Interaction of Law and Ethics in Matters of Advertisers' Responsibility for Protecting Consumers

Article excerpt

There are basic dilemmas involving the interaction of advertising regulation and advertising ethics, and their relation to social responsibility in the field. Analysis contributes to understanding them, and hopefully to resolution as well.

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As a scholar of advertising regulation, I have tended to think of consumer protection as an external force imposed on advertisers. Here I examine how advertisers alternatively may choose on their own to apply ethics to such matters. The latter is potentially an additional aid to assuring consumer success and satisfaction in the marketplace. And yet, how much can we expect from it? Achievement of the potential seems not to be automatic--consider recent failures in the financial world to impose societal protections on activities unconstrained by law!

My examination does not involve as much straying from the topic of advertising law as I first expected, because it appears that advertisers' use of ethics is highly dependent on their observations of how the law is used on them. Consequently, the topic has become a look at the role of the two forces interactively--how law and ethics relate to each other in producing satisfactory degrees of consumer protection. Although my discussion concentrates on advertising and other sellers' speech, it can also be applied to various sellers' actions, such as the creation of financial instruments like derivatives, home loans, or credit cards.

With ad law I have been a long-term scholar, but with ethics I have not. A true scholar of ethics has, among other things, read the major systems devised by various analysts, many of them philosophers and many of them historical figures such as Thomas Aquinas. I find that very interesting, but I have never emphasized that kind of study because I couldn't pull myself away from the law topic. However, I have given some time to the thought that being responsible ethically is voluntary, while being responsible legally is not.

Being lawful is not a choice we make or reject simply on our own. Federal and state regulations require commercial speech to be nondeceptive in describing the item for sale. You can't volunteer to meet that requirement because you can't volunteer not to meet it, at least no longer than it takes the law to catch you. Sellers who are deceptive may be required to stop, and if they don't, they can face fines and sometimes even trips to jail. They can't volunteer to avoid that.

Ethical principles prohibit deceptiveness, too, and also other unfair acts. Unfairness is a difficult concept for which there is no space here. In brief it involves harms to people in addition to those caused by deception, with a popular example being advertising to children who may not understand that selling involves persuasion that may reflect insufficient regard for the buyer's interest. Ethics overall is an immensely broad topic, but here I will consider it only as it pertains to deception, which means interpreting ethical behavior simply as being truthful.

Ethical principles are not rules in the same sense that legal restraints are. They are neither uniformly nor formally agreed upon by all members of society, nor can the offenders of ethical rules be sanctioned or punished as by law. Violators can be hurt by social disapproval, but there's often nothing to assure that that will happen. Further, while the law, as an external force, is the same for everyone in commerce, ethics is within each person's mind, and so reflects individual and perhaps unique decisions. You can volunteer to avoid acting ethically, or to avoid even thinking about the topic.

Because of these differences, we can say that ethics begins where the law ends. Now I have heard ad people, and others too, disagree by arguing that a choice to obey the law is itself an ethical action. However, I regard that as, at best, an awfully low form of ethics, so low in fact that I personally don't regard it as ethics at all. …