In 1791, Congress passed and the states ratified the First Amendment to the U.S. Constitution, promising, among other guarantees, to “make no law . . . abridging the freedom of speech, or of the press.” Over time, we have developed a shorthand label for the First Amendment, misnaming it the free-speech clause. The amendment ensures that citizens and journalists can generally say and write what they want, but it says nothing directly about commercial speech—any print or broadcast expression for which a fee is charged to organizations and individuals buying time or space in the mass media.

Whereas freedom of speech refers to the right to express thoughts, beliefs, and opinions in the abstract marketplace of ideas, commercial speech is about the right to circulate goods, services, and images in the concrete marketplace of products. For most of the history of mass media, only very wealthy citizens established political parties, and multinational companies could routinely afford to purchase speech that reached millions. The Internet, however, has helped to level that playing field. Political speech, like a cleverly edited mash-up video, or entertaining speech, like a music video by California teenager Rebecca Black singing about the weekend (the infamous “Friday” video on YouTube), can go viral and quickly reach millions, rivaling the most expensive commercial speech.

Although the mass media have not hesitated to carry product and service-selling advertisements and have embraced the concepts of infomercials and cable home-shopping channels, they have also refused certain issue-based advertising that might upset their traditional advertisers. For example, although corporations have easy access in placing paid ads, many labor unions have had their print and broadcast ads rejected as “controversial.” The nonprofit Adbusters Media Foundation, based in Vancouver, British Columbia, has had difficulty getting networks to air its “uncommercials.” One of its spots promotes the Friday after Thanksgiving (traditionally, the beginning of the holiday shopping season) as Buy Nothing Day.

Critical Issues in Advertising

In his 1957 book The Hidden Persuaders, Vance Packard expressed concern that advertising was manipulating helpless consumers, attacking our dignity, and invading “the privacy of our minds.”28 According to this view, the advertising industry was all-powerful. Although consumers have historically been regarded as dupes by many critics, research reveals that the consumer mind is not as easy to predict as some advertisers once thought. In the 1950s, for example, Ford could not successfully sell its midsize car, the oddly named Edsel, which was aimed at newly prosperous Ford customers looking to move up to the latest in push-button window wipers and antennas. After a splashy and expensive ad campaign, Ford sold only 63,000 Edsels in 1958 and just 2,000 in 1960, when the model was discontinued.

One of the most disastrous campaigns ever featured the now-famous “This is not your father’s Oldsmobile” spots that began running in 1989 and starred celebrities like former Beatles drummer Ringo Starr and his daughter. Oldsmobile (which became part of General Motors in 1908) and its ad agency, Leo Burnett, decided to market to a younger generation after sales declined from a high of 1.1 million vehicles in 1985 to only 715,000 in 1988. But the campaign backfired, apparently alienating its older loyal customers (who may have felt abandoned by Olds and its catchy new slogan) and failing to lure younger buyers (who probably still had trouble getting past the name Olds). In 2000, Oldsmobile sold only 260,000 cars, and GM had phased out its Olds division by 2005.29

As these examples illustrate, most people are not easily persuaded by advertising. Over the years, studies have suggested that between 75 and 90 percent of new consumer products typically fail because they are not embraced by the buying public.30 But despite public resistance to many new products, the ad industry has made contributions, including raising the American standard of living and financing most media industries. Yet serious concerns over the impact of advertising remain. Watchdog groups worry about the expansion of advertising’s reach, and critics continue to condemn ads that stereotype or associate products with sex appeal, youth, and narrow definitions of beauty. Some of the most serious concerns involve children, teens, and health.

Children and Advertising

Children and teenagers, living in a culture dominated by TV ads, are often viewed as “consumer trainees.” For years, groups such as Action for Children’s Television (ACT) worked to limit advertising aimed at children. In the 1980s, ACT fought particularly hard to curb program-length commercials: thirty-minute cartoon programs (such as G.I. Joe, My Little Pony and Friends, The Care Bear Family, and He-Man and the Masters of the Universe) developed for television syndication primarily to promote a line of toys. This commercial tradition continued with programs such as Pokémon and SpongeBob SquarePants.

In addition, parent groups have worried about the heavy promotion of products like sugarcoated cereals during children’s programs. Pointing to European countries, where children’s advertising is banned, these groups have pushed to minimize advertising directed at children. Congress, hesitant to limit the protection that the First Amendment offers to commercial speech, and faced with lobbying by the advertising industry, has responded weakly. The Children’s Television Act of 1990 mandated that networks provide some educational and informational children’s programming, but the act has been difficult to enforce and has done little to restrict advertising aimed at kids.

