Terms in this set (32)
Valentine v. Chrestensen
-submarine owner tried passing out leaflets to people to come onboard for a fee-violated city ordinance against leafletting for commercial purposes
*Supreme Court of the United States ruled that commercial speech is NOT protected under the First Amendment (1942; since has been reversed)
Bigelow v. Virginia
-struck down ban (VA) on advertising legal abortions in NY in states where abortion was illegal
*Supreme Court says 1st Amend. DOES have something to say about the control of commercial advertising (19875)
*AMBIGUITY STILL on commercial advertising- in this case, abortion ad had informative, factual information of PUBLIC CONCERN beyond STRICTLY commercial advertising
Virginia Citizens Consumer Council
-acting on behalf of prescription drug consumers, the Virginia Citizens Consumer Council challenged a Virginia statute that declared it unprofessional conduct for licensed pharmacists to advertise their prescription drug prices.
*the ban IS a violation of "commercial speech" under the First Amendment
*First Amend. DOES RESTRICT government efforts to control commercial advertising
True or false? First Amendment DOES protect commercial speech.
True. Economic motive does not mean the speech lacks importance or social merit.
Reasons to Restrict Advertising vs. First Amend. Interests
Bates v. State Bar of Arizona
-Arizona banned lawyers from advertising their services
*Supreme Court says if ads are DECEPTIVE they CAN be banned, BUT, CANNOT ban truthful advertising
Central Hudson Gas and Electric Co. v. Public Service Comm'n of New York
-The PSC, in the interest of conserving energy, enacted a regulation that prohibited electric utilities from promoting electricity use.
*The Court recognized New York's interest in promoting energy conservation and accepted that the PSC's regulation would directly further that interest. However, since the regulation restricted all promotional advertising regardless of its effect on electricity use, it violated the First and Fourteenth Amendment
*Supreme Court sets out standards for 1st Amend. protection of commercial speech (4-part Central Hudson test)
4-part Central Hudson test
*1.) Is the commercial message either misleading or related to unlawful activity? If so, it is not constitutionally protected and may be banned. If not:
2.) Does the gov. assert a substantial interested to be achieved by the restriction of the speech?
3.) Does the restriction directly advance this interest?
4.) Is the restriction no more extensive than necessary to further the government's interest?
*Central Hudson couldn't pass #4-ban was too broad because it applied to ALL promotional advertising, regardless of its effect on energy consumption (promotion of energy efficient devices were also banned)
True or false? Commercial speech has lesser protections than political speech.
True. The difference: speech proposing commercial transaction occurs in commerce, which has typically been subject to government regulation.
Bolger v. Youngs Drug Products Corp.
-Condom company; gave info about desirability/availability of condoms in general & mentioned its products in particular
Q: commercial or noncommercial speech?
*Court found pamphlets to be commercial speech because...
1.) the company paid for the pamphlets, a typical form of advertising
2.) the pamphlets included references to a SPECIFIC product
3.) the company had economic motive for mailing the pamphlets.
"The core notion of commercial speech is"...
"speech that does not more than propose a commercial transaction"
Rubin v. Coors Brewing Co.
-federal statute forbade beer labeling that disclosed the alcoholic content of beer-trying to prevent competition of alcohol strength among brewers
-FLUNKS CENTRAL HUDSON TEST
-Congress allows or even requires labeling w/ alcohol % on wine and spirits...allows beer cos. to tout strength with the term "malt liquor"
True or false? Supreme Court says First Amend. protects casino advertising in states where casinos are legal.
True. (Greater New Orleans Broadcasting Ass'n, Inc. v. United States)
Lorillard Tobacco Co. v Reilly
-Mass. banned cig. advertising w/in 1000 ft. of school or playground; ended up preventing all outdoor ad. since there were so many schools & playgrounds w/in radius.
*Supreme Court says state's interest in preventing underage tobacco is substantial/compelling, BUT the sale/use of tobacco products is LEGAL ACTIVITY...manufactuers/retailers have an interest in conveying TRUTHFUL information about their products to adults, and adults have interest in receiving such info.
Ways to deal w/ Deceptive Advertising
-self-regulation groups in the ad. industry
-screening by advertising media
-Federal Lanham Act lawsuits filed by competitors
-State attorney generals
What is the FTC & what do it do?
Federal Trade Commission
-investigates claims of deceptive advertising, typically for national advertising and claims related to health or safety
FTC jurisdiction includes...
-virtually ANY advertising practice, no matter how local.
-can look at ANY activity intended to draw attention to a product-labels, packaging, direct mail, promotional contests
Definition of Deceptive Advertising
"a material representation, omission, or practice that is likely to mislead a consumer acting reasonably under the circumstances"
"material"-important to a consumer's decision to buy a product
True or false? Express representations are what the ad actually says.
True or false? Implied representation can be FALSE, even if the ad is literally true.
True or false? Omission can make an ad false?
FTC has to show that consumer(s) of an ad's likely audience were actually mislead to prove deceptive advertising.
True or false? Puffery is not typically deceptive.
1. general, subjective claims about product's superiority
2. too exaggerated to be real
*no reasonable consumer would believe
FTC Enforcement Devices
-Cease and Desist Orders
-Civil & Criminal Penalties
True or false? FTC patrols the internet.
True or false? Section 43(a) of the federal Lanham Act puts the power of the court into private hands to police the marketplace.
True. But consumers CANNOT bring suit under the Lanham Act. It is designed to protect commercial interests alone.
Lanham Act Remedies
-corrective advertising orders
*must show ACTUAL DECEPTION of purchasers AND that deception caused DIRECT INJURY TO PLAINTIFF.
*Coca-Cola suing Minute Maid-did both.
What is the Texas state advertising law called?
"Deceptive Trade Practices-Consumer Protection Act"
*consumers are typically allowed to bring suit under such state acts, as are attorney generals & often county attorneys
True or false? Airline & Cigarette advertising are reserved for the federal government.
Definition of spamming.
Distribution of unsolicited, commercial e-mail messages.
CAN-SPAM Act stands for...
"controlling the assault of non-solicited pornography and marketing"
-DOESN'T ban spam (i.e. commercial e-mails)
-requires functional e-mail return address
-prohibits additional e-mails to someone indicates they don't want further e-mails
-BOTH FTC & state attorney generals have authority to enforce
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