Monday, July 13, 2015

Interesting Advertising Ethics

Neuromarketing; just a side note on a bizarre practice in the marketplace
Manipulated!!!  I wasn't going to spend any money, but I did!
It's been going on for a couple of decades as advertisers learn how to directly target our unconscious brain processes.  If they can bypass our intended decision-making and trigger an emotional purchase, they win, especially if we intended to pass up the item.
"... techniques used in the ad to override the consumer’s rational decision-making process...."*
That moves beyond persuasion to coercion, of course.  It intrudes well past a reasonable expectation of privacy inside our own heads.  We'll all enjoy the coming court battles, probably on A&E.  

The problem, as always, is that technology and culture change much faster than institutions and government regulation can.

Corporate neuromarketers:
There are more than 90 companies providing neuromarketing services to Fortune 500 companies.  A partial list of entities that appear to be using those neuromarketing services and methods:
  • A&E Television 
  • Blue Cross/Blue Shield California 
  • Olive Ranch
  • Campbell’s Soup 
  • CBS 
  • Citi Daimler 
  • Disney 
  • Frito-Lay 
  • Google 
  • L’Oreal 
  • McDonald’s 
  • Microsoft 
  • Nestle 
  • Procter & Gamble 
  • Scottrade 
  • Starcom 
  • MediaVest 
  • Viacom 
  • The Weather Channel

Potential Legal Issues*

The use of neuroscience to enhance advertising appeal raises a number of legal issues in three broad areas:

• Consumer Protection*
As neuromarketing techniques become more sophisticated and arguably more powerful, the industry will likely face increasing resistance from regulators concerned that consumers are being misled into believing they want or need a product they have no use for, or deceived into thinking a purchase arises from their rational choice whereas in fact they are being induced to act based on stimulated subconscious impulse. To regulators, these techniques may cross the line from fair encouragement to unlawful coercion. At least one European regulatory agency has already taken action against a financial services company employing neuromarketing. We expect there will be similar enforcement actions in the United States before long.

... so well received by millions
 ... but it's still just product marketing for sales.
• Privacy Issues*
Some of the more aggressive claims by neuromarketers about the power of their techniques to understand brain function and impact behavior have predictably raised privacy concerns among regulators and the general public. At a time of increased sensitivity to corporate monitoring of consumer behavior, thanks largely to the proliferation of Internet tracking and targeting technologies, the prospect of additional intrusions into personal thought processes has raised heightened concern. In addition to facing scrutiny by European data protection authorities and the Federal Trade Commission, neuromarketers may soon be confronted by the burgeoning privacy plaintiffs’ bar in the U.S., which in the last year alone has filed more than 150 lawsuits alleging that new marketing techniques, such as online behavioral advertising, violate consumer privacy.

• Tort Issues*
The use of neuromarketing techniques to induce purchase of a product which, if misused, could cause personal injury, raises important questions under the law of products liability. It is not at all difficult to imagine product liability claims being asserted, especially by or on behalf of children and other vulnerable groups, that neuromarketing wrongfully induced the claimants to use products that are unreasonably dangerous for them, or to over-consume or become dependent on unhealthy foods or beverages, by overriding their rational powers of self-control. Other tort claims may be advanced under a theory that by penetrating to internal areas of brain function, neuromarketing impermissibly “touches” a protected personal domain giving rise to liability for battery or assault.

The U.S. Federal Trade Commission will also have keen interest in neuromarketing techniques that are thought to be unduly persuasive, given the Commission’s mandate to prohibit “unfair and deceptive” trade practices under Section 5 of the FTC Act, particularly when it is used to sell products to children.

* from "Neuromarketing: Legal and Policy Issues" ~ Covington and Burling, LLP

Here's hoping for a full scale legal challenge and upheaval in the industry.  But that's rather unlikely any time soon, isn't it.

So what course might we choose that will let us and our families choose our own values and lifestyle?  Is there a vaccination for advertising vulnerability?

Hint: when your child mentions a brand name they prefer, is that reasoned thinking?