Because children and teenagers influence nearly $500 billion a year in family spending—on everything from snacks to cars—they are increasingly targeted by advertisers.31 A Stanford University study found that a single thirty-second TV ad can influence the brand choices of children as young as age two. Still, methods for marketing to children have become increasingly seductive as product placement and merchandising tie-ins become more prevalent. Most recently, companies have used seemingly innocuous online games to sell products like breakfast cereal to children.

Advertising in Schools

A controversial development in advertising was the introduction of Channel One into thousands of schools during the 1989–90 school year. The brainchild of Whittle Communications, Channel One offered “free” video and satellite equipment (tuned exclusively to Channel One) in exchange for a twelve-minute package of current events programming that included two minutes of commercials. Public pressure managed to get most junk-food ads removed from Channel One schools by 2006.

Over the years, the National Dairy Council and other organizations have also used schools to promote products, providing free filmstrips, posters, magazines, folders, and study guides adorned with corporate logos. Teachers, especially in underfunded districts, have usually been grateful for the support. Early on, however, Channel One was viewed as a more intrusive threat, violating the implicit cultural border between an entertainment situation (watching commercial television) and a learning situation (going to school). One study showed that schools with a high concentration of low-income students were more than twice as likely as affluent schools to receive Channel One.32

Texas and Ohio contain the highest concentrations of Channel One contracts, but many individual school districts and some state systems, including New York and California, have banned Channel One News. These school systems have argued that Channel One provides students with only slight additional knowledge about current affairs, and fear that students deem the products advertised—sneakers, clothing, cereal, and controversial sugar-flavored juices like SunnyD, among others—more worthy of purchase because they are advertised in educational environments.33 A 2006 study found that students remember “more of the advertising than they do the news stories shown on Channel One.”34 Though it has changed owners several times over the past ten years, Channel One is still in business.

Health and Advertising

Eating Disorders. Advertising has a powerful impact on the standards of beauty in our culture. A long-standing trend in advertising is the association of certain products with ultrathin female models, promoting a style of “attractiveness” that girls and women are invited to emulate. Even today, despite the popularity of fitness programs, most fashion models are much thinner than the average woman. Some forms of fashion and cosmetics advertising actually pander to individuals’ insecurities and low self-esteem by promising the ideal body. Such advertising suggests standards of style and behavior that may be not only unattainable but also harmful, leading to eating disorders such as anorexia and bulimia and an increase in cosmetic surgeries.

If advertising has been criticized for promoting skeleton-like beauty, it has also been blamed for the tripling of obesity rates in the United States since the 1980s, with more than two-thirds of adult Americans identified in 2014 as being overweight or obese. Corn syrup–laden soft drinks, fast food, and processed food are the staples of media ads and are major contributors to the nationwide weight problem. More troubling is that an obese nation is good for business (creating a multibillion-dollar market for diet products, exercise equipment, and self-help books), so media outlets see little reason to change current ad practices. The food and restaurant industry at first denied any connection between ads and the rise of U.S. obesity rates, instead blaming individuals who make bad choices. Increasingly, however, some fast-food chains offer healthier meals and calorie counts on various food items.

Tobacco. One of the most sustained criticisms of advertising is its promotion of tobacco consumption. Opponents of tobacco advertising have become more vocal in the face of grim statistics: Each year, an estimated 400,000 Americans die from diseases related to nicotine addiction and poisoning. Tobacco ads disappeared from television in 1971, under pressure from Congress and the FCC. However, over the years, numerous ad campaigns have targeted teenage consumers of cigarettes. In 1988, for example, R. J. Reynolds, a subdivision of RJR Nabisco, updated its Joe Camel cartoon character, outfitting him with hipper clothes and sunglasses. Spending $75 million annually, the company put Joe on billboards and store posters and in sports stadiums and magazines. One study revealed that before 1988, fewer than 1 percent of teens under age eighteen smoked Camels. After the ad blitz, however, 33 percent of this age group preferred Camels.

In addition to young smokers, the tobacco industry has targeted other groups. In the 1960s, for instance, the advertising campaigns for Eve and Virginia Slims cigarettes (reminiscent of ads during the suffrage movement in the early 1900s) associated their products with women’s liberation, equality, and slim fashion models. And in 1989, Reynolds introduced a cigarette called Uptown, targeting African American consumers. The ad campaign fizzled due to public protests by black leaders and government officials. When these leaders pointed to the high concentration of cigarette billboards in poor urban areas and the high mortality rates among black male smokers, the tobacco company withdrew the brand.

The government’s position regarding the tobacco industry began to change in the mid-1990s, when new reports revealed that tobacco companies had known that nicotine was addictive as early as the 1950s and had withheld that information from the public. In 1998, after four states won settlements against the tobacco industry and the remaining states threatened to bring more expensive lawsuits against the companies, the tobacco industry agreed to an unprecedented $206 billion settlement that carried significant limits on advertising and marketing tobacco products.

