Commercial Speech Flashcards
How is advertising than other speech?
i. It can be regulated more than other kids of speech ii. Certain elements that distinguish advertising from other forms of speech
What are five characteristics of advertising?
i. It is persuasive ii. The speaker has a vested interest in your response to the message iii. It is bought and paid for before it reaches the consumer iv. The consumer helps pay for the message v. The interest of the source makes the message particularly “sturdy”
What are the three conditions of modern advertising?
i. Brand names ii. Improved transportation iii. Mass media
What happened in Va. State Pharmacy Bd v. Va Citizens Council (1976)?
i. Citizens Council wanted to post a price poster comparing name brand drugs with generic 1. VA had a law prohibiting advertising of prescription drugs a. Commercial speech is protected unless that commercial speech might be deceptive or misleading b. Speech is not automatically outside first amendment protection simply because it is advertising
What happened in f. Central Hudson Gas and Electric Corp. v. Public Service Comm’n of New York (1980)?
i. Advertising with fliers, encouraging people to buy stoves and heaters ii. NY had law saying you can’t advertise utilities iii. Supreme Court said it was commercial speech, it is protected under VA Pharmacy Board
What is the Central Hudson Test?
i. Determine whether a regulation on commercial speech is constitutional 1. Is the ad accurate and does it advertise a legal product? 2. Does the government assert a substantial interest? 3. Does the regulation directly advance that interest? 4. Is the regulation narrowly drawn? ii. Purely commercial advertising is not protected iii. Speech is not automatically outside First Amendment protection simply because it is advertising iv. Non-deceptive commercial speech is protected by the First Amendment
What happened in Nike v. Kasky?
i. Nike responds to criticisms of its treatment of workers in foreign plants ii. Attorney Mark Kasky sues Nike for unfair and deceptive practices iii. Calif. Court of Appeals says Nike’s response is a part of a debate on matters of public concern iv. The Calif. Supreme Court says a commercial speaker is talking to a commercial audience v. The Supreme Court says nothing… vi. …but will have to sooner or later. vii. Commercial speech is protected by the FA nut can me regulated more than other kinds of speech
What is the Federal Trade Commission (FTC)?
Established by Congress in 1914 to prohibit “unfair methods of competition in commerce”
- In 1934, a court case allowed the FTC to regulate________. 2. In 1938, the FTC Act amended to prohibit __________. _____________ became a crime. 3. 1975, the FTC Act was amended to allow __________.
- The unfair marketing of candy to children 2. Unfair methods of competition in commerce, and unfair of deceptive acts of practices in commerce.” False advertising of food, drugs, and cosmetics also became a crime 3. Regulation of local methods of competition, including advertising
The FTC may regulate advertising if it can show _____________ and ___________.
a. It is acting in the public interest b. An ad was deceptive
How can you decide if an ad is deceptive?
i. 4 part test of deception ii. 1- Is there a representation, omission or practice that is likely to mislead? 1. Mockups are not allowed a. Campbell’s Noodle Soup but marbles in the bottom of bowls iii. 2- The representation, omission or practice must be likely to mislead a reasonable consumer iv. 3- The representation, omission or practice must be material 1. Anacin isn’t “just like ordinary aspirin tablets. It contains the pain reliever most recommended by doctors plus an extra active ingredient not found in the leading buffered aspirin.” v. 4- The representation or omission must be likely to cause harm
What six things does the FTC remedy before the fact?
i. Staff opinion letters ii. Advisory opinions iii. Industry guides iv. Policy statements v. Trade Regulation Rules
What six things does the FTC remedy after the fact?
- Consent decrees 2. Cease and Desist orders 3. Injunctions 4. Civil penalties 5. Criminal penalties
What does the Supreme Court say about Commercial Speech?
Non-deceptive commercial speech is protected by the First Amendment.
Are mockups allowed?
No
