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The Antitrust Shadow Over Advertising Self-Regulation
Abstract
In response to public criticism and government regulation, the advertising community has developed programs of industry-wide self-regulation. A major difficulty with these programs, however, is the potential danger of antitrust violation. This paper reports findings of interviews with representatives of industry and government designed to clarify the limitations of the antitrust laws on advertising self-regulation. Guidelines for minimizing the antitrust risks of advertising self-regulation, which are derived from empirical data and the legal literature, are suggested.
Guided by diffusion theory, the executive directors of over 2,000 major trade associations were surveyed to determine the extent of their adoption of advertising self-regulation and the objective and perceptual factors that might account for non-adoption. The study found that the majority of associations reporting public dissatisfaction with the industry's advertising are sponsoring self-regulation programs, but not all industry groups with advertising problems are engaged in self-regulation. Based on the perceptual profiles of executives representing adopting and nonadopting associations, a program to accelerate the adoption of advertising self-regulation is suggested.
Asking the motives and nature of standards for deciding which ads are acceptable for publication, detailed descriptions of the standards, guidelines and day-to-day concerns were gathered from publishers and advertising managers of 164 magazines.
Since advertising media can reject any advertising submission, the clearance process is one of the most potentially effective and powerful advertising self-regulatory tools. Previous descriptive studies have found that clearance procedures vary greatly among television stations, and between the networks and individual stations (Rotfeld, Abernethy and Parsons 1990; Wicks 1991). Based on variables identified in the television literature, an overall model of influences on radio clearance practice is built.
Media owners and managers possess great power to select (and reject) advertising submissions. Regardless of the directives (or absence) of any self-regulation code, no television station must accept any commercial advertising it does not wish to carry. This study requested descriptions of the standards, guidelines and day-to-day concerns from U.S. commercial broadcast stations, asking the policies, procedures and nature of standards for deriding which commercials are acceptable for broadcast.
This paper examines to what extent the background presence of state regulatory capacity – at times referred to as the “regulatory gorilla in the closet” – is a necessary precondition for the effective enforcement of transnational private regulation. By drawing on regulatory regimes in the areas of advertising and food safety, it identifies conditions under which (the potential of) public regulatory intervention can bolster the capacity of private actors to enforce transnational private regulation. These involve the overlap between norms, objectives, and interests of public and private regulation; the institutional design of regulatory enforcement; compliance with due process standards; and information management and data sharing. The paper argues that while public intervention remains important for the effective enforcement of transnational private regulation, governmental actors – both national and international – should create the necessary preconditions to strengthen private regulatory enforcement, as it can also enhance their own regulatory capacity, in particular, in transnational contexts.
As the most visible element of the marketing communications mix, advertising has had its critics, and, given the choice, developed countries usually select a self-regulatory approach to deal with unacceptable advertising. The recent breakdown of one of the world's longest established advertising self-regulatory programs in Australia has reopened the debate that has taken place in the leading academic and business journals concerned with enhancing understanding of such regulatory systems. This article focuses on the role of education in assisting the industry and regulators concerned with advertising self-regulation to eliminate undesirable features of such systems in the future. The empirical work succeeds in making both a practical and theoretical contribution to this important area.
Self-regulation programs deter many advertising practices, but there are inherent limitations to its power in the United States. U.S. media vehicle managers’ advertising acceptance policies may influence advertising content, but their decisions often are focused on priorities other than consumer protection. This article describes the power limitations of U.S. self-regulation and media advertising acceptance policies, showing how self-regulation alone is unable to fulfill the public policy goal of discouraging false advertising during government deregulation.
Until the late 19th century, the controls on advertising in Britain and the US depended on complying with laws relating to defamation and on the ethical values of advertisers and media proprietors. During the 20th century, concerns about public safety from dangerous products or services, recognition of the need to safeguard people from misleading or untrue claims, and attempts to strike a balance in the interests of fair trading have led to movements for both self-regulation, as well as some legal restrictions on marketing and advertising practices. Differences in British and American practices have arisen from the nature of the legal systems and the cultural mores of the respective societies.
The UK and the USA have well-established systems of advertising self-regulation. This article examines selected similarities and differences of the ASA/CAP Committee System (UK) and the NAD/NARB system (USA), and recommends certain features of the British system for possible adoption by the NAD/NARB. This comparison should interest: (1) those involved directly in self-regulation or government regulation of advertising, (2) advertising and marketing managers and senior executives of multinational companies and their advertising agencies, (3) legislators and government officials, and (4) leaders of consumer groups. Comparative analysis can be a powerful tool with which to identify and crystalize issues, and to understand the nature of one's own system, as well as to suggest reasonable alternatives to improve it. Comparative analysis also invites future research in each national market to confirm, modify, or reject its conclusion.
As the most visible element of the marketing communications mix, advertising has had its critics and, given the choice, developed countries usually select a self‐regulatory approach to deal with unacceptable advertising. The recent breakdown of one of the world's longest established advertising self‐regulatory programmes in Australia has reopened the 20‐year old debate that has taken place in the leading academic and business journals concerned with enhancing understanding of such regulatory systems.
This paper focuses on the activity of code enforcement in improving the effectiveness of advertising self‐regulatory frameworks. The key findings of an Australian study, where its scheme has recently failed, are presented and discussed in this context and a key concept is developed. Copyright © 2003 Henry Stewart Publications
Information on the procedures, motives, and nature of standards for television commercial acceptance—descriptions of the guidelines and day-to-day concerns—were requested from advertising-supported stations operating in the United States. This generated a detailed descriptive profile of station concerns. The consumer protection utility of this form of self-regulation is discussed.
Research on advertising and public policy has been both plentiful and cross-disciplinary. Despite the vast knowledge base on the topic, an understanding of this body of research from different perspectives has not been achieved. This paper examines all articles on advertising and public policy that were published in five primary journals over a 24-year period. Categorical descriptive information on these 130 articles is presented along with a conceptual model that serves as a framework to understand the existing literature from the different disciplines and to provide a perspective on the pragmatic potential for the role of that literature in actual decision making on public policy. The literature is reviewed and perspectives on the future are offered.
What should be the roles of government, business, and consumers in consumer protection? The author discusses the limitations of government and business in consumer-protection efforts. He also raises the question of whether self-regulation can or should deal with social issues.
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