The agreement’s provisions banned cartoon characters in advertising, thus ending the use of the Joe Camel character; prohibited the industry from targeting young people in ads and marketing and from giving away free samples, tobacco-brand clothing, and other merchandise; and ended outdoor billboard and transit advertising. The agreement also banned tobacco company sponsorship of concerts and athletic events, and it strictly limited other corporate sponsorships by tobacco companies. These agreements, however, do not apply to tobacco advertising abroad (see “Global Village: Smoking Up the Global Market” on page 404).

Alcohol. In 2013, 88,000 people died from alcohol-related diseases, and another 10,000 died in car crashes involving drunk drivers. As you can guess, many of the same complaints regarding tobacco advertising are also being directed at alcohol ads. (The hard liquor industry has voluntarily banned TV and radio ads for decades.) For example, one of the most popular beer ad campaigns of the late 1990s, featuring the Budweiser frogs (which croak “Budweis-errrr”), has been accused of using cartoonlike animal characters to appeal to young viewers. In fact, the Budweiser ads would be banned under the tough standards of the tobacco industry settlement, which prohibits the attribution of human characteristics to animals, plants, or other objects.

Alcohol ads have also targeted minority populations. Malt liquors, which contain higher concentrations of alcohol than beers do, have been touted in high-profile television ads for such labels as Colt 45 and Magnum. There is also a trend toward marketing high-end liquors to African American and Hispanic male populations. In a recent marketing campaign, Hennessy targeted young African American men with ads featuring hip-hop star Nas and sponsored events in Times Square and at the Governors Ball and Coachella music festivals. Hennessy also sponsored VIP parties with Latino deejays and hip-hop acts in Miami and Houston.

College students, too, have been heavily targeted by alcohol ads, particularly by the beer industry. Although colleges and universities have outlawed “beer bashes” hosted and supplied directly by major brewers, both Coors and Miller still employ student representatives to help “create brand awareness.” These students notify brewers of special events that might be sponsored by and linked to a specific beer label. The images and slogans in alcohol ads often associate the products with power, romance, sexual prowess, or athletic skill. In reality, though, alcohol is a chemical depressant; it diminishes athletic ability and sexual performance, triggers addiction in roughly 10 percent of the U.S. population, and factors into many domestic abuse cases. A national study demonstrated “that young people who see more ads for alcoholic beverages tend to drink more.”35

Prescription Drugs. Another area of concern is the recent surge in prescription drug advertising. Spending on direct-to-consumer advertising for prescription drugs increased from $266 million in 1994 to $5.3 billion in 2007—largely because of growth in television advertising, which today accounts for about two-thirds of such ads. The ads have made household names of prescription drugs such as Nexium, Claritin, Paxil, and Viagra. The ads are also very effective: Another survey found that nearly one in three adults has talked to a doctor and one in eight has received a prescription in response to seeing an ad for a prescription drug.36 Between 2007 and 2011, direct-to-consumer TV advertising for prescription drugs dropped 23 percent—from $3.1 billion in 2007 to $2.3 billion in 2011—due to both doctors’ concerns about being pressured by patients who see the TV ads for new drugs and to notable recalls of heavily advertised drugs like Vioxx, a pain reliever that was later found to have harsh side effects. Still, in 2011, Pfizer spent $156 million on TV ads for Lipitor (a cholesterol-lowering drug that reduces the risk of heart attack and stroke), the highest amount spent for any prescription drug that year. But then, in 2012, spending rose again to over $3 billion.37

The tremendous growth of prescription drug ads brings the potential for false and misleading claims, particularly because a brief TV advertisement can’t possibly communicate all the relevant cautionary information. More recently, direct-to-consumer prescription drug advertising has appeared in text messages and on Facebook. Pharmaceutical companies have also engaged in “disease awareness” campaigns to build markets for their products. As of 2014, the United States and New Zealand were the only two nations to allow prescription drugs to be advertised directly to consumers.

Watching Over Advertising

A few nonprofit watchdog and advocacy organizations—Commercial Alert, as well as the Better Business Bureau and the National Consumers League—compensate in many ways for some of the shortcomings of the Federal Trade Commission and other government agencies in monitoring the excesses of commercialism and false and deceptive ads.

Excessive Commercialism

Since 1998, Commercial Alert, a nonprofit organization founded in part by longtime consumer advocate Ralph Nader and based in Portland, Oregon, has been working to “limit excessive commercialism in society” by informing the public about the ways that advertising has crept out of its “proper sphere.” For example, Commercial Alert highlights the numerous deals for cross-promotion made between Hollywood studios and fast-food companies. These include Warner Brothers’ partnership with Hardee’s for Man of Steel, and DreamWorks Animation’s partnership with McDonald’s for family-friendly flicks like The Croods and How to Train Your Dragon 2.

