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June 24, 2010
The Irregularity of Regulating the Ad Biz
Marketing and advertising come under regular lawmaker scrutiny. Do we deserve it?
Did you hear the news? Congress is currently taking action on one of our most pressing problems.
Energy independence? Immigration? Housing crisis? No, not quite.
Congress is on the verge of passing the Commercial Advertisement Loudness Mitigation Act (The “CALM” Act -- apparently, some congressional staffer is a wannabe copywriter.) It’s designed to regulate the volume of TV commercials. Won’t you sleep better at night knowing this issue is getting resolved?
I’d like to think there are more important things to worry about in our country. However, the CALM Act is only the latest law affecting advertising and marketing. Does our industry deserve more scrutiny than others? Can we avoid more regulation?
Advertising and marketing make a convenient target for legislation and regulation, from the volume of TV ads to product labeling, puffery claims, and everything in between. To politicians who can’t seem to make progress on bigger issues, attacking marketing and advertising is low-hanging fruit. The constant regulatory battles are also a major reason why organizations like the American Association of Advertising Agencies, the American Advertising Federation, and the Association of National Advertisers exist. It’s their job to prevent excess regulation and restrictions on marketing.
Most people in the advertising industry don’t think their work is the problem. It’s easy to believe you are not part of the problem, and that may be true. I never thought I was part of the problem, even as my clients pushed false claims and addictive behavior.
Taken as a whole, advertising and the people who make it are judged by the worst among us -- the telemarketers, the junk mail, the spam, the bait-and-switch retailers, the misleading labels, and yes, the loud commercials. That’s why it affects us all. Industry organizations like to say they can police their own kind, that laws are not needed. So they set “best practices,” but they don’t have any control over the actions of their members or their non-members. They have no authority to clamp down on the worst offenders, and the opposition brews.
If advertising gets regulation, it’s because some, but not all, marketers have done something to deserve it. Of course, the problem with our government -- federal, state, and local -- is that regulation is not uniformly applied and sometimes simply not enforced. Not in advertising or any other part of society. That’s how you get Enron, or Lehman Brothers, or the BP Deepwater Horizon.
Look at the bright side: Sometimes regulation stimulates creativity. Because as creative thinkers, we’re forced out of a comfortable box. I don’t remember a time when there were cigarette commercials on TV -- they stopped in the early '70s -- but that spurred the tobacco industry to get more creative. By pushing dollars away from TV buys into direct mail, database marketing, events, sponsorships, and promotions, cigarette makers got closer to the target they needed to reach, and since then, every other client category has adopted those tactics to reach an ever more elusive customer base.
It’s not hard to see where the next big regulatory targets are. Just look at what gets people angry and what politicians can latch onto. “Big Food” -- agribusiness, meat suppliers, fast-food purveyors, and other parts of the food supply -- will be next, particularly if obesity rates and recall rates rise and exercise rates don’t. Pharmaceutical marketing is never safe; it’s always teetering on the edge of taxation and more stringent restrictions. And anything that feels too invasive, too personal, or too deceptive will be scrutinized. In today’s world where marketing is pushed everywhere, even when consumers desire the kind of opt-in engagement offered in the interactive space, lawmakers will pay attention and grandstand against whatever they fear.
Frankly, if we can’t, or won’t, discourage bad marketing practices, we’re inviting more scrutiny. We can pursue the kind of creative ideas that don’t seem too intrusive, misleading, or downright sleazy, and make sure those kinds of ideas still achieve sufficient results.
Advertising will survive the CALM Act, along with any other regulations lawmakers dream up. Let’s just hope the better ideas can drown out the volume of the bad ones.

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Since 2002, Dan Goldgeier has been writing the most provocative advertising columns about advertising and marketing -- over 170 of them, covering every related topic you can think of. Now based in Seattle, Dan is a copywriter and ad school graduate who's worked at shops big and small. 

Visit his copywriting websitesee his LinkedIn profile or follow him on Twitter.

And please, buy his book for 99 cents.


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