Perceptions and Realities

By David A. Bell

Lately, perceptions of our industry — false perceptions — are being appropriated and used against us. In short, we face some monumental challenges.

The biggest comes from an unholy trinity who would, if given free rein, undermine our business and trample our rights — while cloaking themselves in the mantle of consumerism.

This unholy trinity is composed of neo-protectionists, political opportunists, and regulatory abolitionists.

The neo-protectionists, both inside and outside the government, stake out what they define as the moral and ethical high ground. Then they parade their arguments for controlling advertising by virtually any means possible — based on the proposition that consumers cannot adequately protect themselves. Their position is not only wrong, it is intellectually bankrupt, elitist, and patronizing.

The political opportunists, both in office and seeking office, inevitably see advertising as an easy target: an easy target for potential tax revenue and an even easier target when pandering to voters’ fears and frustrations.

But it is the regulatory abolitionists who may pose the greatest challenge to our industry. These unduly aggressive bureaucrats are attempting to abolish the free flow of information. As such, they seek to achieve through threats and regulations what the legislative branch is probably unwilling to legislate and what, in any event, the judicial branch is unlikely to countenance.

Are these challenges new? No. However, protectionists, opportunists, and abolitionists are now more extreme in their rhetoric and tactics, and more dangerous in terms of their combined power.

When it comes to attacking commercial speech and violating First Amendment rights, you may be sure that we are an “equal opportunity target.” The forces against us include Democrats and Republicans. They are both “small c” conservatives and “small l” liberals. In seeking “big H” Headlines and pandering for “big V” Votes, they claim to protect a “gullible” public.

In fact, they ill serve their constituencies while doing equal disservice to the public at large, American business in general, and the advertising community in particular. Most of all, they disregard the rights, responsibilities, and laws that rule our nation.

In facing theses challenges — and let’s be clear, I am talking about the right to advertise tobacco, liquor, and gambling, just to mention the most obvious categories — there are disturbing issues of perception and reality.

The reality is that we are not pro-tobacco, nor are we pro-liquor or gaming. Neither our association nor our membership is of a single mind with regard to advertising in these categories. We have always supported, and will continue to support, a diversity of actions, opinions, and personal behavior. A.A.A.A. has always been big enough to welcome and encourage a wide range of attitudes.

At the same time, we as an association are — and must remain — sure, strong, and single minded with respect to the rights of these marketers to advertise legal products in non-deceptive, age-appropriate ways.

The pseudo-populists and misguided social engineers may not like our position, but it is the right place for us to stand. It may not be the popular thing. It may not seem to be the politically correct thing. But it is most assuredly the principled thing.

The truth is, we are damned near absolutists — even fundamentalists — on the subject of First Amendment rights and their link to commercial speech. That means drawing a line in the sand and doing battle every time someone or some group crosses the line. Every time. Not just when it is popular or convenient.

And to those who suggest that we are “hiding behind” the First Amendment — to those who would “modify” free speech protections because they are moderate in their views — I say that is philosophical and constitutional nonsense!

The reality is that we must fight the FDA, and others, today. We must guard against the slippery slope that can easily lead from tobacco, liquor, and gambling today, to a perfectly credible scenario tomorrow when other protectionists, opportunists, and abolitionists may want to protect us from butter in French restaurants or fat in regular mayonnaise.

Above all, let’s add an element of sanity if not sobriety to discussions of tobacco and alcohol advertising. We need to send the message that advertising regulation is not the answer to the abuse of legal substances; that smokers and drinkers bear the responsibility for their actions. Advertising can’t and won’t allow itself to assume that burden.

Meanwhile, I would welcome additional serious research on children’s attitudes toward the procurement and usage of adult products. Some officials at FDA, the Federal Trade Commission, the Federal Communications Commission, and even the White House would like to impose ad restrictions based on intuitive assumptions about advertising and kids. But intuition is not fact, and it is certainly not the caliber of evidence that would survive a First Amendment challenge before the Supreme Court.

One thing is certain: We cannot — either as an industry, or as a nation — allow our First Amendment to go up in smoke because various interested parties have an intuition about the effects of a cartoon camel or other advertising emblem on kids.

Nor, for that matter, can we allow the neo-protectionists, political opportunists, and regulatory abolitionists of this country to run roughshod over the First Amendment because a legal product may pose risks to those who, despite the information readily available, choose to indulge in its use.

Critics of advertising have the right to express their opinions and concerns freely. We, equally, must insist on our basic right to advertise legal products.