Grand Theft Oreo: The Constitutionality of Advergame Regulation
Grossman, Seth, The Yale Law Journal
In recent years, companies have increasingly embraced alternative forms of marketing that deviate from the conventional advertising model. One new type of marketing that has received particular attention is "advergames." The term--a combination of "advertisement" and "video games"--refers to video games created by companies to promote their products or brand. The use of advergames reflects a broader trend in marketing practices away from segmented advertisements and toward advertising messages that are integrated into what have traditionally been viewed as forms of highly protected noncommercial speech. (1) As the media landscape becomes increasingly filled with advertising hybrids--types of media that are essentially advertisements but are presented as, for example, movies, books, or songs-courts will have to decide how regulations of these hybrids should be evaluated. (2)
This Comment explores that issue by analyzing advergames used to promote unhealthy food to children. Because the use of these advergames has already prompted calls for government regulation, (3) this context provides an ideal vehicle for analyzing a vital but unexplored legal question: What First Amendment standard should apply to regulations of advergames? To address this question, this Comment will examine two highly unsettled areas of First Amendment law: the appropriate level of scrutiny for evaluating regulations of video games, on the one hand, and commercial speech, on the other. Applying these aspects of First Amendment doctrine to restrictions on advergames, this Comment proposes a general framework for how courts should review First Amendment challenges to regulations of advertising hybrids.
Part I explains the nature of advergames, why they have become central to advertising and marketing practices (including those for unhealthy food aimed at children), and what types of regulation may soon be applied to them. Part II examines a potentially major obstacle to the regulation of advergames: the line of recent federal cases that apply heightened First Amendment protection to video games. This Comment argues that these cases do not present an insurmountable barrier to the regulation of advergames because they do not hold that video games are a per se category of highly protected speech. Rather, properly read, these cases hold that video games are considered highly protected speech for the purposes of First Amendment analysis only if they have certain characteristics such as narratives, themes, and sophisticated visual and auditory elements. Because most, if not all, existing advergames do not possess these characteristics, this Comment concludes that they do not qualify for the heightened First Amendment protection given to movies, books, and some video games. As a result, Part III asserts that regulations of advergames should be assessed using the less restrictive standards for evaluating limitations on commercial speech, under which it would be possible for the government to regulate the use of advergames that promote unhealthy food to children. The Conclusion then discusses the broader implications of this argument for other types of advertising hybrids.
I. THE NATURE OF ADVERGAMES
Unlike traditional video games such as Grand Theft Auto--which now rival movies in the level of sophistication of their narratives, artwork, musical components, and production values (4)--advergames are typically rudimentary, involving relatively simplistic animation and music as well as minimal plot or character development. They feature the product in a prominent role and are often made available on the company's website or on general online gaming websites. (5) While advergames have become increasingly popular in a range of industries, (6) food companies have seized upon them with particular zeal to market unhealthy food--including candy, cookies, cereal, fast food, and soda--to children. Nabiscoworld.com, for instance, offers a range of advergames that incorporate its products, including Oreo Dunking, which challenges the player to catch as many Oreos as possible in her glass of milk. …