Advertising Between the Lines of Commercial Speech

Advertising is becoming more and more grounded in society as time progresses. Advertisements are the means by which people fulfill a need for a product or service, otherwise adding value for both the producer and consumer. Lots of companies rely heavily on commercial speech within their advertising to get their brand name out, such as Mr. Clean and M&M. Alternatively, candy-lovers and your every day consumer alike rely on advertisements to know about the latest promotions or product that could be of value to their life.

Advertisements are only becoming more and more heavily relied on and in your face everywhere you go, which is why there needs to be a voice to regulate commercial speech. The federal government maintains the power to reject controversial advertisements as a violation of commercial speech; such as when a company is advertising a potentially harmful product.

The Central Hudson Gas & Electric Corp. v. Public Service Commission Case of 1980 set a precedent in the Supreme Court, determining whether commercial speech is violated or protected under the first amendment. The precedent birthed a four part test to determine whether the commercial speech shall maintain protection under the First Amendment; commercial speech is not protected if it 1) is unlawful and misleading, 2) if your practices could potentially endanger the health or safety of the area you occupy (government has interest in regulating the speech), 3) whether the regulation directly advances the government interest, 4) whether the regulation is no more extensive than necessary.

Considering the point of advertising is to maximize exposure for the company, most companies are marketing to such a vast audience for advertisements that it would be impractical for advertisement regulations to be controlled at the state level. For such reason, I believe that it’s only sensical that the federal government controls the protection of commercial speech within advertising. Four decades later the Central Hudson test still holds the precedent, despite the grey areas of interpretation; ultimately, the federal government holds the power to restrict advertisements that violate commercial speech laws.

Commercial speech is generally advantageous to the public, as it can truly provide products and services that allow one to maximize one’s full potential. The grey area of protection of commercial speech comes from government scrutiny on potentially dangerous products and advertisements. So long as the advertisements fully disclose the potential risks associated with their products and are marketing within federal laws, the advertisement should appeal to First Amendment protection.

For example, obviously, Marlboro can’t market to minors. Yet they can market to the 21+ demographic, so long as they’ve outlined the potential hazards of their product to the appropriate audience. With sufficient warnings and labelling to the correct marketing audience, I see no reason why all products that have already been federally legalized shouldn’t be granted protection of commercial speech.

Citations

Nelson, Brett, and Katy Finneran. “In Pictures: 24 Stunningly Dumb Warning Labels.” Forbes, Forbes Magazine, 4 Aug. 2011, https://www.forbes.com/2011/02/23/dumbest-warning-labels-entrepreneurs-sales-marketing-warning-labels_slide.html?sh=488187ba54fc.

O'Donoghue, Deirdre. “How the Central Hudson Test Influenced Commercial Speech.” Learn Hub, 26 Mar. 2019, https://learn.g2.com/commercial-speech.