual picture painted for the viewer gains
breaks to programming itself. They are vibrancy when products are portrayed as
inserting branded products directly into they are used in everyday life. Such
programs, in exchange for substantial fees products help tell the story and sometimes
or other consideration. This advertising become the story.
technique, called “product placement,”
has become closely integrated into Longstanding disclosure rules permit a
program plots, to the point that the line program containing product placement to
between programming and “infomercials” be broadcast as long as the presence of
has become increasingly blurred. Some any product placement is noted. The rules
commentators see no line at all. protect the artistic integrity of the program
and preserve First Amendment rights
Television networks interweave while properly informing the public of the
advertising and programming so routinely presence of this form of commercial
that they are, in effect, selling to speech.
advertisers a measure of control over
aspects of their programming. Some TV Should Commercial Alert's proposal be
programs are so packed with product adopted, television programming would
placements that they approach the become virtually impossible to watch as
appearance of infomercials. The head of a scene after scene would be interrupted by
[casino] company that obtained repeated pop-ups flashing the word
product placements actually called one “advertisement.” Its likely result will be to
such program “a great infomercial.” Yet censor or ban this means of commercial
these programs typically lack the speech.
disclosure required of infomercials to
uphold honesty and fair dealing. The proposed restriction would run afoul
of the Supreme Court's holding that the
Television stations that cram their freedom of speech guaranteed by the First
programs with product placements, yet Amendment extends to commercial
fail to identify the sponsors in a speech as long as it is not misleading and
conspicuous way are brazenly violating involves a lawful activity. Advertising
the public's right to know who is seeking may be restricted only if: (1) the
to persuade them. government has a substantial interest in
restricting it; (2) the restriction materially
This is an affront to basic honesty. We advances the governmental interest; and
urge the Federal Communications (3) the restriction is only as extensive as
Commission to investigate current TV necessary.
advertising practices regarding product
placement and other embedded ads and to Based on its faulty assumption that
take the steps necessary to restore some Americans are unable to discern fact from
honesty and fair dealing to the fiction, Commercial Alert wants the
presentation of these ads by strengthening federal government to abandon precedent,
the sponsorship-identification rules so ads ignore the law and force networks to
are properly and prominently identified as continually interrupt broadcasts with pop-
ads. up disclosures. Fortunately, the
Constitution stands in the way.