These deals not only helped movie studios make money as DVD sales declined but also helped movies reach audiences that traditional advertising can’t. As Jeffrey Godsick, Fox’s executive VP of marketing, has said, “We want to hit all the lifestyle points for consumers. Partners get us into places that are nonpurchasable (as media buys). McDonald’s has access to tens of millions of people on a daily basis—that helps us penetrate the culture.”38

Commercial Alert is a lonely voice in checking the commercialization of U.S. culture. Its other activities have included challenges to specific marketing tactics, such as HarperCollins Children’s Books’ creation of the Mackenzie Blue series, which included “dynamic corporate partnerships,” or product placements woven into the stories, written by the founder of a marketing group aimed at teens. In constantly questioning the role of advertising in democracy, the organization has aimed to strengthen noncommercial culture and limit the amount of corporate influence on publicly elected government bodies.

The FTC Takes on Puffery and Deception

Since the days when Lydia Pinkham’s Vegetable Compound promised “a sure cure for all female weakness,” false and misleading claims have haunted advertising. Over the years, the FTC, through its truth-in-advertising rules, has played an investigative role in substantiating the claims of various advertisers. A certain amount of puffery—ads featuring hyperbole and exaggeration—has usually been permitted, particularly when a product says it is “new and improved.” However, ads become deceptive when they are likely to mislead reasonable consumers based on statements in the ad or because they omit information. Moreover, when a product claims to be “the best,” “the greatest,” or “preferred by four out of five doctors,” FTC rules require scientific evidence to back up the claims.

A typical example of deceptive advertising is the Campbell Soup ad in which marbles in the bottom of a soup bowl forced more bulky ingredients—and less water—to the surface. In another instance, a 1990 Volvo commercial featured a monster truck driving over a line of cars and crushing all but the Volvo; the company later admitted that the Volvo had been specially reinforced and the other cars’ support columns had been weakened. A more subtle form of deception featured the Klondike Lite ice cream bar—“the 93 percent fat-free dessert with chocolate-flavored coating.” The bars were indeed 93 percent fat-free, but only after the chocolate coating was removed.39

In 2003, the FTC brought enforcement actions against companies marketing the herbal weight-loss supplement ephedra. Ephedra has a long-standing connection to elevated blood pressure, strokes, and heart attacks and has contributed to numerous deaths. Nevertheless, companies advertised ephedra as a safe and miraculous weight-loss supplement and, incredibly, as “a beneficial treatment for hypertension and coronary disease.” According to the FTC, one misleading ad said: “Teacher loses 70 pounds in only eight weeks. . . . This is how over one million people have safely lost millions of pounds! No calorie counting! No hunger! Guaranteed to work for you too!” As the director of the FTC’s Bureau of Consumer Protection summed up, “There is no such thing as weight loss in a bottle. Claims that you’ll lose substantial amounts of weight and still eat everything you want are simply false.”40 In 2004, the United States banned ephedra.

When the FTC discovers deceptive ads, it usually requires advertisers to change them or remove them from circulation. The FTC can also impose monetary civil penalties for companies, and it occasionally requires an advertiser to run spots to correct the deceptive ads.

Alternative Voices

One of the provisions of the government’s multibillion-dollar settlement with the tobacco industry in 1998 established a nonprofit organization with the mission to counteract tobacco marketing and reduce youth tobacco use. That mission became a reality in 2000, when the American Legacy Foundation launched its antismoking/anti–tobacco industry ad campaign called “Truth.”

Working with a coalition of ad agencies, a group of teenage consultants, and a $300 million budget, the foundation created a series of stylish, gritty print and television ads that deconstruct the images that have long been associated with cigarette ads—macho horse country, carefree beach life, sexy bar scenes, and daring skydives. These ads show teens dragging, piling, or heaving body bags across the beach or onto a horse, and holding up signs that say “What if cigarette ads told the Truth?” Other ads show individuals with lung cancer (“I worked where people smoked. I chose not to. But I got lung cancer anyway”) or illustrate how many people are indirectly touched by tobacco deaths (“Yeah, my grandfather died April last year”).

The TV and print ads prominently reference the foundation’s Web site, www.thetruth.com, which offers statistics, discussion forums, and outlets for teen creativity. For example, the site provides facts about addiction (more than 80 percent of all adult smokers started smoking before they turned eighteen) and tobacco money (tobacco companies make $1.8 billion from underage sales) and urges site visitors to organize the facts in their own customized folders. By 2007, with its jarring messages and cross-media platform, the “Truth” anti-tobacco campaign was recognized by 80 percent of teens and was ranked in the Top 10 “most memorable teen brands.”41 The “Truth” campaign at least partly explains the reported decline in teen smoking. Back in 2000, according to University of Michigan studies, 23 percent of all teens said they smoked. In 2014, that figure was down to 9 percent.42