Children’s Advertising: mediation through law


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To Debray (1999) and other mediologists, the subject of interest is not the technical innovation or technology itself but what is in between technologies i.e. the cultural practices, social beliefs, and communicated messages. The reason why the technology itself is only ancillary to these ‘in between’ aspects is because whilst technology is the means by which synchrony (present communication) is achieved, it is vis-a-vis social beliefs and the like that transmission (the more important transfer of communication over time via technologies and institutions) occurs. This is a critical theoretical development in communications heuristics because unlike in past communications theory, mediology is anathema to technological determinism. As Irvine states: ‘technologies can’t be usefully described as having “effects” on cultures or societies, because technology is culture and only empowered by culture’ (Irvine 2005).

I was going to do an unpacking of children’s advertising as a media a la Carey (1989) but while doing my research I realized that despite all that mediate this medium, from advertising agency giants like Ogilvy and pro-market neo-liberal ideology, to the power relations between Congress and watchdog groups like the Parents Television Council, US law was what stuck out to me the most to warrant a discussion of the mediation of children’s advertising.

The US system of consumer law assumes that consumers buy products based on rational choice, or an assessment of the products’ objective attributes (Ramsay 1996). It presupposes that the legal subject is a freely choosing, coherent, and rational being that is accountable for any of his/her actions in normal circumstances and with clear intentions. This rational consumer’s preferences are revealed through the choices he/she makes in the marketplace- not through psychological processes or non-obvious influences on human behavior (Ramsay 1996). Consequently, although there is no social scientific justification for such a dispositionist view of human agency, this assumption is pervasive in US law.

For example, current US law legalizes the use of advertising ‘puff’. Puffery is a nebulous grouping of bluster and hyperbolic imagery and language used in virtually all advertising such as ‘Coke adds life’ or ‘America’s Favorite Pasta’ even though there is no evidence of such claims (Yosifon 2006). This advertising tactic is legal because according to US law, no rational consumer would take these claims or any similar claims literally and seriously, as puffs are too subjective and vague (Yosifon 2006). Therefore, the law says that ‘mere puff’ does not give rise to liability. According to the FTC and common law jurisprudence, advertising that exaggerates happiness, excitement, fun, health, and vitality, is considered puffery; therefore, these types of ads, which encompass virtually all ads, are irrelevant to consumer deception concerns (Yosifon 2006).

Furthermore, corporations themselves have ironically shown that their tactics influence consumer behavior through puffing. In its attempt to convince the FTC that General Mills, Inc. is responsibly responding to America’s childhood obesity issues (and therefore not in need of advertising regulation), the food company explains how it markets healthful foods to children: ‘In order to encourage yogurt consumption, General Mills introduced Go-Gort and Trix Yogurt, and supported these products with appealing advertising emphasizing an association between fun and yogurt’ (Yosifon 2006, 536). In fact, their marketing campaign is so effective that a 2005 survey finds that 76% of children that consume yogurt like Go-Gurt and 74% like Trix, which is not only impressive in terms of sheer numbers but also in relative terms to the liking scores of dominant, junk food products like Popsicles and Oreos, which are, respectively, 77% and 74% (Yosifon 2006). As a result, General Mills successfully creates a new product category that did not formerly exist for children whilst encouraging children to consume a more nutritious snack. However, in flaunting the ease in which the company is able to influence children’s consumption via marketing tactics that are, according to the puffery doctrine, benign, General Mills ironically reveals that puffery is powerful. Because this is so, the current legal framework, which does not regulate the use of puffery, is wholly inadequate and flawed in its assumption of a rational consumer.

The fact that all this legal debate is not happening publicly all whilst advertising keeps legally doing what it’s doing reflects what McLuhan (in Czitrom 1982) would say is the content cleverly distracting us from the the real message embedded in the medium through the medium’s mediation. US law and its mediation of children’s advertising begs so many questions: how can the law assume that adult consumers are rational and therefore able to decipher the difference between a puff and a false statement? Let alone, how can children be expected by the law to do so? The essence of labeling someone a ‘child’ is to proclaim that he/she needs a guardian so how does society provide that guardian? What is the capitalist culture behind such laws that assume a rational consumer? Is there an inherent neoliberal ideology that is present in the relationship between regulation and the market? Can the Freedom of Speech regime (negative vs. positive freedoms of speech debate) in the US be considered as a party to how children’s advertising is conceived? etc.

 

References:

James W. Carey, “Technology and Ideology: The Case of the Telegraph,” excerpt from Carey, Communication as Culture: Essays on Media and Society. Revised edition. New York, NY and London, UK: Routledge, 1989.

Regis Debray, “What is Mediology?Le Monde Diplomatique, Aug., 1999. (Trans. Martin Irvine).

Martin Irvine, “Media Theory: An Introduction”

Daniel Czitrom, “Metahistory, Mythology, and the Media: The American Thought of Marshall McLuhan,” excerpt from Daniel J. Czitrom, Media and the American Mind: From Morse to McLuhan. Chapel Hill, NC: University of North Carolina Press, 1982

Yosifon, David G. (2006) ‘Resisting Deep Capture: The Commercial Speech Doctrine and Junk-Food Advertising to Children’ in Loyola of Los Angeles Law Review Vol. 39 (pp. 507-602)

Ramsay, Iain (1996) Advertising, Culture and the Law: Beyond Lies, Ignorance and Manipulation London, UK: Sweet and Maxwell